Terms of Service
BY CLICKING THE “I ACCEPT” CHECKBOX DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING POWERSYNC CLICKWRAP AGREEMENT (“AGREEMENT”). THIS AGREEMENT GOVERNS YOUR USE OF JOURNEY MOBILE INCORPORATED’S POWERSYNC PLATFORM AND DOCUMENTATION (COLLECTIVELY, THE “PLATFORM OFFERING”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MAY NOT USE THE PLATFORM OFFERING. IF YOU ARE ACCESSING THE PLATFORM OFFERING ON A PAID OR UNPAID TRIAL, EVALUATION OR DEMONSTRATION BASIS, 1) JOURNEYAPPS RESERVES THE RIGHT TO TRACK AND VIEW ALL DATA AND SYSTEM USAGE OF THE PLATFORM OFFERING DURING THE TRIAL PERIOD; 2) THE PLATFORM OFFERING IS PROVIDED “AS IS” AND ALL WARRANTIES ARE DISCLAIMED; AND 3) THIS AGREEMENT AND ACCESS TO THE PLATFORM OFFERING MAY BE TERMINATED BY EITHER PARTY AT ANY TIME. ALL TRIALS, EVALUATIONS AND DEMONSTRATIONS OF THE PLATFORM OFFERING MUST BE IN A NON-PRODUCTION ENVIRONMENT, UNLESS CLEARLY INDICATED OTHERWISE.
These Terms of Service (referred to herein as the “Subscription Agreement”) is by and between Journey Mobile, Incorporated, with its principal offices at 3700 Quebec St, Ste 100 PMB 132, Denver, CO 80207, United States (“JourneyApps”) and the Customer identified on the applicable Order Form. This Subscription Agreement is effective as of the date the Customer clicks the “I Accept” checkbox associated with this Subscription Agreement, or the date set forth on the Order Form, if applicable (“Effective Date”). JourneyApps and Customer may be referred to individually as a “Party” or jointly as the “Parties.”
1.1 “Acceptable Use Policy” means the policy that sets forth the principles, guidelines and requirements governing the use by Customer of the Platform, available at powersync.com/acceptable-use-policy.
1.2 “Business Day” means Monday to Friday, 9am to 5pm Mountain Time, excluding United States Federal Holidays.
1.3 “Confidential Information” means the information described in Section 11.
1.4 “Customer Data” means all data, information or material that any User submits to the Platform in the course of using the Platform.
1.5 “Customer IP” means, with respect to this Subscription Agreement:
1.5.1 Customer’s software application code and digital assets, and all proprietary rights with respect thereto;
1.5.2 documentation, information and material of the Customer that are pre-existing as of the Effective Date of this Subscription Agreement, as applicable, or are created independently from this Subscription Agreement.
1.6 “Documentation” means the contents provided under the documentation section of the PowerSync website, or other URL as notified to the Customer in writing from time to time.
1.7 “Support” means technical support provided to Developer Users to address common issues and “How-To” questions.
1.8 “JourneyApps IP” means the Platform, the Platform Code, all Platform Updates and Upgrades and all copies and portions thereof and all proprietary rights thereto, including the functionality, design, look and feel thereof.
1.9 “Order Form” means a written ordering document or online order for the procurement of the Services.
1.10 “Password” means a sequence of alphanumeric characters in the form of a login ID, User password and/or Customer ID that permit access to the Platform, and password reset questions and answers which allows Customer to automatically reset Passwords.
1.11 “Payment Default” means that JourneyApps has not received Customer’s payment of a particular invoice within ten (10) Business Days following the payment due date specified on the invoice in accordance with the terms of an Order Form.
1.12 “Platform” means JourneyApps’ PowerSync technology platform, including the PowerSync cloud-hosted backend service as well as PowerSync software development kits (“SDKs”) together with the format, content, look and feel, sequence and functionality thereof, and the software application development tools and source code therein, including the Platform Updates and Upgrades.
1.13 “Platform Code” means any source code or object code of JourneyApps or its licensors included in the Platform.
1.14 “Platform Offering” means the PowerSync subscription service, consisting of (i) a license to access the Platform and the Documentation, (ii) the hosting of Customer Data on the Servers (if applicable), and (iii) any other services as JourneyApps may decide, at its sole discretion, to incorporate into the Platform Offering and provide to Customers from time to time.
1.15 “Professional Services” means (i) the training of Developer Users in the use of the Platform, (ii) consulting services related to the use of the Platform, and (iii) any other services agreed to between the Parties from time to time.
1.16 “Professional Services Fee” means the non-recurring fee for Professional Services, as set forth in an Order Form.
1.17 “Servers” means the third-party cloud computing resources on which the Platform operates.
1.18 “Services” means the Platform Offering together with the Professional Services.
1.19 “Subscription” means the procurement of the Platform Offering, which is limited to the term set forth in the applicable Order Form.
1.20 “Subscription Fee” means the recurring fee for the Platform Offering.
1.21 “Subscription Plan” means the specific features and functionality of the Platform, and the specific Services, that the Customer may access and use and that JourneyApps is obligated to provide, as set forth in an Order Form.
1.22 “Support” means the technical support for the Platform provided to Customer’s Developer Users by JourneyApps, according to the service levels set forth in Appendix A.
1.23 “Update” means one or more minor enhancements and bug fixes (patches) to the Platform, made generally available to the Customer at no charge.
1.24 “Upgrade” means one or more major enhancements to the Platform consisting of new features, functionality and/or technology, the availability of which may be subject to an additional Subscription Fee.
1.25 “User” means any user authorized by Customer to access and use the Platform for the purpose of either (i) integrating software applications with the Platform as a software developer (“Developer User”), or (ii) operating a software application as an end-user, where the applicable software application utilizes the Platform as an underlying technology (“End-User”).
2.1 Subject to the terms of this Subscription Agreement, the applicable Order Form and the Subscription Plan selected by Customer, JourneyApps grants to Customer a limited, non-transferable, non-exclusive right to access, and allow its authorized Users to access the Platform Offering, and agrees to provide the Professional Services, if any.
2.2 Customer may use the licenses purchased under this Subscription Agreement for Customer’s general business purposes.
2.3 Other than the foregoing right in Section 2.1, nothing in this Subscription Agreement shall be construed to grant to Customer, or any other person a right or license to access or use the Platform or any software or technology used by JourneyApps. JourneyApps retains all right, title, and interest in and to the Platform, including without limitation, all software incorporated into or used by the Platform, and this Subscription Agreement does not grant to Customer any intellectual property rights in the Platform or any of its components.
2.4 Customer shall not —
2.4.1 disclose, share, or publish the Passwords except to or with its authorized Users. Customer shall maintain the confidentiality of the Passwords;
2.4.2 copy, download, debug, or attempt to decompile, disassemble, or otherwise reverse-engineer or attempt to access or discover any Platform Code, know-how, format, database structure or maintenance, underlying ideas, underlying design techniques, underlying user interface techniques or algorithms of the Platform or allow any other party to do the same;
2.4.3 make or attempt to make any enhancements of, modifications to or derivative works of the Platform; or
2.4.4 resell, sublicense or otherwise provide access to the Platform to any persons other than authorized Users.
3. PLATFORM ACCESS.
3.1 Subject to the terms of the applicable Order Form, Users may access the Platform:
3.1.1 in the case of Developer Users, for the purpose of managing and maintaining the Customer’s Platform service, by using login credentials provided to the User by JourneyApps; and
3.1.2 in the case of End-Users, for the purpose of operating a software application that uses the Platform as an underlying technology.
3.2 Access to certain features and functionality of the Platform may be limited, depending on the Subscription Plan purchased by the Customer, as set forth in the Order Form.
3.3 Access to the Platform is limited to the maximum number of Users authorized to do so under an Order Form.
3.4 JourneyApps may enhance and update the Platform at its sole discretion on an ongoing basis. JourneyApps makes no representation regarding the nature and timing of Platform Enhancements, if any.
4. SUPPORT AND MAINTENANCE.
4.1 JourneyApps will provide Customer with the following support and maintenance services for the Platform during the term of Customer’s subscription to the Platform Offering:
4.1.1 Updates. JourneyApps will release Updates and Upgrades to the Platform that become available and ensure the Documentation remains current; and
4.1.2 Technical Support. JourneyApps will provide Support for the Platform to Developer Users, as described in Appendix A.
4.2 Uptime. JourneyApps will use commercially reasonable efforts to maintain the availability of the Platform in accordance with the service levels set forth in Appendix A, provided that Customer’s and Users’ rights and remedies with respect to any Platform downtime are solely as set forth in Appendix A. JourneyApps will have no responsibility for hosting, operating, supporting, maintaining, or servicing any of Customer’s or third-party-provided hardware or software.
4.3 Application Support and Maintenance Excluded. Support and maintenance of Customer’s software applications is the responsibility of Customer, and except as otherwise indicated, is excluded from the Services procured under this Subscription Agreement.
5. INVOICING, FEES AND PAYMENT.
5.1 Payment Terms. All fees are due and payable according to the terms of the Order Form. The fees set forth in an Order Form are exclusive of any sales, use or excise taxes. Any taxes, fees, duties or surcharges levied by any federal, state or local government entity as a result of the use of the Platform are the responsibility of the Customer. Specifically excluded are taxes assessed solely on the basis of JourneyApps’ total revenues, income or net worth.
5.2 Subscription Fees. Subscription Fees are calculated based on the Subscription Plan selected by the Customer. User rights may be reassigned from one person authorized to be a User to another person authorized to be a User from time to time as changes in Customer’s requirements necessitate. Except as otherwise limited by the Subscription Plan, or otherwise described in an Order Form, each User may make unlimited use of the Platform Offering from any location worldwide.
5.3 Payment Default. If Customer is in Payment Default and has been notified by JourneyApps of such Payment Default and fails to cure the Payment Default within ten (10) Business Days of receiving such notification, then JourneyApps reserves the right to suspend or terminate Customer’s access to the Platform until the Payment Default is cured. In the event that Customer subsequently cures the Payment Default, JourneyApps shall lift the suspension within twenty-four (24) hours after receiving payment from Customer. Suspension for Payment Default will not relieve Customer from its obligation to pay amounts due.
5.4 Fee Revision. JourneyApps shall have the right to review and revise the Subscription Fees at any time, which change shall be effective as of the Subscription renewal date following the fee revision.
6. TERM, TERMINATION AND SUSPENSION.
6.1 Term. This Subscription Agreement shall commence on the Effective Date and, unless terminated earlier as set forth below, shall continue for the duration of any subscription purchased in an applicable Order Form. Subscriptions automatically renew for successive terms, unless and until terminated according to the terms of the Order Form.
6.2 Termination for Breach. Either Party is entitled to terminate this Subscription Agreement in whole or in part, if the other Party commits a material breach of any of its obligation(s) under this Subscription Agreement and does not remedy such breach within twenty (20) calendar days of receiving a written notice requesting that such Party remedy the breach.
6.3 Termination Due to Payment Default. In the event of Payment Default which remains uncured for more than ten (10) calendar days after notification from JourneyApps, JourneyApps may terminate this Subscription Agreement, by providing at least ten (10) calendar days’ prior written notice to Customer.
6.4 Termination for Convenience. Either Party may terminate this Subscription Agreement for convenience prior to the end of the applicable Term.
6.5 Termination for Violation of Acceptable Use Policy. If JourneyApps, in its sole and reasonable discretion, determines that any User is violating the Acceptable Use Policy, is using the Platform for purposes or in a manner not intended, or otherwise is conducting itself in a manner that could reasonably be anticipated to adversely affect the reputation of JourneyApps or that adversely affects the Platform or the use of the Platform by other JourneyApps customers, then JourneyApps will have the right to terminate immediately and without notice the Passwords and account of the offending User and re-activate said Password and User account only after receiving satisfactory evidence from Customer that such violation has been cured.
6.6 Effect of Termination. Upon termination of this Subscription Agreement, Customer’s and all Users’ access to the Platform shall immediately cease, and JourneyApps will terminate all User Passwords, accounts and use of the Platform, and shall cease providing the Services.
7. CUSTOMER’S OBLIGATIONS.
7.1 Customer agrees that JourneyApps shall have the right to use, in any manner and for any purpose, any metadata about the Platform gained as a result of any User’s use of the Platform, subject to the terms of Section 8 and Section 11 herein.
7.2 Customer and all its Users’ use of the Platform will comply with all terms of this Subscription Agreement and any applicable Order Form, including the Acceptable Use Policy.
7.3 Customer and JourneyApps will each comply with all (i) relevant export laws and regulations of the United States and, to the extent applicable, export and import regulations in other countries or territories (“Export Laws”) to ensure that neither the Platform nor any Application is used with respect to any encryption products, or otherwise to export, directly or indirectly, any item or data in violation of Export Laws; and (ii) all applicable local, state, national and foreign laws, treaties and regulations in connection with the use of the Platform, including those related to data privacy, international communications and transmission of technical or personal data.
7.4 Customer shall notify JourneyApps promptly of any unauthorized use of any Password or account or any other known or suspected breach of security, and shall notify JourneyApps promptly and use reasonable efforts to stop immediately any copying or distribution of the Platform Code or JourneyApps’ Confidential Information that is known or suspected by Customer or any User.
7.5 Customer shall ensure that no person who accesses the Platform through the use of a Password issued to a User will impersonate another User of the Platform or provide false identity information to gain access to or use the Platform.
7.6 JourneyApps does not own or have any responsibility for any Customer Data. As between Customer and JourneyApps, Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of all Customer Data, and JourneyApps shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, except as a result of the gross negligence of JourneyApps or its sub-contractors.
8.1 As between the Parties, the JourneyApps IP are, and at all times will remain, the exclusive property of JourneyApps. Nothing in this Subscription Agreement or an Order Form shall be construed to transfer to Customer, any User or any other person any ownership interest in any of the foregoing. JourneyApps reserves all rights to the foregoing that are not specifically granted to Customer in this Subscription Agreement.
8.2 The Customer IP and the Customer Data will at all times remain the exclusive property of the Customer.
8.3 JourneyApps represents to Customer that JourneyApps has the right to provide access to the Platform to Users on the terms and conditions stated in this Subscription Agreement, and that, to JourneyApps’ knowledge, a User’s use of the Platform on the terms and conditions stated herein will not violate any patent, copyright, trademark or other intellectual property right of any third party.
8.4 Except as expressly permitted by this Subscription Agreement, Customer shall not:
8.4.1 modify, copy, create derivative works from, distribute, or sublicense the JourneyApps IP;
8.4.2 use the JourneyApps IP in any way that allows third parties to use or benefit from the JourneyApps IP; or
8.4.3 reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the source code embedded in the Platform.
8.5 Except as expressly permitted by this Subscription Agreement or otherwise required to provide the Services, JourneyApps shall not:
8.5.1 modify, copy, create derivative works from, distribute, sell or sublicense the Customer IP or Customer Data; or
8.5.2 use the Customer IP or Customer Data in any way that allows third parties to use or benefit directly from the Customer IP or Customer Data.
9.1 JourneyApps will maintain a security report in connection with the Platform Offering, describing security measures in use in the Platform Offering (“Security Report”). Subject to agreed-upon usage terms, JourneyApps will provide Customer with JourneyApps’ then-current Security Report for the Platform Offering. During the term of this Subscription Agreement, JourneyApps will maintain such security measures identified in the then current Security Report or, if JourneyApps determines that more effective measures should be implemented, apply such replacement security measures.
9.2 Customer may perform security testing with respect to the Platform Offering, but only with JourneyApps’ prior written consent, not to be unreasonably withheld.
10. DATA SUB-PROCESSING AND TRANSFER.
10.1 Customer authorizes JourneyApps to use one or more internationally-recognized and reputable cloud storage and processing providers, including Amazon Web Services, Inc. and Microsoft Azure (each a “Sub-Processor”) to store and process Customer Data on its behalf for the sole purpose of providing the Platform Offering to Customer.
10.2 JourneyApps shall enter into and maintain binding agreements with each Sub-Processor which provides for the Sub-Processor’s compliance with the terms of this Subscription Agreement, the European Union’s General Data Protection Regulation (GDPR) (EU) 2016/679 (the “EU GDPR”) and all other data protection legislation applicable to the Services.
10.3 JourneyApps may transfer Customer Data across international borders only if required to provide the Platform Offering or to improve data security, unless an Order Form, an addendum to this Subscription Agreement or any data protection legislation, including the EU GDPR, prohibits such a transfer or specifies that Customer Data must be stored in a specific country. Notwithstanding the foregoing, and subject to compliance with all applicable laws, JourneyApps may transfer Customer Data across international borders upon written consent from Customer.
11.1 Each Party agrees to keep confidential and not disclose or use, except in performance of its obligations under this Subscription Agreement, confidential or proprietary information related to the other party’s technology or business (collectively, “Confidential Information”) that the receiving party learns in connection with this Subscription Agreement.
11.2 JourneyApps’ Confidential Information includes, but is not limited to, the pricing and terms and conditions of this Subscription Agreement (and any Order Form under it), Passwords, its Platform Offering features, mode of operation, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, Platform design and architecture, the Platform Code, know-how, format, database structure or maintenance, underlying ideas, underlying design techniques, underlying user interface techniques or algorithms, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, and other technical, business, product, marketing and financial information, plans and data of the Platform.
11.3 Customer’s Confidential Information includes, but is not limited to, Customer Data and Customer IP.
11.4 Each Party agrees to hold the Confidential Information in strictest confidence and shall not use (except as expressly authorized by this Subscription Agreement) or disclose Confidential Information without the prior written consent of the other Party during the term of this Subscription Agreement and for a period of three (3) years after the termination of this Subscription Agreement (and any Order Form under it).
11.5 Confidential Information shall not include information the receiving Party can document —
11.5.1 is in or (through no improper action or inaction of the receiving Party) becomes part of the public domain;
11.5.2 was rightfully in its possession or known by it prior to receipt from the disclosing Party;
11.5.3 was rightfully disclosed to it by another person without restriction; or
11.5.4 was independently developed by it without access to and without use of any Confidential Information of the disclosing Party.
11.6 Each Party, with prior written notice to the disclosing Party, may disclose such Confidential Information that is required to be disclosed pursuant to the lawful requirement or request of a governmental entity or agency, provided that reasonable measures are taken at the disclosing Party’s expense to guard against further disclosure, including without limitation, seeking appropriate confidential treatment or a protective order, or assisting the other Party to do so.
12. LIMITED WARRANTY AND DISCLAIMER.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, JOURNEYAPPS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. JourneyApps does not warrant that the Platform will operate without interruption or be free of error or completely secure, except as expressly provided in Appendix A.
13. LIMITATION OF LIABILITY.
JOURNEYAPPS DOES NOT MONITOR OR EXERCISE CONTROL OVER THE CONTENT OF THE INFORMATION TRANSMITTED THROUGH ITS PLATFORM. USE OF THE PLATFORM OR ANY INFORMATION THAT MAY BE OBTAINED THEREFROM IS AT CUSTOMER’S RISK. JOURNEYAPPS SHALL NOT BE LIABLE FOR ANY LOSS OF DATA WHETHER RESULTING FROM DELAYS, CORRUPTION OF DATA, SERVICE INTERRUPTIONS OR OTHERWISE. IN NO EVENT SHALL JOURNEYAPPS BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), INCLUDING BUT NOT LIMITED TO DIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL AND INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF PROFITS OR LOSS OF REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, THE RESULTS OF USE OR THE INABILITY TO USE THE PLATFORM BY CUSTOMER OR ANY USER.
14. INDEMNIFICATION AND DEFENSE OBLIGATIONS.
14.1 Customer shall indemnify, defend and hold harmless JourneyApps and its officers, directors, shareholders, employees and affiliates (collectively, “Indemnitees”) from and against any and all claims, demands, judgments, suits, actions, damages, liability, losses and expenses (including attorneys’ fees and litigation costs) that any Indemnitee may incur as a result of Customer’s or a User’s breach of this Subscription Agreement or any User’s use of or inability to use the Platform.
14.2 JourneyApps shall defend or settle any claim brought against Customer by a third party that the Platform, when used in accordance with the terms and conditions of this Subscription Agreement, violate any patent, copyright, trademark or other intellectual property right of any third party, provided JourneyApps shall retain sole control over the defense and settlement thereof, and provided Customer gives JourneyApps prompt notice of any such claim and provides reasonable cooperation to JourneyApps at JourneyApps’ expense in the investigation and defense of such claim.
14.3 If JourneyApps believes, in its sole discretion, that the Platform infringes a third party’s intellectual property rights, then JourneyApps may, at its sole and absolute discretion and at its expense:
14.3.1 procure the right to use the Platform as provided herein;
14.3.2 replace the Platform with other non-infringing service or software with similar functionality;
14.3.3 suitably modify the Platform so that it does not infringe; or
14.3.4 if the foregoing options are commercially unreasonable, terminate this Subscription Agreement by providing thirty (30) calendar days’ written notice.
14.4 JourneyApps shall have no obligation to indemnify Customer pursuant to this Section 14 with respect to the Platform, or portions or components thereof, to the extent that the claim of infringement relates to portions or components (i) not supplied by JourneyApps, (ii) made in whole or in part in accordance with Customer specifications, or (iii) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination.
14.5 THE FOREGOING PROVISIONS OF THIS SECTION 14 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF JOURNEYAPPS, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
15.1 Governing Law and Arbitration. This Subscription Agreement shall be deemed to have been concluded in, and shall be construed pursuant to the laws of, the State of Delaware and the United States without regard to conflict of laws provisions thereof. This Subscription Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded. Any controversy or claim arising out of or relating to this Subscription Agreement, or the breach thereof, will be fully and finally settled by binding arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) of the JAMS/Endispute or any successor entity. The arbitration will be held in Denver County, Colorado.
15.2 Relationship. Notwithstanding any provision hereof, for all purposes of this Subscription Agreement, each Party shall be and act as an independent contractor and not as a partner, joint venture or agent of the other and shall not bind nor attempt to bind the other to any contract.
15.3 Severability. If any provision of this Subscription Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Subscription Agreement shall otherwise remain in full force and effect and enforceable.
15.4 Waiver. Any waivers or amendments shall be effective only if made in writing and signed by both Parties. The waiver by either Party of a breach of this Subscription Agreement or any right hereunder shall not constitute a waiver of any subsequent breach of this Subscription Agreement; nor shall any delay by either Party to exercise any right under this Subscription Agreement operate as a waiver of any such right.
15.5 Assignment and Subcontractors. This Agreement shall be binding and inure to the benefit of the Parties and their respective and permitted successors and assigns. JourneyApps may use subcontractors to assist in performing its obligations under this Subscription Agreement, provided JourneyApps remains responsible for any subcontractor’s compliance with the applicable terms of this Subscription Agreement. Neither Party may assign this Subscription Agreement without the consent of the other Party, except in the event of a corporate reorganization, merger, acquisition, or sale of all or substantially all of such Party’s assets.
15.6 Entire Agreement. This Subscription Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Subscription Agreement. This Agreement may be amended only through a written agreement signed by duly authorized representatives of the Parties. If an Order Form conflicts with this Subscription Agreement, this Subscription Agreement shall take precedence unless the Order Form expressly identifies select provisions of this Subscription Agreement to be superseded. The terms of any purchase order supplied to JourneyApps will be null and void.
15.7 Force Majeure. JourneyApps shall not be deemed to be in default of any provision of this Subscription Agreement or be liable for any delay, failure of performance or interruption of the Platform resulting directly or indirectly from any of the following, without limitation: acts of any governmental body; war; insurrection; sabotage; terrorism; embargo; fire, flood, earthquake, viral or bacterial outbreak, epidemic or pandemic, or other acts of God; strike or other labor disturbance; interruption of or delay in transportation; unavailability or interruption or delay in telecommunications or third party services (including DNS propagation); failure of third party software or hardware or inability to obtain raw materials; supplies; or power used in or equipment needed for provision of the Platform.
15.8 Signature/Counterparts. The Parties agree that electronic signatures shall be valid signatures for all purposes hereunder and shall bind the Parties. This Subscription Agreement and any documents related hereto may be executed in counterparts.
15.9 Survival. Provisions herein which by their nature extend beyond the termination of this Subscription Agreement shall remain in effect until fulfilled.
15.10 Notices. Any notice, report, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been duly given if delivered personally, or via e-mail or certified mail, postage prepaid, in each case, to the respective addresses of the parties as set forth in this Subscription Agreement.
15.11 Equitable Relief. In the event of a material breach of this Subscription Agreement adversely affecting JourneyApps’ proprietary rights in the Platform or its Confidential Information, that would cause irreparable injury to JourneyApps for which monetary damages would not be an adequate remedy, JourneyApps shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law or equity.
15.12 Internet. Customer acknowledges and agrees that the ability of Customer to access the Platform is subject to the availability of connection services to and within the Internet and to other network functions within and around the Internet and that the Internet by its nature is not fault-tolerant. Notwithstanding any other provision of this Subscription Agreement, JourneyApps will not be responsible or liable for:
15.12.1 any alterations of or additions to the Platform by a party other than JourneyApps or its sub-contractors;
15.12.2 use of the Platform by Customer in a manner for which it was not designed; or
15.12.3 use of the Platform by Customer in a configuration not set forth in the documentation for the Platform or in conjunction with systems, products, or components not reasonably anticipated to be used with the Platform.
Appendix A: Service Level Agreement
1. LIMITED WARRANTY.
1.1 JourneyApps warrants that the Platform will perform substantially in accordance with the performance criteria set forth in this Service Level Agreement (“SLA”). The foregoing warranty is only for the benefit of Customer, and will only apply if (i) the Platform has been used at all times in accordance with the terms of this Subscription Agreement, the Acceptable Use Policy and other instructions for use provided by JourneyApps; and (ii) no modification, alteration or addition has been made to the Platform by persons other than JourneyApps or JourneyApps’ authorized representatives.
1.2 JourneyApps does not warrant the results obtained through use of the Platform. Additionally, JourneyApps is not responsible for problems caused by changes in, or modifications to, the operating characteristics of any computer hardware or operating system of Customer, a User or any third party, nor is JourneyApps responsible for problems that occur as a result of the use of the Platform in conjunction with software of third parties or with hardware that is incompatible with the operating systems, software frameworks, or web browsers (if applicable) with which the Platform is intended to be used.
1.3 As JourneyApps’ entire liability and Customer’s exclusive remedy for the breach of the foregoing warranty, JourneyApps shall, at its sole option, use reasonable efforts to repair or replace the nonconforming elements of the Platform. If neither of the foregoing options is commercially practical, JourneyApps will terminate this Subscription Agreement and provide a pro-rata refund to Customer for periods following the date of termination.
1.4 In addition to the support and maintenance information and terms included in this Service Level Agreement, JourneyApps may provide Customer and Developer Users with additional guidance and materials in order to ensure the optimal functioning of the Platform. Where a conflict exists between the support levels specified in this SLA and any additional guidance and materials provided to Customer and its Developer Users, the terms of this SLA shall prevail.
2. AVAILABILITY, SUPPORT AND MAINTENANCE.
2.1 JourneyApps will use commercially reasonable efforts to ensure the Platform is made available according to the Support service levels specified in the table below, as selected by Customer in the Order Form:
Incidents may be reported at any time; however, Report Times above are used to measure the Response and Resolution Times
2.2 Online Support Case Management. Access to Support service as per Section 4 of this Service Level Agreement.
2.3 Customer Success Onboarding. Guidance from JourneyApps customer success manager at the start of the initial engagement with the Customer on topics related to the use of the Platform, and available documentation and other online resources.
2.4 Documentation. Access to knowledge base on the use of the Platform and its components at https://docs.powersync.com/.
2.5 Customer Success Manager. Access to assigned JourneyApps staff for advice on issues that may affect Customer’s use of the Platform.
2.6 Availability. Availability per month of hosted cloud-based back-end services for access by Customer and Users shall be as set out above. Availability shall have the meaning as defined below.
2.7 Incident Report Times/Incident Resolution Times. Incidents may be reported at any time; however, Report Times above are used to measure the Response and Resolution Times. All times are Mountain Time (MT). Severity Levels are defined as follows:
3. CONTAINMENT PLANS.
In the case of Severity 1 and 2 incidents, JourneyApps will determine and execute the necessary activities to minimize the impact of the issue on service availability. Containment activities will be performed to (i) counteract the immediate threat, (ii) prevent propagation or expansion of the incident, (iii) minimize the actual and potential damage, and (iv) preserve information relevant to the incident.
4. MECHANISM FOR REPORTING INCIDENTS AND UNAVAILABILITY; CREDITS.
4.1 Developer Users must report Unavailability (defined below) and support issues and incidents by sending an electronic mail to firstname.lastname@example.org, or through other approved methods communicated by JourneyApps to Customer from time to time.
4.2 Credit to Customer’s account shall be Customer’s sole and exclusive remedy for unavailability in respect of the Platform. Credits shall be calculated as the daily equivalent of the Subscription Fee, applied for each 24-hour period of Unavailability and any portion of such a 24-hour period. Credits shall be suspended if Customer is in Payment Default.
5. SECURITY AND BACKUP.
5.1 JourneyApps will maintain a security report in connection with the Platform Offering, describing security measures in use in the Platform Offering (“Security Report”). Subject to agreed-upon usage terms, JourneyApps will provide Customer with JourneyApps’ then-current Security Report for the Platform Offering. During the term of this Subscription Agreement, JourneyApps will maintain such security measures identified in the then current Security Report or, if JourneyApps determines that more effective measures should be implemented, apply such replacement security measures.
5.2 Customer may perform security testing with respect to the Platform Offering, but only with JourneyApps’ prior written consent, not to be unreasonably withheld.
5.3 Customer Data residing in the Platform Offering (if any) will be logically separated from the data of other JourneyApps customers.
6. CHRONIC OUTAGES.
If JourneyApps determines in its reasonable discretion that Customer is experiencing chronic outages, then JourneyApps may, in its discretion and at its expense, investigate the nature of the recurring problem. Within ten (10) Business Days of the conclusion of JourneyApps’ investigation, JourneyApps and Customer technical representatives will discuss the results of the investigation. If JourneyApps, in its reasonable discretion, determines that Customer’s equipment, network or infrastructure requires upgrades or additions to prevent chronic outages, then Customer shall not be eligible for future credits if Customer does not repair, upgrade or otherwise make required changes.
Credits shall not be provided to Customer in the event that Customer experiences Unavailability resulting from (i) scheduled maintenance, (ii) Customer’s misuse of the Platform or the performance or failure of Customer’s equipment, facilities or applications, (iii) Customer’s (or its Users’) violation of an Order Form or the Acceptable Use Policy or (iv) circumstances beyond JourneyApps’ reasonable control, including, without limitation, acts of any governmental body, war, insurrection, terrorism, sabotage, embargo, fire, flood, earthquake or other acts of God, strike or other labor disturbance, interruption of or delay in transportation, unavailability or interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of an application.
8.1 Availability/Unavailability. JourneyApps’ Platform shall be deemed to be Unavailable if Customer’s reasonably upgraded hardware, software and operating system is functioning properly, but cannot achieve access to the Platform. Unavailability shall not be deemed to occur as a result of JourneyApps maintenance activities; acts of omission by Customer, failure of Customer hardware or software, Vicious Attacks or events beyond JourneyApps’ reasonable control, including Unavailability due to third party service provider and data center issues, network connectivity and/or device hardware failure.
8.2 Vicious Attacks. The term Vicious Attacks includes, but is not limited to hacks, denial of service attacks and malicious introduction of viruses and disabling devices.
9.1 To obtain support from JourneyApps, the Customer’s Developer Users are required to contact JourneyApps in terms of Section 4 above. Customer’s Developer Users are required to carefully document the support issue or incident and answer all the JourneyApps questions so JourneyApps can efficiently serve the Customer’s Developer User(s).
9.2 Support is provided for ongoing use of the Platform. JourneyApps, in its sole discretion, has the right to approve or reject whether an issue is a valid request for support.