“Authorized User” means an individual who is authorized by You and Jolly to access the Jolly Service, and may include, for example, Your employees, agents, or third parties with whom You transact business.

“Data” means any Contact Data (as defined herein) and any data within the Uploaded Data Files.

“Documentation” means the installation guides, manuals and other documentation or instructions made available to You by Jolly which are related to the Jolly Service, which may be updated by Jolly from time to time.

“Implementation Fee” means the amount indicated on the Order Form that is designated as an “Implementation Fee,” if any.

“Initial Points Deposit Amount” means the initial amount paid (or to be paid) in connection with Points to be made available by You under the Points Program, as set forth on the Order Form, which may be modified from time to time by Jolly or You via your Jolly Account or by emailing support@jolly.com.

“Order Form” means the order form for Your purchases of any subscription or services from Jolly that You and Jolly have agreed to, whether via Jolly’s online portal, a mutually executed written order form, or otherwise.

“Launch Date” means the Launch Date indicated on the applicable Order Form.

“Jolly Service” means Jolly’s products and services that are ordered by You pursuant to an Order Form or otherwise offered to You or any Authorized User in connection with this Agreement and any other software-as-a-service available via https://dashboard.jolly.com, and/or such other web pages designated by Jolly, including associated offline components found in the Documentation. 

“Jolly Member App” means Jolly’s products and services that enable Members to access, view or otherwise manage Points, which may include any mobile or website application made available to Members by Jolly.

“Jolly Shop” means the marketplace through which Members may redeem Points for goods, services, experiences, or other offerings, subject to availability, the Jolly Terms and Conditions, and any applicable vendor terms. Jolly may modify the Jolly Shop marketplace and available goods and services at any time.

“Jolly Terms of Service” means the Terms of Service that all Members must agree to as a condition of being granted access to Points or the Jolly Member App.  

“Members” means (i) Your employee, agent, independent contractor, or representative that you have designated as a “Member” through your Account, or (ii) any customers of Yours who has validly registered to access and use the Jolly Platform.

“Member Census” means the estimate census of Members, as indicated on the Order Form. 

“Payment Terms” means the billing or invoicing cadence indicated on the Order Form under the designation “Payment Terms.”

“Platform Fee” means the amount indicated on the Order Form that is designated as a “Monthly Platform Fee,” if any.

“Points Program” means  the program offered via the Jolly Platform under which You may make Points available to Members tied to their achievement of various Goals.

“Points Purchase” means each purchase of Points that You make to make such Points available under the Points Program. 

“Points Balance” means Your Points Purchase balance, net of any Points made available to Members, as indicated in Your Jolly Account. 

“System of Record” means the business or data system that You use and enable for receipt of data from the Jolly Platform, whether through secure file transfer protocol or application programing interface. 

“Uploaded Data Files” means any data files which have been uploaded into the Jolly Service by You or an Authorized User for processing.

Jolly Account. In order to access certain services on the Jolly Platform, You will be required to set up an account (the “Account” or “Jolly Account”) and set a username and password for Your Account, as well as providing any further information that Jolly may request. Any usernames or passwords provided should be safeguarded at all times. You are solely responsible for keeping Your usernames and/or passwords safe and secure, and for all activity using Your usernames and/or passwords. You agree to notify Jolly promptly of any unauthorized use of Your Account or any other breach of security. You agree that, to the extent permitted by law and unless such access results from Jolly’s negligence or willful misconduct, Jolly will not be liable for any loss You may incur as a result of someone other than You using Your Account to access information, either with or without Your knowledge. Each Authorized User may also be required to create a Jolly Account and obtain Logon Credentials, as further described in Section 2.13.

Integration. The parties shall, by mutual agreement in writing (which may be via email), establish the relevant technical, security, and administrative requirements to be met in setting up and maintaining the integration between the Jolly Platform and System of Record (“Integration”), which shall include the design, implementation, and configuration(s) of each such Integration.  Without limiting the foregoing, the design, implementation and configuration of the Integration shall be mutually agreed by the parties in good faith. Each party shall implement and maintain the portions of the Integration created by such party, including proper operations and security controls thereof.  If the Integration is to be disconnected, the parties will, at the direction of Jolly, work together on a reasonable, orderly and appropriate disconnection process

The parties will develop a mutually agreeable project plan for the Integration that specifically addresses, at a minimum, establishing and implementing each of the following in a risk-based approach, which shall be no less protective than the requirements otherwise set forth in this Jolly Subscription Agreement: (A) security controls; (B) appropriate firewalls; (C) intrusion detection; (D) audit requirements, (E) identification and authentication of users; (F) logical access controls; (G) virus scanning; and (H) physical and environmental security.

Each party is responsible for the hardware and software used by such party to build, implement and maintain its side of the Integration. Each Party shall bear its own costs and expenses for developing and maintaining its respective portion of the Integration.

As used herein, “Specifications” shall mean any interface specifications, file layouts, application program interface(s) (“APIs”), and related materials provided by either party to the other party in relation to the Integration. Specifications provided by a party under this Jolly Subscription Agreement are solely for the recipient party’s development, use and maintenance of the Integration as contemplated by this Jolly Subscription Agreement and solely for transmission and sharing of a Member data through the Integration. JOLLY PROVIDES ITS SPECIFICATIONS HEREUNDER “AS-IS” AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, RELATED TO MATERIALS, SPECIFICATIONS OR DOCUMENTATION PROVIDED BY JOLLY HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.  

Subscription Grant. Subject to the terms and conditions of this Jolly Subscription Agreement, Jolly hereby grants to You, a limited, non-exclusive, non-transferable, non-sublicensable right, during the Term, to permit Your Authorized Users to (a) access and use the Jolly Service in accordance with the terms hereunder and Jolly’s specifications and Documentation; and (b) use the Documentation in support of such Authorized Users’ permitted use of the Jolly Service.

Subscription.  You acknowledge that Your and Your Authorized Users’ use of the Jolly Service is subject to and limited by the terms of this Jolly Subscription Agreement, and that Your Authorized Users’ right to access and use the Jolly Service is subject to their compliance with the Jolly Terms of Service and this Jolly Subscription Agreement.  No additional rights are granted herein, and nothing hereunder shall be construed as granting any rights related to Jolly Member App to Members.  You agree that You shall be solely responsible for any breaches of this Jolly Subscription Agreement by any Authorized Users to whom You provide access to the Jolly Service. To use the Jolly Services, You and an Authorized User must have an account with Jolly (an “Account”). You hereby authorize (and shall ensure each Authorized User authorizes) Jolly to obtain and store Account information as necessary to make the Platform or Jolly Services available to You or Authorized Users. You agree to safeguard all credentials used to access the Account(s), and You are responsible for all activities that occur on your or your Authorized Users’ Accounts.

Subscription Restrictions. You agree that Your right to use and access the Jolly Service is subject to the following restrictions: 

The Jolly Platform.  Jolly has developed the Jolly Platform, which connects You with Members who have validly registered to access and use the Jolly Platform in order for you to provide Points to Members under a Points Program.  If You have been granted access to the Jolly Platform, You will be able to choose Goals for Members via the Jolly Platform.  You may use the Jolly Services to create Points Program based on Your choices for the Goals that You would like to reward Your Members for to incentivize such Goals. You may designate Points to transfer to Members, and such Points will be subject to the Jolly Terms and Conditions. To receive Points, Members must claim the Points. If Members fail to claim Points allocated to the Member by the end of a calendar month, such Points will automatically be returned to You and added to your Points Balance. For example, if You transfer Points to a Member on the 30^th day of a 31 day calendar month and such Member fails to claim such Points by the end of the 31^st day of the calendar month, then the Points will be returned to You. You may re-transfer such Points in the following month to the Member, and Member must claim the Points before the end of such month. You authorize Jolly, in its discretion and as your agent, to determine how to administer the Points Program, including the allocation and transfer of any Point You purchased to Members. In the event a Member fails to claim Points in the times prescribed hereunder or the Jolly Terms of Services, you designate Jolly, as your agent, to, in its discretion, re-transfer or allocate Points to such Member.  You understand and acknowledge that Points purchased by you pursuant to Section 3 will be transferred to Members from time to time based on Jolly’s determination or as You may elect through the Jolly Platform. Any transfer of Points to a member will reduce your Points Balance, and Points may only be redeemed through the Jolly Shop, subject to the Jolly Terms and Conditions. 

Jolly Service Support.

Third-Party Equipment/Software.  You acknowledge and agree that to use the Jolly Service You will need a personal computing device, a tablet, or other computing device which has Internet access and is in compliance with the specifications set forth in the Documentation.  In addition, certain third-party software which is not incorporated into the Jolly Service may be required to be loaded onto such computer or other device (each such device when properly installed with any necessary third-party software, if any, to access the Jolly Service, herein referred to as an “Authorized Device”) for You to access, use, or enjoy the full benefit of the Jolly Service (including a compatible third-party web browser). You shall be fully responsible for obtaining Authorized Devices for use by your Authorized Users or for instructing your Authorized Users on how to install the necessary third-party software on their personal computers or devices, at Your own cost.  Your use of such separately acquired third-party software shall be in accordance with any terms and conditions of the end user license agreement provided with such software.  You acknowledge that Your access to and use of the Jolly Service does not carry, and You do not receive under this Jolly Subscription Agreement any license, covenant not to sue, or other rights under any third-party intellectual property rights or other rights.

Right to Audit.  You agree to keep records sufficient to demonstrate Your compliance with this Jolly Subscription Agreement, including the number of Authorized Users using the Jolly Service.  Jolly may, upon reasonable advance written notice to You, audit Your use of the Jolly Service.  If an audit reveals that You have used the Jolly Service beyond the scope of this Jolly Subscription Agreement, or You have failed to pay any associated Platform Fees for such use, then, in addition to any other remedies Jolly may have, You shall cure such breach within thirty (30) days of written notice from Jolly by paying all applicable Platform Fees which were due and payable by You at the time You exceeded the scope of Your subscription or failed to pay such Platform Fees.  In the event any such audit reveals that You have underpaid Jolly by an amount greater than five percent (5%) of the amounts due Jolly in the period being audited, or that You have knowingly breached any material obligation hereunder, then, You shall also pay or reimburse Jolly the cost of the audit.  

Privacy. Your access to the Jolly Service may require Your Authorized Users to provide certain personal information about You and/or or Your Members (hereinafter referred to as “Contact Data”). The types of Contact Data that may be collected via the Jolly Service are set forth in Jolly’s Privacy Policy. Without limiting the foregoing, such Contact Data may include Your Authorized Users’ Logon Credentials (as defined below), name, email address, telephone number, mailing address, organization name, employment title, and/or certain technical information about the system hardware and software that is being used by Your Authorized Users. Jolly will collect, use, and in certain limited circumstances disclose Your Contact Data (e.g., to contractors and service providers who are assisting Jolly in the operation or hosting of the Jolly Service) in accordance with Jolly’s Privacy Policy. As a condition to uploading any Contact Data to the Jolly Service and/or otherwise accessing and using the Jolly Service, You are required to accept the terms of Jolly’s Privacy Policy, which is incorporated herein by reference. You hereby acknowledge and agree that You have read Jolly’s current Privacy Policy which is available at https://jolly.com/privacy. You acknowledge and agree that Jolly processes such information, including Contact Data, in its capacity as data processor and that You remain at all times the data controller of such processing. Notwithstanding anything to the contrary, in Your capacity as data controller, it is Your exclusive responsibility to obtain all necessary consents to such processing, to convey the information notices as required by applicable law, to make any necessary filings with the appropriate data protection authority(ies), to enforce and comply with any request to access and/or rectify and/or delete any Contact Data of your Authorized Users. You agree to indemnify and defend Jolly against any suits, actions, claims or proceedings, whether originating from Your Authorized Users, a data protection authority and/or a third party in this respect.

Protection of Your Data.  Jolly will use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data (including Your Contact Data). Although Jolly uses reasonable efforts to safeguard the security of such information, transmissions made on or through the Internet cannot be guaranteed to be secure. In addition, You acknowledge that submissions made via e-mail are not protected by encryption and are vulnerable to interception during transmission.  You further acknowledge that if You elect to use the Jolly Service’s public features, any data provided therein may become publicly accessible. 

Server Communication Features. You acknowledge and agree that the Jolly Service may contain server access restrictions, security and other technology designed to offer You features that prevent unauthorized access or use of the Jolly Service.  You agree that You will not attempt to, or encourage or assist any other person to, circumvent, or modify any security technologies included as part of the Jolly Service.

Logon Credentials.  You acknowledge and agree that, if the necessary functionality is made available as part of the Jolly Service, You shall require each Authorized User to create a user account, including a username and password, or other logon credentials (altogether, “Logon Credentials”) to access and use the Jolly Service. Each Authorized User is solely responsible for maintaining the confidentiality of his or her Logon Credentials and for all activities on the Jolly Service that occur through the use of such Logon Credentials.

Linked Bank Account. In order to access Jolly Services, You must link one or more of Your U.S. bank accounts or credit or debit cards (a “Linked Bank Account”) using the services of one or more of Jolly’s third-party service providers, unless otherwise agreed, which may be via email. You agree not to change Your Linked Bank Account without Jolly’s advance written consent. We may access Your Linked Bank Account and any information related to Your Linked Bank Account, and may use such information for any purpose, subject to Jolly’s Privacy Policy and applicable law. You must maintain at least one (1) Linked Bank Account in connection with the Jolly Services at all times. You understand that services of third-party service providers that facilitate the liking of accounts are governed by terms and conditions and the privacy policies of such providers, and You expressly relieve Jolly from any and all liability arising from your use of any third-party websites, applications, services, or content. You authorize Jolly to debit your Linked Bank Account for any Points purchases and any other amounts due hereunder, as further described under this Jolly Subscription Agreement.

Business Associate Agreement. If You are a covered entity under the Health Insurance Portability and Accountability Act, as amended by the Health Information Technology for Economic and Clinical Health Act, then You shall enter into the Business Associate Agreement, attached hereto as Schedule 3, with Jolly.

Fees.  You shall pay all fees specified in Your Order Form or as otherwise set forth in the Jolly Platform or dashboard made available to You by Jolly, including the Platform Fees and, if applicable, the Implementation Fee.  Except as otherwise specified herein or in an Order Form, (a) fees are quoted and payable in United States dollars; (b) fees are based on products and/or services purchased and not actual usage; and (c) payment obligations and Point purchases are non-cancelable and fees paid are non-refundable.  You hereby authorize Jolly and/or its payment processor to charge to, or debit from, the Linked Bank Account or any other payment method you provide to Jolly through the Jolly Platform for all fees due and payable, including in connection with payment related to Point Purchases associated with the Initial Points Deposit Amount, Reloads and/or Renewal Points Deposit Amount . You represent and warrant that (i) all payment information You provide to Jolly is accurate, current and complete; (ii) You have the legal right to use the payment method You provide to Jolly; and (iii) such payment method is not establish primarily for personal, family or household purposes.

Point Purchase. Prior to the Launch Date, You must purchase Points so Your Points Balance equals the Initial Points Deposit Amount. You may, from time to time, select through the Jolly Platform the minimum Point Balance your Account will maintain (which may be no less than ten percent (10%) of the Initial Points Deposit Amount, unless otherwise permitted by Jolly). If you do not select a minimum Point Balance, a default minimum balance equal to $10 worth of Points multiplied by the number of then Members, representing the total value to be purchased in Points (which may be automatically updated as Member count increases or decreases) (or any other threshold determined by Jolly, as disclosed to you via the Jolly Platform (the “Budget”). If at any time your Points Balance is equal to or less than ten percent (10%) of the Budget, Jolly will notify You and You must then promptly purchase Points so Your Points Balance equals the Budget (each such purchase, a “Reload”). You authorize Jolly to initiate a debit to your Linked Bank Account automatically to fulfill a Reload or to otherwise satisfy your Budget. Your purchase of Points is non-cancelable and non-refundable. Each Points Purchase shall be used to provide Points to Members and you authorize Jolly, as your agent, to, in its sole discretion, select or determine which Points to offer.  You may make additional Points Purchases via the Jolly Platform at any time, and you may modify the Initial Points Deposit Amount and Budget by emailing support@jolly.com.  Any modification will not take effect until the first day of the following calendar month, unless Jolly notifies you otherwise. You must pay Jolly for Points at the time of the Points Purchase, and no Points will be made available to You or Members until payment has been made to Jolly. Your Members use, earning, and redemption of Points are subject to the Jolly Terms and Conditions. You understand that Points may only be redeemable at or through the Jolly Shop. If You are permitted to freeze or suspend a Member’s access or participation in the Points Program, or you otherwise freeze, suspend or reclaim Points from Members, you agree to indemnify and hold Jolly harmless from any losses, liability or claims related to such freeze, suspension or reclamation. You understand that if your employee or independent contractor that is a Member participating in the Points Program do not claim Points allocated to such employee or independent contractor by last the day of the month in which Points were assigned to such employee or independent contractor, the Points may automatically be returned to your Points Balance, and you shall be responsible for any claims made by such employee or independent contractor.   If any Points in a Member’s Jolly account are not used by such Member within six (6) months of such Points being deposited to their account, then such Points will no longer be eligible to be redeemed by such Member and be added to Your Points Balance. Upon termination of this Agreement, Your Points Balance and any Points balance in Member’ accounts shall be forfeited to Jolly.

Invoicing and Payment.  Jolly will invoice You in advance based on the Payment Term indicated in the Order Form.  Platform Fees will be invoiced to You based on the payment terms indicated in the Order Form. Unless otherwise stated in Your Order Form(s), invoiced charges are due seven (7) days after the invoice date.  You are responsible for maintaining complete and accurate billing and contact information on file with Jolly.  You authorize Jolly to bill and debit the Linked Bank Account to pay invoices for the Jolly Service and/or Professional Services on or about the date of invoice issuance, and Jolly shall store and continue billing your payment method to avoid interruption of the Jolly Service and/or Professional Services.  You further authorize us to bill and debit the Linked Bank Account for Point Purchases required hereunder, including for payment related to Point Purchases associated with the Initial Points Deposit Amount, Reloads and/or Renewal Points Deposit Amount. If You fail to make payments when due, then in addition to its other rights and remedies, Jolly will have the right to terminate this Agreement, suspend service in accordance with Section 3.4 and/or to recover Jolly’s reasonable costs and expenses, including reasonable attorneys’ fees, expended in collection of such amounts due.

Disputes.  Jolly must receive written notice of any disputed charges from You within fifteen (15) days after the invoice date or You shall be deemed to have waived Your right to dispute charges.  Notwithstanding any dispute, You shall pay any undisputed amount of the invoice on or before the due date.  The dispute notice shall set forth in reasonable detail the information concerning the disputed charges.  The parties shall use best efforts to promptly resolve any disputed charges.

Member True-Up. If at any time period set forth in the Jolly Platform or as otherwise disclosed to you by Jolly Your Members in such period differs from the Member Census, then if such number of Member is greater than the Member Census, you must purchase Points in an amount equal to Renewal Points Deposit Amount. The “Renewal Points Deposit Amount” is calculated by taking the difference of the number of Members Census and actual Members at the time of measurement, multiplying the result by $10, and finally dividing the then Point-to-USD conversion rate established by Jolly, as may be disclosed in the Jolly Platform or by Jolly. You authorize Jolly to debit your Linked Bank Account for the purchase of Points contemplated hereunder. 

Points Disclaimer. Points have no retail or cash value, are not redeemable for cash or any other form of credit. Members have no ownership interest in accrued Points, and accrued Points do not constitute property of a Member. Use of the word “earn” herein, or in marketing materials, in relation to Points shall mean “collect” and shall not mean that the Points have any value until they are presented for redemption. Points may not be purchased or sold, and are not transferable, except as otherwise stated herein. No per-Point exchange rate is implied or guaranteed.

Fee Increases. Jolly may, in its sole discretion, increase its fees for the Jolly Service upon each Renewal Term. 

Suspension of Service and Acceleration. If any amount owed by You under this or any other agreement for any Jolly products and/or services is thirty (30) or more days overdue (or ten (10) or more days overdue in the case of amounts You have authorized Jolly to charge to Your credit card), Jolly may, without limiting its other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and/or suspend Your and Your Authorized Users' access to any services, including the Jolly Service, until such amounts are paid in full.

Overdue Charges. Any fees not paid when due shall accrue interest at the rate of 3% per annum, or the maximum rate permitted by law, whichever is lower.

Taxes. Unless otherwise stated, Jolly’s fees and pricing do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with transactions hereunder, including of benefits received by Members. If Jolly has the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Jolly with a valid tax exemption certificate authorized by the appropriate taxing authority. You acknowledge and agree that You are responsible for payment, if any, of local, state, or and/or federal taxes in connection with the Points redeemed or otherwise used by Your employees (regardless of whether or not such tax or charge is imposed directly on You) and any penalties or assessments thereon. Jolly does not withhold taxes or file any tax forms with applicable governmental authorities in connection with Your provisioning of or any of Your employees’ access to or use of Points, and makes no representations or warranties with respect to the tax consequences of the Points. All Points shall be considered benefits provided by You to Your employees for purposes of tax filings, payments and withholdings. To the extent Jolly is required by law to pay any such tax or charge or file any tax forms, You agree to promptly indemnify Jolly for any such payment, together with any applicable penalties, additions to tax or interest thereon, and any costs or expenses related to any filing.

“Confidential Information” means all confidential information in oral, written, graphic, electronic, or other form including, but not limited to, past, present, and future business, financial and commercial information, business concepts, prices and pricing methods, marketing and customer information, financial forecasts and projections, technical data and information, formulae, analyses, trade secrets, ideas, inventions, discoveries, methods, processes, know-how, computer programs, source code, products, equipment, product road maps, prototypes, samples, designs, data sheets, schematics, configurations, specifications, techniques, drawings, and any other data or information disclosed, whether orally, visually, or in writing. Among other things, Jolly regards the source and object code, processes, algorithms, methods, and related know-how and residual knowledge developed, created or used by Jolly or its agents in connection with the performance of the Jolly Service, including, without limitation, any software products, processing platforms or other tools named in the Order Form or provided by Jolly, and any documentation relating thereto including any modifications, enhancements, new versions or derivative works thereof, and all trade secrets, copyrights, patents and other intellectual and proprietary rights therein as Jolly’s Confidential Information. Confidential Information shall not include data or information which (a) was in the public domain at the time it was disclosed or falls within the public domain, except through the fault of the receiving party; (b) was known to the receiving party at the time of disclosure without an obligation of confidentiality, as evidenced by the receiving party's written records; (c) is disclosed after written approval of the disclosing party; (d) becomes known to the receiving party from a source other than the disclosing party without an obligation of confidentiality; or (v) is developed by the receiving party independently of the disclosing party’s confidential information as demonstrated by written records.

During the term of this Jolly Subscription Agreement, neither party shall (a) disclose to any unaffiliated third party any Confidential Information (provided Jolly may disclose any Data which constitutes Confidential Information in accordance with its Privacy Policy); or (b) use the Confidential Information for any purpose other than that indicated in this Jolly Subscription Agreement without the disclosing party’s prior written approval. The receiving party agrees to notify the disclosing party promptly of any unauthorized disclosure of Confidential Information and to assist the receiving party in remedying any such unauthorized disclosure.  The receiving party agrees that all persons having access to the Confidential Information under this Jolly Subscription Agreement will abide by the obligations set forth in this Jolly Subscription Agreement.  Nothing in this Jolly Subscription Agreement shall be construed to restrict the parties from disclosing Confidential Information as required by law or court order or other governmental order or request, provided in each case the party requested to make such disclosure shall timely inform the other party and use all reasonable efforts to limit the disclosure and maintain the confidentiality of such Confidential Information to the extent possible.  In addition, the party required to make such disclosure shall permit the other party to attempt to limit such disclosure by appropriate legal means.

Neither party will disclose to the other party any third-party confidential information without first obtaining the written consent of such third party. 

All Confidential Information disclosed hereunder shall remain the sole property of the disclosing party and the receiving party shall have no interest in or rights with respect thereto except as expressly set forth in this Jolly Subscription Agreement.   

Jolly may contract with third parties to perform services, including marketing assistance, e-mail delivery, hosting, back-up and recovery services, customer service, and data analysis and shall have the right to disclose Your Confidential Information to such third party in connection with their performance of services on Jolly’s behalf. Jolly requires any third-party service providers to maintain the confidentiality of the information disclosed to them and such third parties are not permitted to use Confidential Information for any purpose other than to provide services to Jolly.

Notwithstanding anything to the contrary in this Section 4, You authorize Jolly, and Jolly shall be able to use and disclose the following Confidential Information, without further notice to You, for the limited purposes specified in this Section 4.6:

By giving Jolly the right to access Your employees’ and Your accounts on Your Platform, You agree and acknowledge that you give Jolly the right to screen scrape such Your Platform, as required to retrieve data from the Your Platform for use on the Jolly Service and to provide the Jolly Service to You.

The provisions in this Section 4 shall survive for five (5) years after termination of this Jolly Subscription Agreement, except that with respect to any Confidential Information that constitutes a trade secret as defined under applicable law, the receiving party will continue to be bound by its obligations under this Section 4 for so long as such information continues to be eligible for trade secret protection under applicable law, but in no event for a period of less than the five (5) year period specified immediately above.

Jolly Ownership.  As between Jolly and You, Jolly retains all rights, title, and interest (including all intellectual property rights and other rights) in and to the Jolly Service, including any updates of any of the foregoing, and any feedback submitted by You in accordance with Section 5.3 regarding Jolly’s current or future products or services, subject only to the limited rights expressly set forth in Section 2.1 of these Jolly Service Subscription Terms and Conditions. You do not acquire any other rights, express or implied, in the Jolly Service other than those rights expressly granted under this Jolly Subscription Agreement. 

Ownership of Your Data.  Jolly does not claim any ownership rights to any Uploaded Data Files created by Authorized Users, which are and shall continue to be the sole and exclusive property of You or Authorized Users, as applicable.  Notwithstanding anything in the Jolly Subscription Agreement to the contrary, Jolly shall have the right to collect and analyze Your Data and other content or information relating to the provision, use and performance of various aspects of the Jolly Service and related systems and technologies, and Jolly will be free (during and after the term hereof) to (a) use, access, store, copy, display and transmit such data, content and information to improve and enhance the Jolly Service and for other development, diagnostic and corrective purposes in connection with the Jolly Service and other Jolly offerings; (b) otherwise use and disclose such data, content and information in accordance with Jolly’s Privacy Policy; and (c) disclose such data in aggregate or other de-identified form (“Anonymized Data”) in connection with its business. Anonymized Data will not be considered Your Confidential Information. No rights or licenses are granted except as expressly set forth herein.

Feedback. If You elect to provide any feedback or comments to Jolly related to the Jolly Service (“Feedback”), all of Your Feedback shall be the sole and exclusive property of Jolly, and Jolly shall have the right to use and disclose such Feedback in any manner and for any purpose in Jolly’s discretion without remuneration, compensation or attribution to You, provided that Jolly is under no obligation to use such Feedback. 

Customer Lists.  Notwithstanding anything herein to the contrary, Jolly may (a) display Your name and logo on its website and related marketing assets as a customer of the Jolly Service, and (b) use and publish Your testimonials and Feedback regarding the Jolly Service in publications, presentations, and marketing assets used by Jolly.

Limited Warranty. During the Term, Jolly warrants that the Jolly Service will function in substantial accordance with its written specifications and Documentation.  In addition, Jolly warrants that any services to be provided under any Professional Services Addendum will be provided in a professional and workmanlike manner.  In the event of a breach of Jolly’s warranty of this Section 6.1, Jolly agrees to use commercially reasonable efforts to cause the Jolly Service to function in substantial accordance with its specifications and Documentation and/or to re-perform the professional services, as applicable.  If Jolly notifies You that it is unable to remedy any material breach of this warranty, You or Jolly shall have the right to terminate the effected service and, upon such termination, Jolly will refund to You a pro rata portion of any fees You prepaid for the canceled service based on the remaining unused portion of the Term for the canceled service. For the avoidance of doubt, You will not be provided any refunds for Points purchased, whether such Points have been claimed or remain in your Point Balance.  For any breach of the warranty above, Your sole and exclusive remedy shall be as provided in this Section 6.1.  THE FOREGOING WARRANTY SHALL NOT APPLY TO JOLLY SERVICE PROVIDED UNDER A PILOT OR EVALUATION OFFERING OR SUBSCRIPTION.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 6.1, THE JOLLY SERVICE AND SERVICES PROVIDED HEREUNDER (INCLUDING ANY SERVICES PROVIDED UNDER ANY SCHEDULES OR ADDENDUMS TO THE JOLLY SUBSCRIPTION AGREEMENT) ARE PROVIDED “AS IS”, “AS-AVAILABLE”, WITH ALL FAULTS, AND Jolly MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY JOLLY OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 6.1, YOUR USE OF THE Jolly SERVICE IS ENTIRELY AT YOUR OWN RISK AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability. EXCEPT TO THE EXTENT THE FOLLOWING LIMITATION OF LIABILITY IS PROHIBITED BY LAW, JOLLY’S TOTAL LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES SUSTAINED BY YOU UP TO the MONTHLY PLATFORM FEE; PROVIDED THAT, REGARDLESS OF ANY STATUTE OR LAW, NO CLAIM OR CAUSE OF ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS JOLLY SUBSCRIPTION AGREEMENT MAY BE BROUGHT BY YOU MORE THAN TWELVE (12) MONTHS AFTER THE FACTS GIVING RISE TO THE CAUSE OF ACTION HAVE OCCURRED, REGARDLESS OF WHETHER THOSE FACTS BY THAT TIME ARE KNOWN TO, OR REASONABLY OUGHT TO HAVE BEEN DISCOVERED BY YOU; FURTHERMORE, NEITHER JOLLY NOR ANY OF ITS LICENSORS SHALL BE LIABLE TO YOU FOR PERSONAL INJURY, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL OR LOST PROFITS), UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THIS Jolly SUBSCRIPTION AGREEMENT (INCLUSIVE OF ANY SCHEDULES AND/OR ADDENDUMS HEREUNDER), EVEN IF JOLLY HAS BEEN ADVISED OF THE RISK OF SUCH DAMAGES.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.  THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 6.2 AND IN THE OTHER PROVISIONS OF THIS JOLLY SUBSCRIPTION AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE ESSENTIAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH JOLLY WOULD NOT HAVE ENTERED INTO THIS JOLLY SUBSCRIPTION AGREEMENT. 

Your Indemnity Obligations. You agree to defend Jolly, its affiliates, employees, agents, assigns, and licensors against any third party suits, actions, claims, or proceedings (“Claim”) (i) alleging that the content and/or Data (including Contact Data) in any Uploaded Data Files uploaded by You or Your Authorized Users infringe or misappropriate a third party’s intellectual property, privacy or other rights; (ii) arising out of any Excluded Claims; or (ii) resulting from Your or Your Authorized Users' breach of or failure to comply with any term, condition, representation, or covenant under this Jolly Subscription Agreement, and You agree to indemnify and hold Jolly its affiliates, employees, agents, assigns, and licensors harmless from all damages, liabilities, costs and expenses, including reasonable attorneys’ fees, incurred by or awarded against Jolly or its affiliates, employees, agents, assigns, and licensors that may result from Excluded Claims or from any such third party claim contemplated hereunder.

Jolly’s Indemnity Obligations.  Jolly agrees to indemnify and defend You from and against any Claim initiated by a third party alleging that Your use of the Jolly Service in accordance with the terms of this Jolly Subscription Agreement infringes any third-party intellectual property rights; provided, however, that Jolly shall not be obligated to indemnify and defend You from and against any Claim to the extent arising from (i) any matter for which You are obligated to indemnify Jolly pursuant to Section 7.1 above; (ii) use of the Jolly Service with any other software or service not provided by Jolly, if, but for such combination, the use of the Jolly Service would not have been infringing; and/or (iii) use of the Jolly Service under a pilot or evaluation subscription.  In addition, You shall be obligated to notify Jolly promptly upon learning of any Claim for which You are seeking indemnification pursuant to this Section 7.2, and You must provide Jolly with sole control and authority over the defense and/or settlement of the Claim, subject to Your provision of reasonable assistance at the request of Jolly and at Jolly’s expense.  Should the Jolly Service become or, in Jolly’s reasonable opinion is likely to become, the subject of any Claim, Jolly may, at its option and expense, either: (a) procure for You the right to continue to use the Jolly Service as contemplated by this Jolly Subscription Agreement, (b) replace or modify the Jolly Service to make its use in accordance with this Jolly Subscription Agreement non-infringing, or (c) with thirty (30) days’ notice to You, terminate this Jolly Subscription Agreement and refund to You any prepaid Platform Fees covering the remainder of the Term after the effective date of termination.  Jolly will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by You or any Authorized User; (B) use of the Jolly Platform by You or any Authorized User not in accordance with this Jolly Subscription Agreement; (C) modification of the Jolly Platform by or on behalf of You; (D) Your Confidential Information; (E) Your Member’s use of the Jolly Member App; (F) Your actions or inactions with Members, including any communications you may have with Members and any allocation or reclaiming of Points from Members; or (G) the combination, operation or use of the Jolly Platform with other products or services where the Jolly Platform would not by itself be infringing (clauses (A) through (E), “Excluded Claims”).  

Exclusive Remedy.  This Section 7 states Jolly’s sole liability to, and the Jolly’s exclusive remedy against, You for any type of Claim described in this Section 7.2.

Term of Agreement.  This Jolly Subscription Agreement shall commence on the Effective Date and remain in effect for the Initial Subscription Term identified in the Order Form (“Initial Subscription Term”), and thereafter, Your subscription will automatically renew for additional one (1) year-terms (each a “Renewal Term,” and together with the Initial Subscription Term, the “Term”), unless either party provides written notice to the other at least ninety (90) days prior to the expiration of the then-current subscription term. 

Termination. You and Jolly may terminate this Jolly Subscription Agreement at any time upon mutual agreement. 

Termination for Cause by Jolly. Jolly may terminate this Jolly Subscription Agreement immediately upon written notice to You (or, at Jolly’s sole discretion, suspend Your access to the Jolly Service without terminating the Jolly Subscription Agreement), without liability to You, if: (a) You fail to pay any undisputed fees when due and such failure continues for more than ten (10) days after written notice of non-payment; (b) You materially breach any provision of this Jolly Subscription Agreement (other than payment obligations) and fail to cure such breach within thirty (30) days after written notice (provided that breaches of Sections relating to confidentiality, acceptable use, intellectual property, or data security may be terminated immediately without any cure period); (c) You violate any acceptable use policy Jolly may provide to you from time to time, use the Jolly Service in a manner that Jolly reasonably believes creates a material security risk, materially interferes with the operation or performance of the Jolly Service for other customers, or is unlawful, fraudulent, or abusive; or (d) You become insolvent, admit in writing an inability to pay debts as they become due, make an assignment for the benefit of creditors, file or have filed against You a petition in bankruptcy or similar proceeding (which is not dismissed within sixty (60) days), or cease to conduct business in the ordinary course.

Suspension Rights. Without limiting Jolly’s termination rights above, Jolly may suspend Your and Members’ access to the Jolly Service (in whole or in part), without liability, upon prior written notice (or immediately in cases of material security risk, unlawful use, or violation of law): (a) if You fail to pay any undisputed fees when due; (b) if Jolly reasonably determines that continued access poses a material risk to the security, integrity, availability, or performance of the Jolly Service or any third-party systems or to Jolly or any third party; or (c) as required by law or regulation. Suspension will not relieve You of Your payment obligations under this Jolly Subscription Agreement. Jolly will use commercially reasonable efforts to reinstate access promptly after the issue giving rise to suspension is resolved.

Effects of Termination.  Upon termination of this Jolly Subscription Agreement, all subscriptions granted to You hereunder shall terminate and Your Authorized Users shall cease all use of the Jolly Service.  Except as otherwise expressly set forth in Section 6.1, in the event of termination of this Jolly Subscription Agreement for any reason, all fees paid in advance are non-refundable and You will not be entitled to a pro rata refund of any portion of such fees.

Surviving Provisions.   Sections 2.8, 3.3, 3.4, 3.9, 3.10, 4, 5, 6, 7, 8 and 9 will survive any termination of this Jolly Subscription Agreement, together with any payment obligations owed by You to Jolly for Jolly Service and/or services under any Schedules or Addenda received prior to the effective date of termination. 

Governing Law. This Jolly Subscription Agreement and all matters arising out of or relating to this Jolly Subscription Agreement shall be governed by the internal laws of the State of New York without giving effect to any choice of law rule.  This Jolly Subscription Agreement shall not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded.  

Dispute Resolution. The Parties hereby agree that any disputes under this Agreement will be resolved pursuant to the laws of the State of New York and the United States of America, without giving effect of any conflicts of laws principles. Except as provided below, any dispute, controversy or claim arising out of, or relating to, this Agreement or breach of this Agreement, or the transactions contemplated hereby, shall be settled in accordance with the following procedures:

Severability and Waiver.  If any provision of this Jolly Subscription Agreement is held to be illegal, invalid, or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Jolly Subscription Agreement, while the remainder of this Jolly Subscription Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Jolly Subscription Agreement will not constitute a waiver of any other or subsequent default or breach.

Entire Agreement; Amendment. The Jolly Subscription Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and understandings between the parties including, without limitation, any prior purchase orders or requests for proposals. If there is any conflict or inconsistency between the applicable Order Form and the Schedules, the Order Form will control but only to the extent of the conflict.  Jolly may modify all or any part of this Jolly Subscription Agreement or add any Schedule for new Jolly services from time to time, in which case Jolly will update the “Last Updated” date at the top of this Jolly Subscription Agreement. The updated Jolly Subscription Agreement and/or Schedules will be effective as of Your continued access or use of the Jolly Service after the “Last Updated” date will be deemed acceptance of the modified Jolly Subscription Agreement and/or Schedule. It is Your responsibility to review this Jolly Subscription Agreement from time to time to view any such changes. 

No Assignment.  You may not assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Jolly Subscription Agreement or any rights or obligations under this Jolly Subscription Agreement without the prior written consent of Jolly which may be withheld at Jolly’s discretion.  Any purported assignment, transfer or delegation by You shall be null and void.  Jolly shall have the right to assign this Jolly Subscription Agreement without Your consent and without prior notice to You.  Subject to the foregoing, this Jolly Subscription Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns.

Legal Compliance; Export Administration; and Government Users.  By accepting this Jolly Subscription Agreement You represent and warrant that You and Your Authorized Users (a) are not located in a jurisdiction that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country, and will not use the Jolly Service in such jurisdictions; (b) are not listed on any U.S. government list of prohibited or restricted parties; and (c) will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”).  If You are an agency or instrumentality of the United States Government, the Jolly Service and the software accessed there through constitutes “commercial computer software” and the Documentation constitutes “commercial computer software documentation”, and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Jolly Service, the software accessed there through and Documentation are governed by the terms of this Jolly Subscription Agreement.  The manufacturer of the software accessed through the Jolly Service is Jolly with an address at  447 West 18th Street, Suite G2, New York, NY 10011.

Conflicts.  In the event of any conflict or inconsistency between this Jolly Subscription Agreement and the Jolly Service Terms of Service, the terms of this Jolly Subscription Agreement shall control and prevail to the extent of such conflict or inconsistency.

Injunctive Relief.  You acknowledge and agree that a breach or threatened breach of any covenant contained in this Jolly Subscription Agreement would cause irreparable injury, that money damages would be an inadequate remedy and that Jolly shall be entitled to temporary and permanent injunctive relief, without the posting of any bond or other security, to restrain You, from such breach or threatened breach.  Nothing in this Section 9.6 shall be construed as preventing Jolly from pursuing any and all remedies available to it, including the recovery of money damages from You.

Independent Contractor.  Jolly’s relationship with You will be that of an independent contractor.  It is agreed and understood that neither party is the agent, representative, nor partner of the other and neither party has any authority or power to bind or contract in the name of or to create any liability against the other in any way or for any purpose pursuant to this Jolly Subscription Agreement.  Nothing contained in this Jolly Subscription Agreement shall be construed to give either party the power to direct and control the day-to-day activities of the other, constitute the parties as partners, joint venturers, principal and agent, employer and employee, co-owners, or otherwise as participants in a joint undertaking, or allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.

Notices. All notices, authorizations and requests in connection with the Jolly Subscription Agreement are deemed given on the day they are (a) on the day personally delivered to the Party for whom intended; (b) the earlier of two business days after being deposited in the US mails, postage prepaid, certified or registered, return receipt requested, or upon receipt; (c) the earlier of one business day after being sent by a nationally recognized overnight courier with a reliable tracing system, charges prepaid, return receipt requested, or upon receipt; or (d) on the date of transmission if delivered by electronic mail within the hours before 5:00 p.m. of the time in effect at the place of receipt or on the next business day if such transmission is made later than 5:00 p.m.; and to the address set forth in the Order Form or to such other address as a Party may from time to time advise to the other Party by notice in writing.

Non-Disparagement. Each party agrees and covenants that it shall not make, publish, or communicate defamatory or disparaging remarks, comments, or statements concerning any of the other party’s or the other party’s affiliate’s products or services. Each party agrees and covenants that it shall not make, publish, or communicate to any person or entity or in any public forum any maliciously false, defamatory, or disparaging remarks, comments, or statements concerning the other party or its affiliates or its businesses, or any of its employees, officers, or directors and their existing and prospective customers, suppliers, investors, and other associated third parties, now or at any time in the future.

Language.  English is the language of this Jolly Subscription Agreement, and all communications and proceedings must be conducted in English. If this Jolly Subscription Agreement is translated, then the English language version will control. 

General.  Jolly will use commercially reasonable efforts to provide the professional services (“Professional Services”) described in the statement of work to be attached to the Order Form (“Statement of Work”).

Statement of Work.  The Statement of Work shall include, at a minimum, a description of the Professional Services to be performed, the hourly/daily billing rate for the Professional Services, and any additional terms to which the parties agree.  If a provision contained in the Statement of Work is different from or conflicts with a provision in this Professional Services Addendum, the provision in this Professional Services Addendum shall prevail and control, unless otherwise expressly agreed by the parties in the applicable Statement of Work.  Although Jolly believes that the total of fees and expenses set forth in each Statement of Work is accurate, You acknowledge that actual fees and expenses may vary.

Delivery and Acceptance of Professional Services.  You shall have ten (10) days following Jolly’s delivery of any deliverable hereunder, specifically identified and further defined in a Statement of Work as requiring acceptance, to accept the deliverable.  Your acceptance shall be deemed to have occurred upon Your written notification of acceptance to Jolly or expiration of the ten (10) day period, or the five (5) day period referenced below.  You agree to notify Jolly in writing of acceptance or rejection of the deliverable, or any portion thereof, within ten (10) days of delivery of such deliverable, or in accordance with the review and/or testing period as set forth in the Statement of Work, or as otherwise agreed to in writing by both parties.  Any rejection will state specifically the reason for such rejection.  Upon such notice of rejection of a deliverable, Jolly shall have a reasonable time to remedy the deficiencies identified by You.  Upon Your receipt of such remedy, You shall have five (5) days to confirm the deficiencies have been corrected. The parties may agree to repeat this procedure until acceptance of the deliverable or termination of the applicable Statement of Work.  If You reject such deliverable three (3) or more times, You may elect to (i) extend the time for Jolly to once again attempt to remedy such deficiency; (ii) retain such rejected deliverable and pay to Jolly the amount specified in the Statement of Work; or (iii) terminate the Statement of Work, return the deliverable, and obtain a refund for amounts paid for Professional Services performed specifically in the creation of the non-conforming portion of the deliverable.  

Change Control.  From time to time during the course of performing the Professional Services, either party may propose additions or changes in writing to an existing Statement of Work (“Change Request”).  Jolly will respond to a Change Request in writing specifying the impact, if any, on price and the time for performance of the Professional Services.  The parties shall negotiate the terms of the Change Request in good faith and upon agreement, the change and its impact on price and schedule shall be set forth in writing and signed by the parties.  Jolly shall not be required to commence work related to any Change Request until both parties’ authorized representatives have signed such writing.  

Delays.  Jolly will use commercially reasonable efforts to notify You of any delay or anticipated delay in its performance of the Professional Services, the reason for and anticipated length of the delay, and an initial proposal for remedying the delay.  Any change, modification, or extension to the applicable Statement of Work pursuant to this Section 1.5 shall be documented in writing by way of a Change Request or otherwise and signed by an authorized representative for each party.  Notwithstanding the foregoing, if You fail to provide in a timely manner any materials You are required to provide as stated in the Statement of Work within a reasonable time after being requested to so by Jolly and such materials are required for Jolly to timely perform the Professional Services set forth in such Statement of Work, then any completion date(s) associated with milestones identified in such Statement of Work shall be extended by an amount of time at least equal to Customer’s delay.

Jolly retains sole ownership of (and is free to use) any intangible ideas, residual knowledge, concepts, know-how and techniques related to or learned from its performance of the Professional Services, including, without limitation, any intangible ideas, residual knowledge, concepts, know-how, and techniques related to any new product features for the Jolly Service, whether or not created for You.  In addition, if the Professional Services include education and training, then Jolly and its suppliers retain all right, title, and interest in and to the courseware (software and documentation) provided in conjunction with such services.

Each party retains ownership of the intellectual property rights in its pre-existing materials, including, without limitation, any software programs, source code, databases, documentation, and any derivatives or modifications thereof (the “Pre-Existing Materials”) which is provided to the other party pursuant to this Professional Services Addendum or any Statement of Work.  Without limiting the generality of the foregoing, Jolly retains ownership of the Jolly Service, and any source code, updates, improvements, enhancements, modifications or derivative works thereof, whether or not patentable, and whether or not made in connection with the performance of the Professional Services.  

You hereby grant to Jolly a royalty-free license to use Your Pre-existing Materials to provide the Professional Services.

Terms Defined in Regulation: Unless otherwise provided in this Agreement, all capitalized terms in this Agreement will have the same meaning as provided under the Privacy Rule, the Security Rule and the Breach Notification Rule.

Protected Health Information or PHI: Protected Health Information (“PHI”) means PHI that is received from Covered Entity, or created, maintained or transmitted on behalf of Covered Entity, by Business Associate.

Performance of Services: Business Associate will Use or Disclose PHI only for those purposes necessary to perform Services, or as otherwise expressly permitted in this Agreement or Required by Law, and will not further Use or Disclose such PHI.

Subcontractors: Business Associate agrees that, in accordance with 45 C.F.R. § 164.502(e)(1), if Business Associate’s Subcontractor creates, receives, maintains or transmits PHI on behalf of Business Associate, Business Associate will enter into an agreement with such Subcontractor that contains substantially the same restrictions and conditions on the Use and Disclosure of PHI as contained in this Agreement.

Business Associate Management, Administration and Legal Responsibilities: Business Associate may Use PHI for Business Associate’s management and administration, or to carry out Business Associate’s legal responsibilities. Business Associate may Disclose PHI to a third party for such purposes only if: (1) the Disclosure is Required by Law; or (2) Business Associate secures written assurance from the receiving party that the receiving party will: (i) hold the PHI confidentially; (ii) Use or Disclose the PHI only as Required by Law or for the purposes for which it was Disclosed to the recipient; and (iii) notify the Business Associate of any other Use or Disclosure of PHI.

Data Aggregation and De-Identification: Business Associate may Use PHI to perform data aggregation services as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B). Business Associate may also de-identify PHI in accordance with 45 C.F.R. § 164.514.

Covered Entity Responsibilities: To the extent Business Associate is to carry out Covered Entity’s obligations under the Privacy Rule, Business Associate will comply with the requirements of the Privacy Rule that apply to Covered Entity’s compliance with such obligations.

Adequate Safeguards: Business Associate will implement and maintain appropriate safeguards to prevent any Use or Disclosure of PHI for purposes other than those permitted by this Agreement, including administrative, physical and technical safeguards to protect the confidentiality, integrity, and availability of any electronic protected health information (“ePHI”), if any, that Business Associate creates, receives, maintains, and transmits on behalf of Covered Entity.

Compliance with HIPAA Security Rule: Business Associate will comply with the applicable requirements of the HIPAA Security Rule.

Use or Disclosure Not Permitted by This Agreement: Business Associate will report in writing to Covered Entity any Use or Disclosure of PHI for purposes other than those permitted by this Agreement within ten (10) business days of Business Associate’s learning of such Use or Disclosure

Security Incidents: Business Associate will report in writing to Covered Entity any Security Incident of which Business Associate becomes aware. Specifically, Business Associate will report to Covered Entity any successful unauthorized access, Use, Disclosure, modification, or destruction of ePHl or interference with system operations in an information system containing ePHI of which Business Associate becomes aware within ten (10) business days of Business Associate learning of such Security Incident. Business Associate also will report the aggregate number of unsuccessful, unauthorized attempts to access, Use, Disclose, modify, or destroy ePHI or interfere with system operations in an information system containing ePHI, of which Business Associate becomes aware, provided that: (i) such reports will be provided only as frequently as the parties mutually agree, but no more than once per month; and (ii) if the definition of “Security Incident” under the Security Standards is amended to remove the requirement for reporting “unsuccessful” attempts to Use, Disclose, modify or destroy ePHI, the portion of this Section ‎4 addressing the reporting of unsuccessful, unauthorized attempts will no longer apply as of the effective date of such amendment.

Breaches of Unsecured PHI: Business Associate will report in writing to Covered Entity any Breach of Unsecured Protected Health Information, as defined in the Breach Notification Rule, within ten (10) business days of the date Business Associate learns of the incident giving rise to the Breach Business Associate will provide such information to Covered Entity as required in the Breach Notification Rule.

Covered Entity Access: To the extent Business Associate maintains PHI in a Designated Record Set that is not duplicative of a Designated Record Set maintained by Covered Entity, Business Associate will make such PHI available to Covered Entity within ten (10) business days of a request by Covered Entity for access to such PHI.

Individual Access: If an Individual makes a request for access directly to Business Associate, Business Associate will within ten (10) business days forward such request in writing to Covered Entity. Covered Entity will be responsible for making all determinations regarding the grant or denial of an Individual’s request for PHI and Business Associate will make no such determinations. Only Covered Entity will release PHI to an Individual pursuant to such a request, unless Covered Entity directs Business Associate to do so.

Covered Entity Request: To the extent Business Associate maintains PHI in a Designated Record Set that is not duplicative of a Designated Record Set maintained by Covered Entity, Business Associate will provide such PHI to Covered Entity for amendment within ten (10) business days of receiving a request from Covered Entity to amend an Individual’s PHI. Alternatively, if Covered Entity’s request includes specific instructions on how to amend the PHI, Business Associate will incorporate such amendment into the PHI it holds in a Designated Record Set within ten (10) business days of receipt of the Covered Entity’s request.

Individual Request: If an Individual makes a request for amendment directly to Business Associate, Business Associate will within ten (10) business days forward such request in writing to Covered Entity. Covered Entity will be responsible for making all determinations regarding amendments to PHI and Business Associate will make no such determinations unless Covered Entity directs Business Associate to do so.

Disclosure Records: Business Associate will keep a record of any Disclosure of PHI that Business Associate makes, if Covered Entity would be required to provide an accounting to Individuals of such Disclosures under 45 C.F.R. § 164.528. Business Associate will maintain its record of such Disclosures for six (6) years from the date of the Disclosure.

Data Regarding Disclosures: For each Disclosure for which it is required to keep a record under paragraph ‎7‎(‎a), Business Associate will record and maintain the following information: (1) the date of Disclosure; (2) the name of the entity or person who received the PHI and the address of such entity or person, if known; (3) a description of the PHI Disclosed; and (4) a brief statement of the purpose of the Disclosure.

Provision to Covered Entity: Within ten (10) business days of receiving a notice from Covered Entity, Business Associate will provide to Covered Entity its records of Disclosures.

Request by Individual: If an Individual requests an accounting of Disclosures directly from Business Associate, Business Associate will forward the request and its record of Disclosures to Covered Entity within ten (10) business days of Business Associate’s receipt of the Individual’s request. Covered Entity will be responsible for preparing and delivering the accounting to the Individual. Business Associate will not provide an accounting of its Disclosures directly to any Individual, unless directed by Covered Entity to do so.

Return or Destruction of PHI: Within thirty (30) days of termination of this Agreement, Business Associate will return to Covered Entity all PHI that Business Associate or its Subcontractors maintain in any form or format. Alternatively, Business Associate may, upon Covered Entity’s consent, destroy all such PHI and provide Covered Entity with written documentation of such destruction.

Retention of PHI if Return or Destruction is Infeasible: If Business Associate believes that returning or destroying PHI at the termination of this Agreement is infeasible, it will provide written notice to Covered Entity within thirty (30) days of the effective date of termination of this Agreement. Such notice will set forth the circumstances that Business Associate believes makes the return or destruction of PHI infeasible and the measures that Business Associate will take for assuring the continued confidentiality and security of the PHI. Business Associate will extend all protections, limitations and restrictions of this Agreement to Business Associate’s Use or Disclosure of the PHI retained after termination of this Agreement and will limit further Uses or Disclosures of such PHI to those purposes that make the return or destruction of the PHI infeasible.

COMPLIANCE WITH LAWS: The parties are required to comply with federal and state laws. If this Agreement must be amended to secure such compliance, the parties will meet in good faith to agree upon such amendments. If the parties cannot agree upon such amendments, then either party may terminate this Agreement upon thirty (30) days’ written notice to the other party.

CONSTRUCTION OF TERMS: The terms of this Agreement will be construed in light of any applicable interpretation or guidance on the Privacy Rule, the Security Rule or the Breach Notification Rule issued by HHS.

NO THIRD-PARTY BENEFICIARIES: Nothing in this Agreement will confer upon any person other than the parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.

NOTICES: All notices required under the Agreement will be given in writing and will be delivered by (1) personal service, (2) first class mail, or (3) messenger or courier. All notices shall be addressed and delivered to the contact designated in the signature block to the Order Form, or other address provided by the party from time to time in writing to the other party. Notices given by mail will be deemed for all purposes to have been given forty-eight hours after deposit with the United States Postal Service. Notices delivered by any other authorized means will be deemed to have been given upon actual delivery.

ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the parties with regard to the Privacy Rule, the Security Rule and the Breach Notification Rule, there are no understandings or agreements relating to this Agreement that are not fully expressed in this Agreement and no change, waiver or discharge of obligations arising under this Agreement will be valid unless in writing and executed by the party against whom such change, waiver or discharge is sought to be enforced.

WRITTEN AGREEMENT: This Agreement will be considered an attachment to the underlying agreement or arrangement and is incorporated as though fully set forth within the underlying agreement or arrangement. This Agreement will govern in the event of conflict or inconsistency with any provision of the underlying agreement or arrangement.

COUNTERPARTS AND SIGNATURE: This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and when taken together shall constitute one agreement. Facsimile and electronic signatures shall be deemed to be original signatures for all purposes of this Agreement.

CHOICE OF LAW: The validity, construction and effect of this Agreement will be governed by the laws of the State of Delaware, without giving effect to that state’s conflict of laws rules. Any Dispute will be resolved in a forum located in the State of Delaware.