Welcome to JoyUp, an online marketing and order taking platform for restaurants, cafes, and other food and drink providers (the “Service”). JoyUp integrates with your social media presence, allowing your customers to access your menu and place and track their orders, all through social media messaging apps.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. Your use of the Service signifies your agreement to the following terms and conditions and any policies referenced herein (collectively, the “Agreement”). The Agreement is a binding legal contract entered into by you and Oni Space, Inc., the provider of the Service (“JoyUp”).
JoyUp provides the functionality listed on its then current published feature list. Such functionality includes, but is not limited to:
1.1 Social Media Integration. Send out ad campaigns via social media; and receive orders via social media messaging apps.
1.2 Point of Sale Vendor Integration. Integrate your point of sale provider with the Service and take mobile payments.
1.3 Delivery Tracking. Provide your customers with a means to track their order, including delivery information if relevant and available.
The term “Service” includes all such functionality, and also includes but is not limited to any downloadable applications used in connection therewith.
2.1 Subscription Fees. You shall pay published subscription fees based upon your pricing plan election, and the number of supported Providers.“ Provider” means each physical location for your restaurants, cafes, and/or other food or drink providerPricing, features offered in each pricing plan, and all other package details may change at JoyUp’s discretion at any time. Upon any such material change, JoyUp shall provide you with conspicuous notice thereof.
2.2 Per Order Fees. JoyUp shall charge your customer its then-current per order service fee at the time it accepts an order from said customer.
2.3 Payment Terms.. Monthly subscription fees shall be withdrawn automatically from the payment method you maintain on file with JoyUp at the beginning of each month of Service. Subscription fees for longer terms shall be invoiced at the beginning of each subscription and renewal term, with payment due within ten (10) days thereof. All fees paid are strictly non-refundable.
2.4 Subscription Renewal. At the end of each subscription period, the subscription shall automatically renew for an additional period of equal duration, unless you opt-out by contacting firstname.lastname@example.org
3.1 Term. This Agreement will commence on the date you first download the Application or first access the Service, whichever is earlier, and continue until the later of:
3.1.1 The end of your subscription period; and
3.1.2 Your ceasing use of the Service and deletion the Application.
3.2 Termination. Notwithstanding the foregoing, JoyUp may terminate this Agreement with you (by providing an email notice of such termination):
3.2.2 if you have breached any provision of this Agreement (or have acted in a manner which clearly shows that you do not intend to, or are unable to comply with the provisions of this Agreement);
3.2.3 if we believe we are required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful);
3.2.4 if we no longer offer any of the Service you utilize;
3.2.5 (iv) if you no longer agree to the terms and conditions of this Agreement; or
3.2.6 (v) for any other reason or no reason, in our sole and absolute discretion. The termination of this Agreement will not affect any of our rights or your obligations arising under this Agreement prior to termination.
3,3 Survival. The following sections shall survive the termination of this Agreement for any reason: 2.2, 3.3, and 4 – 10. Further any provision that must survive to fulfill its essential purpose shall do so.
4.1 Ownership. JoyUp owns all worldwide right, title and interest in and to the Service, all of its underlying technologies, all derivatives thereof, and all worldwide intellectual property rights therein. Except as expressly described herein, this Agreement does not grant you any intellectual property license or rights in or to the Service, any of their components, or any trademarks, service marks, or other intellectual property of JoyUp.
4.2 3rd Party Service and Marks. All rights with respect to the marks, trade names, and/or service names of any third-party reproduced in providing the Service shall remain with said third-party. Said marks are used solely in a descriptive manner to actually reference said third-party’s services.
4.3 Internal Business Use Only. JoyUp grants you a non-exclusive, limited, non-transferable, non-sublicensable, revocable licenses during the term of your active subscription to use the Service solely for your internal business use. You shall not redistribute, or otherwise make the Service available to any third-party.
5.1 Age Requirement. The Service are available only to individuals who can form legally binding contracts under applicable law. The Service are only available to those that have reached the age of majority. If you are under such age, you can use this service only in conjunction with, and under the supervision of your parents or guardians.
5.2 Account Credentials. You shall use no less than reasonable efforts to maintain the security of your Service credentials. You agree not to transfer your account to any third-party. You shall be solely responsible for use of your credentials and/or your account by any third-party. You must notify JoyUp upon becoming aware of any breach or suspected breach of the security of your account.
5.3 Accurate Information. You agree to keep your personal information accurate and complete. Misrepresentation of your identity or the ownership of the account information used with the Service shall be a material breach of the terms herein and may be a violation of applicable law.ailable to any third-party.
5.4 Appropriate Conduct. You hereby warrant and agree that you shall not:
5.4.1 Use the Service for any illegal or unauthorized purpose;
5.4.2 Use the Service in any way that violates any applicable law, regulation, legislation, or other applicable rules of any governing body;
5.4.3 Modify, adapt, hack, or reverse engineer the Service;
5.4.4 Engage in any activities that would create a false association with the Service;
5.4.5 Use any robot, spider, webcrawler, scraper, deep link or similar automated extraction or data gathering mechanism, program or tool to access, copy or monitor the Service or any portion thereof without JoyUp’s prior written consent; or
5.4.6 Create or use customer lists for advertising with the Service through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper; or
5.4.7 Transfer or resell the Service.
5.5 Third-Party Content. You acknowledge and agree that content and links that you come across via the Service may be provided by third-parties and may include and point to content outside of JoyUp’s control (“Third-Party Content”). JoyUp shall have no liability whatsoever for any such Third-Party Content, or any third-party fees you may incur by accessing such Third-Party Content, and you hereby release JoyUp from any claims related to or arising therefrom.
5.6 Other Use Restrictions. You agree that you will use the Service for your own internal business use only. You will not:
5.6.1 Allow third-parties to exploit the Service;
5.6.2 Provide Service passwords or other login information to any third-party;
5.6.3 Share Service features or content with any third-party; or
5.6.4 Access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service.
5.7 Consent to Messages. You hereby consent to continue to receive from JoyUp, Service related messages, marketing, and/or advertising for additional services, events, affiliate products, and services through the mediums of electronic mail, printed mails, phone calls, text messages (carrier fees may apply), and/or social media messages. You may opt-out of future marketing and advertising from JoyUp at any time through either express written notice, or by clicking on the applicable unsubscribe links contained in any such material.
5.8 Third-Party Service. By selecting certain third-party vendors (for example point of sale vendors) to integrate with the Service, you expressly acknowledge and agree that such services are outside of JoyUp’s control (“Third-Party Service”). Your use of said services shall be subject any Third-Party Service’ terms and conditions. JoyUp shall have no liability whatsoever arising from or relating to any such Third-Party Service, or any third-party fees you may incur by accessing such Third-Party Service. By using the Service, you hereby release JoyUp from any claims related to or arising therefrom. JoyUp shall have no liability for any failure of the Service to function due to a failure of any Third-Party Service.
5.9 Location Based Information. JoyUp may access and/or otherwise make use of the location information of your customers and your delivery personnel for the purposes of making the Service functional. You consent to such use, and hereby warrant that you have received all necessary consent from all individuals making their location data available to the Service.
5.10 End User Consent. You shall receive from each of your customers all necessary consents necessary for JoyUp to contact them with Service related messages, marketing, and/or advertising for additional services, events, affiliate products, and services through the mediums of electronic mail, printed mails, phone calls, text messages (carrier fees may apply), and/or social media messages.
6.2 Aggregate & Anonymized Data. Notwithstanding the provisions above, JoyUp may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. “Aggregate Data” refers to information that is aggregated, processed, or otherwise anonymized in such a way that that is no longer personally identifiable.
6.3 Consent to use Customer’s Information. You hereby warrant that you have received all necessary permission, consent, and/or license necessary for JoyUp’s use of the personal information of your customers (the “Customer Information”) in connection with the provision of the Service, including but not limited to all necessary consents or opt-ins required to allow JoyUp to message such customers directly, whether via third-party social media messenger services, SMS, or otherwise.
7.1 Warranty Disclaimer. The Service is provided to you without warranty of any kind, whether express or implied. JOYUP SPECIFICALLY EXCLUDES AND DISCLAIMS WARRANTIES OF NONINFRINGEMENT, TITLE, THE WARRANTY OF MERCHANTABILITY, AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
7.2 Damages Limitation.. IN NO EVENT SHALL JOYUP BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR ANY OTHER THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUES, LOST SAVINGS, COSTS OF CAPITAL, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DOWNTIME COSTS, LOSS OR IMPAIRMENT OF DATA AND OTHER BUSINESS LOSS. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER JOYUP KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
7.3 Limitation of Liability.. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF JOYUP TO YOU ON WHATEVER BASIS, EXCEED ALL FEES PAID BY YOU TO JOYUP IN THE SIX MONTHS PRECEDING THE ACTION GIVING RISE TO THE CLAIM.
7.4 Risk Allocation. The provisions herein allocate risks of loss or failure between you and JoyUp. The provisions contained in this Agreement reflect this allocation of risk and the disclaimer and limitations of liability contained herein.
8.1 Changes to the Service. JoyUp may, at its sole discretion, change or remove some or all of Service at any time. JoyUp reserves the right to interrupt the Service with or without prior notice for any reason or no reason. You agree that JoyUp will not be liable to you for any loss of availability of the Service, interruption of the Service, delay, or failure to perform.
8.2 Change to the Agreement. JoyUp reserves the right to amend this Agreement at any time. If amendments constitute a material change to the Agreement, to be determined at the sole discretion of JoyUp, JoyUp will notify you via e-mail or via a conspicuous notice on the Service.
8.3 Refusal of Service. JoyUp reserves the right to refuse service to anyone for any reason at any time. JoyUp may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without notice and liability for any reason, including if in JoyUp’s sole determination you violate any provision of this Agreement, or for no reason.
8.4 Trademarks. All JoyUp graphics, logos, designs, page headers, button icons, scripts, and service names are registered or unregistered trademarks or service marks of JoyUp. JoyUp reserves all rights in said trademarks and service marks and no rights therein are granted or transferred hereunder. You shall not use any of JoyUp’s trademarks or service marks, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion.
9.1 Indemnity. YOU AGREE TO INDEMNIFY AND HOLD ONI SPACE INC. DBA. JOYUP AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS' FEES, ARISING OUT OF OR RELATED TO YOUR ACCESS OF AND/OR USE OF THE APPLICATION AND/OR SERVICES, YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD-PARTY, OR YOUR BREACH OF ANY TERM OR WARRANTY WITHIN THIS AGREEMENT.
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities, by contract, or otherwise.
10.1 Relationship Between Parties. Neither party shall be deemed to be an employee, agent or partner of the other in connection with this Agreement. Neither party shall have any right or authority to assume or create any obligation or responsibility, either express or implied, on behalf of the other party. The Parties shall be and remain independent contractors with respect to this Agreement.
10.2 Governing Law. This Agreement shall in all respects be interpreted, construed in accordance with and governed by the laws of the State of California. The Parties specifically exclude the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods, if otherwise applicable
10.3 Venue and Jurisdiction Provisions. Subject to the dispute resolution clause in Section 10.17 below, in the event of any litigation between the Parties, the Parties agree that the sole and exclusive venue and jurisdiction for any such action shall be in the courts of competent jurisdiction located in San Francisco County, California. The Parties agree that the above referenced courts shall have personal and exclusive jurisdiction over the Parties for any dispute arising out of this Agreement.
10.4 Severability. In the event that any one or more of the provisions of this Agreement is for any reason held to be illegal or unenforceable in any respect, such illegality or unenforceability shall not affect the other provisions of this Agreement, which shall remain in full force and effect.
10.5 Force Majeure. Neither party will be liable for any failure to perform due to unforeseen circumstances or causes beyond such party’s reasonable control, including, without limitation, acts of God, war, riot, acts of civil or military authorities, delay in delivery by vendors, fire, flood, accident, strikes, inability to secure communication or transportation facilities or labor or materials. In the event of a force majeure event, such party’s time for delivery or other performance will be extended for a period equal to the duration of the delay caused thereby.
10.6 Entire Agreement. This Agreement is the entire agreement between the Parties and supersedes all proposals, all prior agreements, commitments, oral or written, and all negotiations, conversations or discussions between the Parties relating to this Agreement.
10.7 Modifications. Except as otherwise allowed per the terms of this Agreement, this Agreement may be modified only by a writing signed by each party.
10.8 Headings. Headings included in this Agreement are for convenience only and are not to be used to interpret the provisions of the Agreement between the Parties.
10.9 Assignment. You may not assign or delegate the rights and obligations of this Agreement without the prior express written permission of JoyUp. JoyUp may unilaterally assign or delegate the rights and obligations of this Agreement at its sole discretion. The terms of this Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
10.10 Waiver. The failure of either party to enforce at any time any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce any such provisions.
10.11 Benefit. This Agreement is made for the benefit of each of the Parties and not for the benefit of any other persons.
10.12 Attorneys’ Fees. In any litigation or arbitration between the Parties, the prevailing party shall be entitled to reasonable attorney fees and all costs incurred in connection with such proceedings.
10.13 No Presumption. There shall be no presumption applied against any party on the ground that such party was responsible for preparing this Agreement or any part of it
10.14 Conflict with Terms of Service or Other Policies. Should any conflict arise between this Agreement or any other policy documents, this Agreement shall prevail.
10.15 Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
10.16 DMCA Notices. The Digital Millennium Copyright Act of 1998 (the “DMCA“) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by JoyUp infringe upon your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information as required by 17 USC § 512(3):
10.16.1 A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the site are covered by a single notification, a representative list of such works);
10.16.2 Identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Indeed to locate the material on the site;
10.16.3 The name, address, telephone number, and email address (if available) of the complaining party;
10.16.4 A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
10.16.4 A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send JoyUp a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. Notices and counter-notices should be sent in writing to email@example.com, Subject: Copyright Notice. Please be aware that there are penalties for false claims under the DMCA.
10.16.5 Dispute Resolution. You agree to notify JoyUp of any potential disputes. If we are not able to resolve your claims within 60 days, you may seek relief through arbitration as set forth below.
Any and all claims, except for those for which California courts shall have jurisdiction per the terms above, will be resolved by binding arbitration, rather than in court. This includes any claims you assert against us, our subsidiaries, users, or any companies offering products or services through us (which are beneficiaries of this arbitration agreement). Arbitrations will be conducted by the American Arbitration Association (AAA) under its rules.
Any and all proceedings to resolve claims will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. An arbitration decision may be confirmed by any court with competent jurisdiction.