Joybyte Terms and Conditions
PLEASE READ THESE TERMS AND CONDITIONS (“TERMS” AND TOGETHER WITH THE APPLICABLE ORDER FORM (AS DEFINED BELOW) AND ALL EXHIBITS AND ADDENDA HERETO OR THERETO, THE “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY JOYBYTE. BY CLICKING THE “SUBMIT” BUTTON ON AN ONLINE ORDER OR PAYMENT FORM THAT REFERENCES THESE TERMS, BY USING THE SERVICES IN ANY MANNER, OR BY SIGNING AN ORDER FORM WHICH REFERENCES THESE TERMS (AS APPLICABLE), CUSTOMER AGREES THAT CUSTOMER HAS READ AND AGREE TO BE BOUND BY AND A PARTY TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS, AND YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. CAPITALIZED TERMS NOT DEFINED HEREIN SHALL HAVE THE MEANING SET FORTH ON THE ORDER FORM WHICH REFERENCES THESE TERMS.
- (a) “Customer Content” means all content, data, text, pictures, sound, graphics, logos, marks, symbols, video, and other materials supplied by Customer to Joybyte in connection with the Services, including but not limited to Customer’s trade names, trademarks and service marks.
- (b) “Documentation” means this Agreement and any documentation or information about the Services provided by Joybyte to Customer, including via email or online.
- (c) “Intellectual Property Rights” means, on a worldwide basis, any and all now known or hereafter known tangible and intangible (i) rights associated with works of authorship including, without limitation, copyrights, moral rights, and mask-works, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms, and other industrial property rights, (v) all other intellectual and industrial property rights of every kind and nature and however designated, whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
- (d) “Order Form” means, as applicable, an applicable order form between Joybyte and Customer which is issued pursuant to this Agreement and signed by both parties, an electronic form entered into by Customer and Joybyte (such as on the Joybyte Site), or an email confirmation agreed to between Joybyte and Customer setting out the Services to be provided.
- (e) “Joybyte Apps” means the platform provided by Joybyte to provide the Services, including Joybyte’s website located at https://labs.joybyte.com/ (the “Joybyte Site”), all software, interfaces, tools, utilities, templates, forms, and other technologies (and any related intellectual property) relating thereto, excluding Customer Content and Third Party Content.
- (f) “Joybyte Content” means all content, data, text, pictures, sound, graphics, logos, marks, symbols, video, and other materials, excluding Customer Content and Third Party Content, used or provided by Joybyte in connection with providing the Services to Customer.
- (g) “Joybyte Technology” means the Joybyte Apps, the Joybyte Content, and the Services, but excludes Customer Content and Third Party Content.
- (h) “Services” means the Social Media Management Services and the Social Advertising Services.
- (i) “Social Media Accounts” means Customer’s accounts with social media networks and providers (e.g., Instagram, Facebook, etc.) identified on the applicable Order Form or in a writing mutually agreed to by the parties (email acceptable) for use in accordance with the Social Media Services.
- (j) “Third Party Content” means any third party content, data, text, pictures, sound, graphics, logos, marks, symbols, video, and other materials, excluding Customer Content or Joybyte Content, posted or reposted by Joybyte on Customer’s behalf in accordance with the Services (e.g. content from other social media users or Creative Commons-licensed content).
- (a) Social Media Management Services. Subject to the terms and conditions of this Agreement, Joybyte shall provide the Social Media Management Services to Customer, whereby Joybyte shall assist Customer with the management of Customer’s Social Media Accounts. The Social Media Management Services will include publishing posts through the Social Media Accounts according to the posting schedule agreed upon by Joybyte and Customer in writing from time to time (email acceptable).
- (b) Social Advertising Services. Subject to the terms and conditions of this Agreement, Joybyte shall provide to Customer the Social Advertising Services whereby Joybyte shall assist Customer with the creation and execution of advertising campaigns (“Campaigns”) to be executed on certain third party social media channels (“Channels”). The Social Advertising Services will be provided as set forth on the applicable Order Form and Documentation, and each Campaign will be executed according to instructions (for example with respect to duration, targeting, and budget) mutually agreed upon by Customer and Joybyte in writing (email acceptable). Customer may request changes, modifications, or cancellations of Campaigns, including changes in the Campaign budget, and Joybyte will use commercially reasonable efforts to implement such changes, modifications, or cancellations within seven (7) business days of receiving written instructions from Customer, but Joybyte cannot and does not guarantee such changes will be implemented, in whole or in part. Customer shall at all times remain responsible for all Customer instructions and for all Campaign fees owed to Joybyte and/or any Channels. If Customer chooses to use the Social Advertising Services, Customer hereby authorizes Joybyte to execute Campaigns on pre-approved Channels on Customer’s behalf and acknowledges and agrees that any such advertisements will be attributed to Customer. All Campaigns will be subject to the terms and conditions of the applicable Channels, and Customer represents and warrants that all instructions to Joybyte regarding Campaigns and the Social Advertising Services will comply with all applicable Channel terms and conditions.
- (c) Designation of Joybyte as Agent. If Customer chooses to use the Social Advertising Services, Customer hereby designates Joybyte as Customer’s agent for the purpose of managing and purchasing Campaigns on Customer’s behalf. Joybyte will create Campaign content (if requested by Customer) in accordance with Customer’s written instructions provided to and accepted by Joybyte in writing (email acceptable in each case), and Customer grants Joybyte all necessary authority to carry out such instructions and effect the same. Customer acknowledges and agrees that all such purchases shall be made using Customer’s payment method on file with the applicable Channel, and all Campaign purchases will be billed directly to Customer by the applicable Channel. Joybyte shall not be responsible for any payment disputes between Customer and any Channel.
- (d) Joybyte Content. Subject to the terms and conditions of this Agreement, Joybyte hereby grants to Customer a non-exclusive, worldwide, royalty free, fully paid up, perpetual, irrevocable, transferable right and license (with the right to sublicense) to use, copy, and distribute Joybyte Content incorporated in any content that is posted or published by Joybyte on Customer’s behalf through Customer’s Social Media Accounts, solely as incorporated therein and not on any standalone basis. Notwithstanding the foregoing, Customer acknowledges and agrees that all Third Party Content, including any Third Party Content incorporated into Joybyte Content, is subject to the original licensing terms for such content and Customer (i) may not use any Third Party Content in any way that exceeds the scope of such license and (ii) is fully responsible for any use outside of the use of Customer’s Social Media Account as provided by Joybyte through the Services.
- Customer Content.
Customer hereby grants Joybyte a worldwide, non-exclusive, sublicensable, royalty-free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Customer Content in connection with providing the Services to Customer and as otherwise set forth herein. Customer represents and warrants that (a) Customer has all rights and authorizations necessary to grant the rights and licenses set forth herein; (b) Customer shall not provide Joybyte with any Customer Content that infringes on the Intellectual Property Rights or any other rights of any third party, including without limitation any rights of publicity or privacy; (c) none of the Customer Content contains any viruses, Trojan horses, time bombs or other harmful or malicious code; (d) none of the Customer Content violates any applicable law, statute, ordinance, regulation, or legal terms of any Social Media Account provider or Channel or is defamatory, libelous, unlawfully threatening, unlawfully harassing, obscene, pornographic, or indecent; and (e) if any Customer Content, or portion thereof, requires any clearance of rights from any third party for use as contemplated herein, Customer has obtained that clearance.
- Pricing and Payment.
- (a) Payment. Customer agrees to pay Joybyte in the amounts set forth on the applicable Order Form (including the payment confirmation form or other written agreement between Customer and Joybyte in writing (email acceptable)). Payment by credit card is accepted, provided that Joybyte may change the accepted payment methods from time to time upon notice to Customer. Joybyte will automatically charge the Social Media Management Services Fee from Customer’s payment method on a monthly basis, prior to the start of the applicable service month. There will be no refunds of any fees paid hereunder. Fees are exclusive of charges for advertisement purchases, and of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes). Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Joybyte’s net income. For payments that are more than ten (10) days late, without limiting Joybyte’s other rights and remedies, Joybyte may suspend Customer’s access to all Services until payment in full has been made.
- (b) Recurring Billing. Customer acknowledges that the Services have a recurring payment feature and accepts responsibility for all recurring charges prior to termination. Joybyte may submit monthly charges without further authorization from Customer, until Customer provides prior notice of termination in accordance with Section 5 of this Agreement. Customer may terminate its authorization or change its payment method by contacting Joybyte by contacting Customer’s brand manager at Joybyte (“Brand Manager”).
- Term and Termination.
This Agreement shall commence on the Effective Date set forth in the first Order Form issued hereunder, or as otherwise agreed to in writing between Customer and Joybyte (email acceptable), and shall continue in effect until all Order Forms under this Agreement have expired or been terminated, or until this Agreement is terminated in accordance with this Section 5. Unless otherwise set forth in an applicable Order Form, (a) this agreement shall be for an initial period of 90 days from the commencement date, whereas either party will have the right to terminate the contract by giving written notice to the other party at least 90 days before the end of the initial period of the contract or at least 30 days at any point after the end of the initial period; (b) this Agreement or any Order Form may be terminated (i) by either party, upon written notice to the other party, in the event the other party breaches this Agreement or the Order Form and fails to cure such breach within fifteen (15) days following written notice thereof or (ii) by Joybyte, upon written notice to Customer, in the event that Customer fails to timely make any payment required by this Agreement or any Order Form when due; and (c) this Agreement will be automatically extended for successive renewal periods of the same duration as the subscription term for the Services originally selected by Customer, at the then-current non-promotional rate, unless and until Customer opts out of auto-renewal, which can be done by contacting Customer’s Brand Manager at least thirty (30) days prior to the end of the then-current term. If Customer terminates this Agreement, Customer may use the Services until the end of the then-current term; Customer’s subscription will not be renewed after the then-current term expires. In the event this Agreement is terminated for any reason other than Joybyte’s material uncured breach of this Agreement, Customer shall pay to Joybyte all fees owed to Joybyte through the completion of the term of the then-current Order Form (e.g. if Customer has signed up for a six (6) month term, Customer shall be responsible for paying all fees through the end of the six (6) month term). Such payment is due and payable within seven (7) days following such termination.
Customer hereby authorizes Joybyte to update, modify and maintain Customer’s Social Media Accounts and Channel advertising accounts during the term of this Agreement. Customer acknowledges and agrees that in the course of performing the Services hereunder, Joybyte will have access to and may use Customer’s Social Media Account and Channel advertising accounts. In connection with such access and use, Customer desires and agrees that Joybyte may publish content and statements through the Social Media Accounts and Channel advertising accounts on Customer’s behalf, and acknowledges and agrees that any such statements will be attributed to Customer. Joybyte shall not be liable for any losses Customer may claim in connection with Customer’s Social Media Accounts or Channel advertising accounts, except as may be directly caused by Joybyte’s gross negligence or willful misconduct.
- Promotional Use.
Customer acknowledges and agrees that a significant consideration for Joybyte to enter into this Agreement depends upon Joybyte’s ability to promote its services and to effectively demonstrate to potential customers the social media services Joybyte performs on behalf of Customer. Therefore, unless otherwise agreed upon between Customer and Joybyte in writing (email acceptable), Customer agrees that Joybyte may use and disclose the Customer Content for its promotional purposes, and may disclose to potential customers the type of services provided to Customer by Joybyte, the manner in which such services are performed, and the volume of business conducted between Joybyte and Customer.
- Joybyte Apps
- (a) Access. In order to use the Services, Customer must access and use the Joybyte Apps. For example, Customer shall use the Joybyte Apps to provide Customer Content to Joybyte. In furtherance of the foregoing, and subject to the terms and conditions of this Agreement, Joybyte grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license to access and use the Joybyte Apps solely for the purpose of using the Services in accordance with this Agreement and any applicable Documentation.
- (b) Credentials. Joybyte will provide Customer with access privileges that permit Customer to access the Joybyte Apps in order to upload Customer Content and otherwise use the Services in accordance with this Agreement and all applicable Documentation. As part of the implementation process, Customer will be given an administrative user name and password that will be used to set up Customer’s account. Customer shall have sole responsibility for maintaining the confidentiality of such log-in credentials, and Customer shall be responsible for the acts or omissions of any person who accesses the Joybyte Apps using passwords or access procedures provided to or created by Customer.
Joybyte will not be responsible or liable for any failure in the Services resulting from or attributable to (a) Customer Content or Third Party Content or (b) unauthorized access, breach of firewalls or other hacking or malicious attacks by third parties.
Customer shall not directly or indirectly (a) use any of Joybyte’s Confidential Information (defined below) to create any service, software, documentation or data that is similar to any aspect of the Services; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Joybyte Technology, or the underlying ideas, algorithms or trade secrets therein; (c) encumber, sublicense, transfer, rent, lease, time-share or use any portion of the Joybyte Technology in any service bureau arrangement or otherwise for the benefit of any third party; (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Joybyte Technology; or (e) for the term of this Agreement and for a period of one (1) year thereafter, solicit for employment or hire any employee or consultant of Joybyte.
- Intellectual Property.
- (a) Customer. Except for the limited rights and licenses expressly granted to Joybyte hereunder, no other license is granted, no other use is permitted and Customer (and its licensors) shall retain all rights, title and interests (including all Intellectual Property Rights and proprietary rights) in and to the Customer Content and any copies, modifications and derivative works thereof, including without limitation Customer Content that has been enhanced by Joybyte through the Services. Customer agrees that Joybyte is free to use and disclose aggregate or anonymized data derived from Customer’s use of the Services, aggregate measures of usage and performance of the Joybyte Apps and any Campaigns, and all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services (“General Knowledge”), including that it could have acquired performing the same or similar services for another customer.
- (b) Joybyte. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Joybyte (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Joybyte Technology and all copies, modifications and derivative works thereof, and all Intellectual Property Rights therein.
Customer shall defend, indemnify and hold harmless Joybyte and its officers, directors, employees, agents and contractors, at Customer’s expense, from any claim, suit, proceeding or loss, damages or liability of any kind (including but not limited to reasonable attorneys’ fees) resulting from, arising out of, or related to: (a) Customer Content or Third Party Content; (b) Customer’s or Joybyte’s use of the Social Media Accounts, including but not limited to any content contained or displayed thereon and any statements made or information provided by Joybyte through Customer’s Social Media Accounts; (c) any products or services offered by Customer; (d) any Campaigns and content related to Campaigns provided by Customer or created, modified or provided in connection with Customer’s instructions; (e) any violation of the terms and conditions of any Channel; or (f) any breach or alleged breach by Customer of the representations, warranties, promises or other obligations owed to Joybyte hereunder.
- Confidential Information.
For the purposes of this Agreement, “Confidential Information” means any and all (a) technical and non-technical information including patent, trade secret and proprietary information, techniques, models, methods of doing business, inventions, know-how, processes, apparatus, equipment, algorithms or Intellectual Property Rights related to the services provided by Joybyte hereunder or either party’s business, and shall include (with respect to Joybyte), the means by which Joybyte performs its services hereunder; (b) information relating to costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how; and (c) information designated by either party as confidential or which reasonably would be understood to be confidential given the nature of the information or the circumstances surrounding its disclosure. Notwithstanding the foregoing, “Confidential Information” shall not include information that: (i) is or becomes generally known through no fault of the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure and is not subject to restriction; (iii) is independently developed or learned by either party without use of or reference to the Confidential Information of the disclosing party; (iv) is rightfully obtained from a third party who has the right to make such disclosure; or (v) is released for publication in writing. Except as expressly set forth in this Agreement, each party agrees that it will not and will ensure that its employees, agents and contractors will not make use of, disseminate, or in any way disclose any Confidential Information of the other party to any person, firm or business, except for any purpose the disclosing party may hereafter authorize in writing. Each party agrees that it will treat all Confidential Information with the same degree of care as it accords to its own Confidential Information, and each party represents that it exercises reasonable care to protect its own Confidential Information. Notwithstanding anything to the contrary, nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law; provided that prior to any such disclosure, the receiving party shall use reasonable efforts to promptly notify the disclosing party in writing of such requirement to disclose and cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
OTHER THAN AS SPECIFICALLY PROVIDED HEREIN, THE JOYBYTE TECHNOLOGY AND THIRD PARTY CONTENT PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PROVISION AND/OR USE OF THE SERVICES ARE AT CUSTOMER’S SOLE RISK. JOYBYTE DOES NOT WARRANT THAT THE SERVICES OR JOYBYTE APPS WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES JOYBYTE MAKE ANY WARRANTY AS TO THE PERFORMANCE OR ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES.
- Limitations of Liability.
IN NO EVENT SHALL JOYBYTE BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE, EVEN IF JOYBYTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL JOYBYTE’S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID BY CUSTOMER TO JOYBYTE HEREUNDER DURING THE SIX (6) MONTH PERIOD PRECEDING THE CLAIM. JOYBYTE SHALL NOT BE LIABLE IN ANY WAY FOR ANY CUSTOMER CONTENT OR THIRD PARTY CONTENT.
The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is created, or intended to be created, by this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the state of Arizona without regard to the conflict of laws provisions thereof. Any action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in Maricopa County, Arizona; each party hereby irrevocably consents to the jurisdiction of such courts and waives any objections it may have to personal jurisdiction, venue or forum. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. No waiver of any right under this Agreement shall be deemed effective unless contained in writing signed by a duly authorized representative of the party against which the waiver is sought to be enforced, and no waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this Agreement. If any provision in this Agreement is invalid or unenforceable, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement shall remain in full force and effect. If either party is unable to perform any of its obligations under this Agreement, other than payment obligations, due to any cause beyond the reasonable control of such party, the affected party’s performance shall be extended for the period of its inability to perform due to such occurrence. Any notice required or permitted to be sent under this Agreement shall be delivered by email to Customer’s Brand Manager, on the part of Customer, or to Customer’s email address on file with Joybyte, on the part of Joybyte. Joybyte may outsource any of its duties or obligations under this Agreement or any Order Form to subcontractors. This Agreement sets forth the entire understanding and agreement between Customer and Joybyte and supersedes all prior or contemporaneous proposals or communications, oral or written, between the parties relating to the subject matter of the Agreement. No modification of the Agreement shall be binding unless it is in writing and is signed by authorized representatives of both parties. The following provisions of this Agreement shall survive any termination or expiration of this Agreement: Section 4 (“Pricing and Payment”), Section 7 (“Authorization to Use Customer Content and Joybyte Content to Promote Joybyte”), Section 11 (“Intellectual Property”), Section 12 (“Indemnification”), Section 13 (“Confidential Information”), Section 14 (“Disclaimer”), Section 15 (“Limitations of Liability”), and Section 16 (“General”).