1. IntroductionMarketJoy, Inc. (“MarketJoy”, “We” ”, “Our”) operates the “Service,” which is defined as any Website or Web page (or mobile application) on which this set of Terms appears (“Website”), and any data, services, activity or transactions that are offered, made available or facilitated through any of the above. These Terms of Service (“Terms of Service” or “Terms”) are a legally binding agreement (“Agreement”) that applies to the Service and governs Your use of the Service and Your (“You” or “Your”) relationship with Us. You accept and agree to these Terms of Service by either:
- Accessing or using the Service;
- Clicking to accept these Terms of Service, or
- Accepting these Terms of Service in any other way.
We and You may be referred to herein individually as a “Party” or collectively as the “Parties”.
If You violate these Terms of Service, or if You do not agree to these Terms of Service, shouldn’t access (and You don’t have Our permission to access) the Service.In addition, if You intend to provide to Us, or receive from Us, data regarding European residents, please see Section 13, which You must agree to. 2. Changes to the terms of service We may modify these Terms of Service in Our sole discretion by posting updated versions of these Terms of Service on the Website or otherwise providing notice to You. All such changes shall become effective upon the posting of the revised Terms of Service on the Website or upon notice, as applicable. 3. Changes to the service We may change the features and functionality of the Service at any time. This may include adding, modifying or removing any features or functionality of the Service. The Terms of Service will apply to any changed version of the Service. We also may suspend or stop the Service altogether. In addition, may impose or alter fees for new or existing aspects of the Service. 4. Eligibility restrictions To use the Service, must have reached the age of majority in the jurisdiction where You live (in most U.S. states, that’s 18 years old). If You are under this age, shouldn’t use the Service or provide Submitted Data (defined below) to Us. 5. Your account You will need to set up an account access most aspects of the Service, including in most cases to submit data (“Submitted Data”) or to receive data (“Output Data”). You should read the important information about the rules governing the Submitted Data and Output Data, in the sections below. Important rules also govern Your account itself. First, must only provide account information (such as Your name and email address) that is Your own, and that is accurate. You should keep Your contact information accurate as Well, so that We can contact You if We need to, such as to deliver any important notices. We also strongly recommend changing Your password periodically, and that You not share Your password or account credentials with anyone else. You are solely responsible for maintaining the confidentiality of Your account information, such as Your username and password, and for restricting access to Your computer and other devices; You agree and understand that You will be liable for any activity occurring through Your account. 6. Your license to the service You may be and hereby are granted, during the Term, a non-exclusive, terminable license to use the Service and Output Data for (and solely for) Your personal and/or Your internal business purposes only, subject to the prohibitions and restrictions herein, and a non-exclusive, terminable license to store, print or make a copy of Output Data We provide to You solely for Your personal or internal business purposes. You may not resell, distribute, or create derivative works from the Service or the Output Data. You may not develop any service, product, toolset, dataset or derivative work from the Output Data or the Service, whether in aggregated or non-aggregated form, and whether in identified or de-identified form. 7. Data sharing and rights: Our free services When You provide Submitted Data through the Service, understand and agree to the following, except where We and You have put in place a Premium Services Agreement (or other agreement) that expressly supersedes the below Terms: a. The Licenses You Grant Us. When You provide Us with or make available to Us any Submitted Data, such as names, addresses, business titles or phone numbers of contacts or other persons, are granting Us several licenses to use that data (and You are representing to Us that You have the right to make this grant):
- You grant Us a perpetual and irrevocable license to access and use the Submitted Data in aggregated form, to provide, develop and improve the Service and Our data assets, so long as We do not () in any public way refer to You or the company You work for in relation to the Submitted Data (for instance, We will never sell a list titled “List of Brand X’s Clients), or (ii) use the Submitted Data in a way that violates any contract We have entered into, or any law.
- You also grant Us a perpetual and irrevocable license to sublicense, make available, copy, display, publish or distribute the Submitted Data to any third–party, including Our customers, business partners, and service providers.
- You grant Us a perpetual and irrevocable create derivative works, data models, or modeled data sets with the Submitted Data. You agree that We will own those derivative works (but not the actual Submitted Data that is distinct from those works). Examples of derivative works (without limitation) would be, for instance, if We create aggregated or modeled data sets that combine data from numerous providers form a new or new type of data set. Another example would be if We used multiple sets of Submitted Data (from multiple providers) derive data analytics about certain industries, buyers, or industry prospects.
- You also grant Us a perpetual and irrevocable right to use, share, sublicense, display, copy, publish and distribute the Submitted Data in aggregated, de-identified form for any purpose, in any medium.
- The foregoing license grants to MarketJoy shall be non-exclusive, perpetual and royalty-free. MarketJoy shall have the right to sublicense, assign, or transfer such licenses its discretion.
b. The Representations You Make Us. It is important to Us that You have the right to grant Us the licenses We’ve described above. If You don’t, please do not provide any Submitted Data to Us. If You’re not sure whether You do, please take the time to confirm whether that is the case. We will still be here when You’re ready.
- You therefore warrant and represent that You have all necessary rights, permissions, and authority to provide the Submitted Data to Us (in whole and in part), and that doing so will not put You in violation of any agreements with third-parties or any laws. We provide certain examples of laws that theoretically could apply, so please continue to read.
- You likewise warrant and represent that the Submitted Data does not contain any information about individuals under the age of 18.
- You warrant and represent that providing the Submitted Data to Us does not violate the U.S. HIPAA (Health Information Portability and Accountability Act) law: for instance, it is not a list of hospital or doctor’s patients, or a similar dataset consisting of patients or clients of an entity covered by HIPAA (this might include, for instance, a doctor, dentist, chiropractor, acupuncturist, pharmacist or other health professional). Similarly, warrant and represent that you shall not provide Us with Submitted Data consisting of a list of clients of an entity covered by the GLBA (Gramm-Leach-Bliley Act), which applies to many types of financial institutions including banks, hedge funds, investment advisers and insurance companies.
- You warrant and represent that You will only provide Submitted Data to Us that is true and accurate, and of living persons.
- Federal Arbitration Act. You agree that these Terms of Service affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
- Initial Dispute Resolution. Most disputes can be resolved without resort to litigation. The Parties agree to use reasonable efforts to settle any dispute or claim, and good faith negotiations shall be a condition to either Party initiating a lawsuit or arbitration, other than lawsuits or arbitration for injunctive relief from alleged intellectual property infringement. To commence this procedure, agree to contact Our support department at [email protected], or We may contact You using the most current available information We have for You.
- Binding Arbitration. If the Parties do not reach an agreed-upon solution within a period of ten (10) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then the Parties agree to resolve by binding arbitration any and all controversies, claims, or disputes arising out of, relating to, or resulting from (1) Your relationship with the Us, (2) these Terms of Service or an Order Form, (3) any other aspect of the Service. These Terms of Service are intended to require binding arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of these Terms of Service are expressly excluded from Section 18.
- Governing Arbitration Rules. All claims subject to arbitration shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS rules in effect at the time the arbitration is initiated, excluding any rules or procedures that would permit class actions or other representative actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms of Service or an Order Form including but not limited to any claim that all or any part of these Terms of Service or an Order Form (such as this Section 18) is void or voidable, or whether a claim is subject to arbitration, except that the arbitrator shall have no authority to find that a claim may proceed on a class basis or as part of another representative action: only a court may address disputes regarding the validity or enforceability of the Class Action Waiver section below, Section 18(1)(7). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To start an arbitration, unless there are conflicting rules at www.jamsadr.com, You must do the following: (A) Write a Demand for Arbitration that includes a description of the claim and the amount of damages You seek to recover. You may find a copy of a Demand for Arbitration at www.jamsadr.com; (B) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to the JAMS offices where the arbitration should take place (as described in Section 18(1)(6) below); and (C) Send one copy of the Demand for Arbitration to Us at 100 Northcliffe Drive, Suite 72, Gulf Breeze, FL 32562, USA.
- The arbitrator shall have the power to award any remedies available under applicable law, and the arbitrator shall award attorneys’ fees and costs to the prevailing Party, except as prohibited by law. The Parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
- If You are a resident of the United States, arbitration may take place at any reasonable location within the United States convenient for You. For residents outside the United States, arbitration shall be initiated in Santa Rosa County, Florida, United States of America, and You and We agree to submit to the personal jurisdiction of any court in Santa Rosa County, Florida, or the Federal Courts in Pensacola, Florida, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The arbitrator shall allow participation via electronic means such as Zoom, Skype, Microsoft Teams, or any other mutually agreed methodology.
- Class Action Waiver. The Parties agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the Parties expressly waive their right to file a class action, seek relief on a class basis, or join or serve as a member of a class action. 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 PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If for any reason the proper decisionmaker determines that the waiver of class and representative actions set forth in this paragraph is void or unenforceable or that an arbitration can proceed on a class or representative basis, then Section 18(1)(2)-(7) shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
- 30-Day Right to Out. You have the right to opt out and not be bound by this version of Section 18(1) by sending written notice of Your decision to opt out to [email protected] with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of the first date that You agree to, or are deemed to agree to, any version of these Terms of Service that contains this version of Section 18(1). If You do not opt out, will be bound to arbitrate disputes in accordance with the terms of this Section 18(1). You have the right to consult with counsel of Your choice concerning this Section 18(1). You understand that You will not be subject to retaliation if You exercise Your right to opt out of coverage under this Section 18(1). If You opt out of Section 18(1), We also will not be bound by it in its disputes with You.
- Changes to this Section. MarketJoy will provide (60) days’ notice of any changes to this Section 18(1). Changes will become effective on the sixtieth (60th) will apply prospectively only to claims arising after the sixtieth (60th) day. If a court or arbitrator (in either case, with the authority to make such decision) decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from Section 18(1) and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section You agreed to.
2. Limitations to this Agreement to arbitrate
Section 18(1) (Arbitration and Class Action Waiver) shall be limited as follows:
- Intellectual Property Claims. Notwithstanding the Parties’ decision to resolve all disputes through arbitration, either Party may bring an action on an individual (not class or representative action) basis in state or federal court or in the U.S. Patent and Trademark Office to protect its patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights.
3. Governing law
The Terms of Service and the relationship between You and MarketJoy shall be governed in all respects by the laws of the State of Delaware, without regard to its conflict of law provisions. Any claim or dispute either of Us may have against the other that is not subject to arbitration must be resolved by a court located in Santa Rosa County, Florida, or the Federal Courts in Pensacola, Florida. The Parties agree to submit to the personal jurisdiction of the courts located within Santa Rosa County, Florida, or the Federal Courts in Pensacola, Florida, for the purpose of litigating all such claims or disputes that are not subject to arbitration.18. Indemnification You agree to indemnify and hold harmless MarketJoy, its directors, officers, employees, contractors and agents, and its suppliers, licensors, and service providers, from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorneys’ fees and expenses (collectively, “Claims”), arising out of or in connection with: (1) Your use of the Website or Service; (2) Your breach of these Terms of Service or an Order Form; or (3) Your violation of any applicable law or the rights held by any third–party. MarketJoy will have the right, but not the obligation, to participate through counsel of its choice in any defense by You of any Claims as to which You are required to defend, indemnify, or hold harmless MarketJoy. You may not settle any Claims in a manner that may impose any obligation upon MarketJoy, without Our prior written consent. The members of corporate family, and the agents, partners, employees, contractors and advertisers of them and of MarketJoy, are third-party beneficiaries of this paragraph. Other than them, there are no other third-party beneficiaries of the Terms of Service. 19. Other a. Complete Agreement and Understanding. These Terms of Service are the entire and exclusive understanding and agreement between Us and You regarding the Service, and these Terms supersede and replace prior oral or written understandings or agreements between Us and You regarding such topic, provided that any express modification in an Order Form shall govern and supersede any conflicting provision in these Terms. b. Our Relationship You. The relationship between You and Us is that of independent contractors, and nothing in these Terms of Service shall be construed to create or imply any other relationship such as a partnership or an employer/employee or agency relationship.
c. Assignment and Waiver. MarketJoy may assign these Terms at its discretion. You may not assign, sublicense or transfer these Terms (or Our license grant to You herein) in whole or in part to anyone else. No waiver of any obligation or right of either Party shall be effective unless in writing, executed by the Party against whom it is being enforced. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
20. Account security
We make no representations or promises regarding security. Despite Our security efforts, it is possible that unauthorized individuals will obtain Your information, such as through Web-scraping tools (even though We do not authorize and in fact prohibit that behavior).
- You are responsible for accessing Our network, systems, or application only through encrypted connections.
- You are responsible for maintaining up-to-date OS (operating system) patching and active antimalware on the end-user devices used to connect to Our environment.
- You are responsible for ensuring that Your terminated employees have their access revoked to the MarketJoy Service within 24 hours of termination.
- You are required to notify Us within of security incidents that could have implications to Us (e.g., Your user has compromised credentials or laptop stolen, have knowledge of a partner network compromise including malware worm or ransomware, etc.)
- Your users are responsible for keeping user IDs and passwords used to access Our systems confidential at all times. You agree to keep Our Intellectual Property and proprietary information confidential.
- MarketJoy runs a vulnerability discovery program. If You suspect there are any vulnerability with Our Service, please reach out to [email protected] and We will those for You.
21. Linked servicesThe Service may contain links to — or even reside on — third-party Websites and services that are not owned or controlled by Us (“Third-Party Services”). The Service may sometimes make available embedded links or content from such Third-Party Services, such as for promotions or information hosted by a third-party Website. We do not assume responsibility for any such third-party Websites, Third-Party Services or content. If You view, access or otherwise interact with any such Websites, Third-Party Services or content, do so at Your own risk and You agree that We have no liability arising from such access. 22. Termination In addition to any other remedies it may have, either Party may terminate this Agreement or an applicable Order Form effective immediately, if the other Party materially breaches any of the terms or conditions of this Agreement or the applicable Order Form and fails to cure such material breach within thirty (30) days of its receipt of a written notice identifying the breach in reasonable detail (or ten (10) days in the case of non-payment). In addition, (a) for paid subscriptions, may terminate this Agreement or the applicable Order Form for convenience by providing You at least thirty (30) days’ prior written notice; and (b) for unpaid accounts only, either Party may terminate this Agreement or the applicable Order Form, effective immediately, by providing the other Party written notice. For paid subscriptions, will pay in full for the Service up to and including the last day on which the Service is provided. Legal notices (including but not limited to termination notices) must be sent to [email protected] or 100 Northcliffe Drive, Suite 72, Gulf Breeze, FL 32562, We will send legal notices to You via a method of Our choosing that is reasonably intended to provide such notice to You, including without limitation via the Service or to the email or other address You have provided to Us. If this Agreement terminates, will no longer be authorized to access the Website or Services. Sections 7-9, 10, 11, 15-19 and 22-23 of the Agreement will survive termination. 23. Severability If any provision of these Terms is determined by a court to be invalid, illegal or unenforceable, that determination will not affect the validity or enforceability of the remaining provisions of the Terms, and each provision shall be considered as separate, severable and distinct from each other. 24. Force majeure Neither Party to these Terms will be deemed responsible or liable for its failure to perform or delay in performance under these Terms (or any Order Form) where such delay or failure is beyond its control, such as where caused by strikes or labor disputes, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, natural disasters including floods, earthquakes and hurricanes, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing. Last Updated: 22 May 2023