AUGUST 8, 2023
This End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity, collectively referred to as “You” or “Your”), the End-User, and Joyfill, LLC (“Licensor”), a limited liability company of the United States of America, for the Joyfill software products, which includes software, source code, and computing services (collectively, “Software Product”). By installing, copying, or otherwise using the Software Product, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, you may not install, copy, download or use the Software Product. You agree that your use or installation of the Software Product acknowledges that you have read this agreement, understand it, and agree to be bound by its terms and conditions. The terms “we”, “us”, and “Licensor” refer to Joyfill, LLC, and its affiliates.
1. OWNERSHIP
It is hereby understood and agreed that Licensor is the owner of all right title and interest to the Software Product, regardless of the media or form of the Software Product, whether installed, used as a service via the Internet, existing on a disk, on a device, or otherwise. You, as licensee (“Licensee”) through your downloading, installing, copying or use of this product do not acquire any ownership rights to the Software Product.
2. GENERAL
The Software Product is licensed, not sold, to you by Licensor for use only under the terms of this EULA. The Software Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The rights granted herein are limited to Licensor’s intellectual property rights in the Software Product and do not include any other patents or intellectual property rights. The terms of this EULA will govern any software upgrades provided by Licensor that replace and/or supplement the original Software Product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
3. SOFTWARE PRODUCT
The Software Product, as used in this EULA, means, collectively and/or as applicable:
(a) The Joyfill Platform software, the Joyfill API, the Joyfill SDK, the Joyfill mobile application and/or any source code provided by Joyfill, all of which are configured for creating, customizing, storing, deploying or managing forms for collecting data;
(b) Any and all contents, components, attachments, software, media, and code with which this Software Product is provided or delivered, whether or not provided or delivered via the Internet as a service;
(c) Any and all images, photographs, art, artwork, clip art, icons, fonts or other artistic works (the “Art Work”);
(d) Related explanatory written materials and instructions, and any other possible documentation related thereto (“Documentation”); and
(e) Upgrades, modified versions, updates, additions and copies of the Software Product (the “Upgrades”), if any, licensed to by Licensor under this EULA.
4. GRANT OF LICENSE AND RESTRICTIONS
4.1 Subject to payment of the applicable fees and compliance with this EULA, Licensor grants You a nonexclusive, nontransferable End-User license right to use the Software Product as provided, or via the Internet as a service or to install the Software Product on a disk or other permanent storage media on one or more computing devices and use said installed Software Product. Said End-User license right to use the Software Product is subject to the terms of the Terms of the Use of the purchase agreement under which the Software Product was provided to the Licensee.
4.2 If the Software Product is licensed for a specified term, as per the Terms of Use, Your license is valid solely for the applicable term. Your right to Use the Software begins on the date the Software Product is initially used, whether or not it is used via the Internet as a service, or initially installed and continues until the end of the specified term, unless otherwise terminated in accordance with this Agreement.
4.3 Licensor authorizes the End-User to make one (1) copy of the Software Product as an archival backup copy, provided End-User’s backup copy is not installed or used on any computer. Any other copies you make or authorize are in violation of this EULA.
4.4 Unless provided otherwise in the Documentation or by prior express written consent of Licensor, you shall not display, modify, reproduce and distribute any Art Work, or portion(s) thereof, included with or relating to the Software Product, if any. Any such authorized display, modification, reproduction and distribution shall be in full accord with this EULA. Under no circumstances will your use, display, modification, reproduction and distribution of the Art Work give you any Intellectual Property or Proprietary Rights of the Art Work. All rights, title, and interest belong solely to Licensor.
4.5 You shall not use the Software Product for any purposes beyond the scope of the license granted in this Agreement. Licensor has the unfettered right to remove any user’s access to the Software Product if said user has been found to violate this section, in Licensor’s sole discretion. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, You shall not at any time, directly or indirectly:
(a) Copy, modify, or create derivative works of the Software Product, in whole or in part;
(b) Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software Product;
(c) Reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software Product, in whole or in part;
(d) Remove any proprietary notices from the Software Product;
(e) Use the Software Product in any manner or for any purpose that infringes,
misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(f) Use the Software Product to post or send any unlawful, infringing, threatening, defamatory, libelous, or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense or give rise to civil liability or otherwise violate any law.
(g) Take any action that imposes or may impose an unreasonable or disproportionately large load on Licensor’s network infrastructure, as determined by Licensor in its sole discretion.
(h) Interfere or attempt to interfere with the proper working of the Software Product or any of its services.
(i) Bypass any measures Licensor may use to prevent or restrict access to the Software Product or any of its services.
(j) Link from any other website or mobile application to this Software Product in any manner such that this Software Product, or any of its content, is “framed” or surrounded by any other content, materials, or branding.
4.6 Your nonexclusive, nontransferable End-User license right to use and/or install the Software Product is contingent on complying with this Agreement and the Terms of Use. This Agreement may further be terminated by Licensor in its sole discretion without providing notice to the Licensee.
5. EVALUATION LICENSE
5.1 If You receive an evaluation version of the Software Product (“Evaluation Software”) for evaluation purposes or other limited, temporary use as authorized by Licensor, Your Use of the Evaluation Software is only permitted for the period limited by the license key or otherwise stated by Licensor in writing. The evaluation period is identified by the license key or in writing, and will define a certain number of days from the date the Evaluation Software is made available to You. The Evaluation Software may cease to operate following the defined term.
5.2 The Evaluation Software is licensed “AS-IS” without support or warranty of any kind, expressed or implied. Licensor does not assume any liability arising from any use of the Evaluation Software. You may not publish any results of benchmark tests run on the Evaluation Software without first obtaining written approval from Licensor. You authorize Licensor to use any feedback or ideas You provide Licensor in connection with Your Use of the Evaluation Software.
6. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
6.1 During the Term, Licensor may provide upgrades, modified versions, or updates to the Software Product. You agree that you must possess a valid license to the Software Product in order to use any such upgrades, modified versions, or updates. After you install an upgrade, modified version, or update, you may continue to use any such previous version of the Software Product in accordance with this EULA. Upgrades, modified versions, or updates may be licensed to you by Licensor with additional or different terms.
6.2 From time to time, at Licensor’s sole discretion, Licensor may provide You with support services related to the Software Product (“Support Services”). Licensor has the right to suspend said service at any time. Licensor reserves the right to alter, suspend, and terminate the Support Services at any time and for any reason.
6.3 Any supplemental software, code, content, or media provided to you in the course of Support Services shall be considered part of the Software Product and subject to the terms and conditions of this EULA.
6.4 Licensor retains all right, title, and interest in and to the Software Product, and any rights not granted to you herein are reserved by Licensor. You hereby expressly agree not to extract information, reverse engineer, disassemble, decompile, or translate the Software Product, or otherwise attempt to derive the source code of the Software, except to the extent allowed under any applicable law. You hereby expressly agree not to circumvent any technological measures that effectively controls access to the Software Product, wherein circumventing includes any means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure. In the event that such activities are permitted by applicable law, any information you, or your authorized agent, discover shall be promptly disclosed to Licensor and shall be deemed the confidential information of Licensor.
6.5 You shall not modify, sublicense, assign, or transfer the Software Product or any rights under this EULA, except as expressly provided in this EULA. Any attempt to other sublicense, assign, or transfer any of the rights, duties, or obligations will be void.
6.6 You may permanently transfer all of your rights under this EULA, provided you retain no copies, you transfer all of the Software Product (including all component parts, the media and documentation materials, any upgrades, this EULA, and all modifications and portions of the program contained or merged into other provisions). The other party must agree to accept the terms and conditions of the EULA.
7. TERM
7.1 This License is effective until terminated. The length of the term of this Agreement shall be defined in the Terms of Use of the purchase agreement under which the Software Product was provided to the Licensee. Licensee may terminate the Agreement at any time by ceasing use of the Software Product online as a service, or by destroying any installed Software Product with all copies, full or partial, and removing all of its component portions.
7.2 Your rights under this EULA will terminate automatically without notice from Licensor if you fail to comply with any term(s) or condition(s) of this EULA. In such event, no notice shall be required by Licensor to affect such termination.
7.3 Upon termination of this EULA, you shall cease all use of the Software Product and destroy all copies, full or partial, together with all backup copies, modifications, documentation materials, and merged portions in any form and remove all component parts of said installed Software Product.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Licensor shall retain all right, title, and interest in the Software Product and to any modifications or improvements made thereto, and any upgrades, updates or Documentation provided to End-User. End-User will not obtain any rights in the Software Product, its updates, upgrades, and Documentation, as a result of its responsibilities hereunder.
8.2 End-User acknowledges Licensor’s exclusive rights in the Software Product and that the Software Product is unique and original to Licensor and that Licensor is owner thereof. Unless otherwise permitted by law, End-User shall not, at any time during or after the effective Term of the Agreement, dispute or contest, directly or indirectly, Licensor’s exclusive right and title to the Software Product or the validity thereof.
8.3 End-User shall not attempt to develop any Software Product that contains the “look and feel” of any of the Software Product.
8.4 Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to the Software Product.
8.5 All data placed in the Software Product by the Licensor, such as data, numbers, text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Licensor or the property of its partners, agents, affiliates, or suppliers and is protected by United States and international copyright laws. The compilation of all content on the Software Product is the exclusive property of Licensor and protected by U.S. and international copyright laws. All software used on the Software Product is the property of Licensor or the property of its partners, agents, affiliates, or suppliers and protected by United States and international copyright laws. Any data placed in the Software Product by the Licensee is the property of Licensee.
8.6 JOYFILL and other marks on the Software Product are trademarks of Licensor. All of the graphics, logos, page headers, button icons, scripts, and service names in the Software Product are trademarks or trade dress of Licensor. Said trademarks and trade dress may not be used in connection with any product or service that does not belong to Licensor or is not directly related to Licensor, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits us. All other trademarks not owned by Licensor that appear on the Software Product are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Licensor.
9. U.S. GOVERNMENT END-USERS
The Software Product and related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. §§ 227.7202-1 to 227.7202-4, as applicable. The Commercial Computer Software and Commercial Computer Software Documentation may be licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
10. LINKS TO THIRD PARTY SITES
You may link to third party sites through the use of the Software Product. The third-party sites are not under the control of Licensor, and Licensor is not responsible for the contents of any third-party sites, any links contained in third party sites, or any changes or updates to third party sites. Licensor is not responsible for webcasting or any other form of transmission received from any third-party sites. Licensor is providing these links to third party sites to you only as a web browser, and the inclusion of any link does not imply an endorsement by Licensor of the third-party site.
11. CONSENT TO USE OF DATA
You agree that Licensor and their affiliates may collect and use technical information gathered in any manner as part of product support services related to the Software Product, such as technical support, as defined more fully in the Privacy Policy. Licensor and its affiliates may use this information to comply with applicable governmental regulations and to improve their products or to provide customized services or technologies to you. Licensor and its affiliates may disclose this information to others, but not in a form that personally identifies you, as described more fully in the Privacy Policy. This section does not apply to any data that is input into the Software Product by the Licensee, which is fully owned by Licensee.
12. EXPORT LAW ASSURANCES
You may not use or otherwise export or reexport the Software Product except as authorized by United States law and the laws of the jurisdiction in which the Software Product was obtained. In particular, but without limitation, the Software Product may not be exported or reexported (a) into (or to a nation or resident of) any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By installing or using any component of the Software Product, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
13. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE SOFTWARE PRODUCT IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE PRODUCT IS PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE PRODUCT, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE PRODUCT, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE PRODUCT WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR A LICENSOR AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PRODUCT PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
14. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR, ITS AFFILIATES OR LICENSEES, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, LICENSOR’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT. THIS ABOVE LIMITATION OF LIABILITY MAY NOT APPLY TO YOU BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY.
15. GOVERNING LAW; SUBMISSION TO JURISDICTION
This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. This EULA will be governed by and construed in accordance with the internal laws of the State of Florida of the United States of America without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the state of Florida of the United States of America. Any legal suit, action, or proceeding arising out of or related to this Agreement or the license
granted hereunder will be instituted in the federal courts of the United States or the courts of the State of Florida of the United States of America, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.
16. SEVERABILITY
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
17. ENTIRE AGREEMENT
This Agreement constitutes the sole and entire agreement with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
18. AMENDMENTS/NOTICE OF CHANGES
Licensor reserves the right to change the terms and conditions contained in this Agreement, other service-specific terms and conditions, or any policies or guidelines governing the software or services it provides, including without limitation, any of the information posted on the Software Product, at any time and in our sole discretion. Any changes to the Software Product, including service-specific terms and conditions, or policies and guidelines referenced in this Agreement, will be effective upon posting of such revisions on the Software Product and without notice to you. We will, however, post a notice of any changes to this Agreement on the Software Product after the changes are effective. You are responsible for regularly reviewing the Software Product for changes and notice of any changes. Changes to referenced policies and guidelines or any other information in the Software Product may be posted without any other notice to you. YOUR CONTINUED USE OF THE SOFTWARE PRODUCT AND ITS SERVICES FOLLOWING OUR POSTING OF ANY CHANGES TO THE AGREEMENT ON THE SOFTWARE PRODUCT WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT OR THE SOFTWARE PRODUCT, DO NOT CONTINUE TO USE THE SOFTWARE PRODUCT OR ITS SERVICES.
19. CLASS ACTION WAIVER
READ THE FOLLOWING CLASS ACTION WAIVER AGREEMENT CAREFULLY. IT LIMITS CERTAIN LEGAL RIGHTS, INCLUDING YOUR RIGHT TO OBTAIN RELIEF OR DAMAGES AS A MEMBER OF A CLASS. EXCEPT WHERE PROHIBITED BY LAW, YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER, ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION LAWSUIT. You expressly waive any right you may have to bring or participate in a claim as a class, collective or representative proceeding in court or before an arbitrator against Licensor and/or its affiliated entities. Further, unless both we agree in writing, the arbitrator may not consolidate your claim with another person’s claim and may not otherwise preside over any form of a representative or class proceeding.
20. ARBITRATION, GOVERNING LAW AND FORUM
Any controversy, claim or dispute arising out of this Agreement or the use, viewing or access to the Software Product shall be settled by arbitration, administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Venue for any arbitration proceeding shall be the State of Florida of the United States of America, unless otherwise agreed by the parties or ordered by the arbitrator. The arbitrator shall award attorney’s fees and costs to the prevailing party in any arbitration proceeding. This Agreement is governed by and shall be construed in accordance with the laws of the United States of America, without regard to its principles of conflicts of law. To the extent the arbitration provision above is held invalid or unenforceable, the courts located in the state of Florida of the United States of America shall have exclusive jurisdiction over any controversy, claim or dispute arising out of this Agreement or the use, viewing or access to the Software Product, and you agree to waive any jurisdictional, venue, or inconvenient forum objections to said courts.
21. DISPUTE RESOLUTION
If you believe that the Software Product or Licensor has not adhered to this End User License Agreement, you may contact us by writing to us at the following address:
Joyfill, LLC
424 E. Central Blvd. #716
Orlando, FL 32801