Terms and Conditions

Effective Date: April 1, 2024

These Terms and Conditions ("Terms") are entered into by and between Emerald Business Solutions, LLC, doing business as Cajoon, with its principal place of business at 1420 Celebration Blvd, Suite 200, Celebration, FL 34747 ("Cajoon"), and the entity agreeing to these Terms through any Order Form or Statement of Work ("Client"). The parties agree as follows:

1. Terms & Conditions

1.1 Provision of Services

Cajoon will provide its services through the Cajoon Merchant Services platform and the Cajoon Customer Experience & Reputation Marketing platform ("Subscription Service"), along with any related professional services for implementing these platforms ("Professional Services"; collectively, "Services") in accordance with these Terms and any specified terms in a customer agreement, reseller agreement, or order form ("Order Form") or a statement of work for the delivery of Professional Services ("Statement of Work"). The Client understands and agrees that onboarding and implementation of the Services may require up to 2 hours over a 4-week period. The Client's reasonable and timely participation is crucial, and delays caused by the Client will not alter the duration of any agreement or serve as grounds for non-payment or termination.

1.2 Third-Party Sites

The Client may integrate the Subscription Service with or utilize data from third-party websites or services ("Third Party Sites"), such as Facebook, Google, and Twitter. Cajoon does not control these Third Party Sites' terms of use, privacy policies, operations, intellectual property, performance, or content and disclaims all liability for their use. The Services may use third-party software ("Third Party Software"), which is licensed under the terms of the third party that licenses such software. By using the Services, the Client agrees to comply with the licensing terms of all Third Party Software used.

1.3 Subscription Service Content

The Client may receive data generated by the Subscription Service during use. This data may be displayed on the Client's website but may not be modified or used for other purposes, such as analytics, without Cajoon's express written approval. This includes data and content owned or licensed by third parties, and the Client's use of such data is further restricted by the third party's license terms and website terms of use. Cajoon fully disclaims responsibility and liability for the Client's use of any third-party data and content under these Terms.

1.4 Compliance with Third-Party Site Terms

The Client agrees to adhere to the terms of service of all major review sites, including Google, Facebook, Yelp, etc., when using the Services. Review gating is prohibited; the Client must treat all feedback equally regardless of sentiment. Failure to comply with third-party review site policies may result in suspension of the Client's account after a 30-day notice period.

1.5 TCPA and 10DLC Compliance

Both parties shall comply with the Telephone Consumer Protection Act ("TCPA") and are responsible for obtaining necessary consents for messaging. If using SMS-related Services, the Client must comply with A2P 10DLC standards, including registration and obtaining customer opt-ins. Cajoon may pass on 10DLC carrier fees to the Client and may act as the Client's legal representative in the 10DLC registration process when necessary.

1.6 Account Protection

Upon discovering any security breach of login information, the Client must immediately deactivate the affected account or change the credentials. This also applies to credentials of individuals no longer authorized by the Client to access the Subscription Service.

1.7 Fair Use

Cajoon ensures the availability of the Services, which requires each customer to adhere to a fair use policy. Overuse may affect the stability of the platform, and Cajoon may limit or invoice for excessive use. Cajoon is not liable for enforcing this policy, but enforcement will not waive the Client's obligation to pay for the Services.

1.8 Client's Restrictions on Use of Services

The Client agrees not to engage in prohibited activities, including but not limited to infringing on intellectual property, violating laws, or engaging in harmful or illegal activities. Cajoon has the right to enforce these restrictions and may cooperate with law enforcement authorities in prosecuting violators.

2. FEES AND PAYMENT

2.1 Fees. The Client shall pay Cajoon the undisputed fees in the currency and as of the date set forth in each Order Form or Statement of Work. Client’s payments under these Terms are due net thirty (30) days from the Client’s receipt of Cajoon’s invoice unless agreed otherwise by the Parties in the applicable Order Form or Statement of Work. All fees are exclusive of applicable sales, excise, value-added, or use taxes. Except for income taxes levied on Cajoon’s net income, the Client shall pay or reimburse Cajoon for all national, federal, provincial, state, local, or other taxes and assessments of any jurisdiction, which are legally payable by the Client for charges set, services performed or to be performed, or payments made or to be made hereunder. The Client shall not be entitled to deduct the amount of any such taxes, duties, or assessments from payments made to Cajoon under these Terms. This provision shall survive the termination of these Terms and shall be applicable regardless of the time frame in which the requirement of the payment of such taxes or assessments is asserted. The Client will notify Cajoon of any invoice dispute within thirty (30) days of receipt of the invoice, at which time the parties will engage in good faith efforts to resolve the dispute.

2.2 Late Payments. The Client's failure to pay undisputed fees when due constitutes a material breach of these Terms. If payment is not made within thirty (30) days of when it is due, Cajoon may, in its sole discretion, choose to do any or all of the following: (i) charge the Client a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly; and/or (ii) suspend the Client's access to the Subscription Service and/or the delivery of the Professional Services. Cajoon’s suspension or resumption of the Subscription Service or Professional Services does not limit or prevent Cajoon from pursuing all other remedies available.

2.3 Auto Renew. If you have entered into an agreement for Services with Cajoon, the agreement will auto-renew in compliance with applicable law as further set forth herein. Unless otherwise noted in the Order Form or Statement of Work, any agreement for Services will auto-renew for the same period of time as the initial term of the agreement unless written notice of non-renewal is provided to Cajoon at least 90 days prior to the date of renewal.

3. PROPRIETARY RIGHTS

3.1 Ownership; License; Retained Rights. Cajoon owns all right, title, and interest in and to the Subscription Service, including, without limitation, all modifications, improvements, enhancements, integrations, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein ("Rights"), and any and all Rights developed as part of the delivery and receipt of the Professional Services. Cajoon grants the Client a limited, revocable, royalty-free, non-exclusive, non-transferable license to use the Subscription Service, and any deliverables developed pursuant to the delivery of Professional Services hereunder in relation to the Client's use of the Service, for the term of the applicable Order Form or Statement of Work. All rights not expressly granted to the Client hereunder are reserved by Cajoon.

3.2 Restrictions. Unless otherwise permitted in writing by Cajoon, the Client may not, and may not permit any third party to, (i) copy, reproduce, modify, translate, prepare derivative works of, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Subscription Service; (ii) use, evaluate or view the Subscription Service for the purpose of designing or creating a product or service competitive to Cajoon’s products or services; and/or (iii) resell or use the Subscription Service in a service bureau.

3.3 Data Collection, Ownership, and Use.

3.3.1 Client Data. During the term of this Agreement or any Order Form or Statement of Work, the Client grants Cajoon a limited, non-exclusive, royalty-free, revocable, worldwide license to use and disclose, as necessary to provide the Subscription Service and Professional Services, all information submitted by the Client and the Client's end users in connection with the Client's use of the Subscription Service (e.g., Personal Data, submitted content, product information included in feeds, transaction detail information such as unit prices and cart values, and survey data) ("Client Data"). The Client owns all Client Data. Nothing contained herein shall be construed as granting Cajoon ownership in any Client Data. The Client hereby gives Cajoon a non-revocable, worldwide, royalty-free right to use aggregated or anonymized Client Data for internal evaluation purposes only; Cajoon will never market or sell Client Data to any third party.

3.3.2 Cajoon Data. All data generated, stored or collected by Cajoon technologies which is not Client Data is owned by Cajoon ("Cajoon Data"). Cajoon Data includes, but is not limited to, all review data posted to an Cajoon microsite. The Client shall have a limited, perpetual license to use such Cajoon Data generated by the Subscription Service, subject to further provisions of these Terms.

3.3.3 Third Party Data. Data generated by the Subscription Service may include data and content that is owned or licensed by a third party, and the Client's use of such third party data and content is limited by such third party’s applicable license terms and website terms of use. Cajoon hereby disclaims responsibility and/or liability in full for the Client’s use of any such third party data and content under these Terms. Such third party data and content will be promptly destroyed, and the Client shall otherwise no longer have access to such third party data and content, upon termination of these Terms or termination of the applicable Order Form or Statement of Work.

3.4 Privacy Policy; Personal Data; Security. The collection, use and storage of Personal Data (as defined in the DPA) through Cajoon’s website is governed by Cajoon’s privacy policy, incorporated into these Terms in their entirety. If the Client's use of the Subscription Service requires Cajoon to process Personal Data, Cajoon will do so subject to Cajoon’s Data Processing Addendum. During the term of this Agreement, Cajoon shall maintain a security program materially in accordance with industry standards that is designed to: (i) ensure the security of Client Data; (ii) protect against threats or hazards to the security or integrity of Client Data; and (iii) prevent unauthorized access to Client Data. If either party believes that there has been a security breach involving Client Data, such party must promptly notify the other party, unless legally prohibited from doing so. Additionally, each party will reasonably assist the other party in mitigating any potential damage arising from any such security breach. As soon as reasonably practicable after any such security breach, Cajoon shall conduct a root cause analysis and, upon request, will share the results of its analysis and its remediation plan with the Client.

3.5 Confidential Information. "Confidential Information" includes any information shared by either party, whether directly or indirectly, in writing, orally, or through inspection of tangible objects that (i) the disclosing party designates as confidential or proprietary, or (ii) appears to be confidential or proprietary based on legends, markings, the circumstances of disclosure, or the inherent nature of the information itself (clarifying that it is not necessary for a party to label information as confidential to receive protection under this section). The parties recognize that the Subscription Service and Professional Services, the terms of these Terms and any Order Form or Statement of Work, along with other proprietary or confidential information exchanged, constitute valuable proprietary information and trade secrets. Both parties commit to maintain the confidentiality of such information, using it solely as permitted under these Terms and protecting it with the same degree of care that they use to protect their own similar information, but in no event with less than reasonable care. Each party has the right to seek an injunction to prevent any breach or continued breach of this section. The receiving party must promptly report any breaches of this section to the disclosing party. However, Confidential Information does not include information that (i) becomes publicly known through no breach by the receiving party; (ii) was independently developed by the receiving party without using any disclosed Confidential Information, as demonstrated by records; or (iii) was received from a third party who had the lawful right to share such information without restriction.

4. WARRANTY; LIMITATIONS OF LIABILITY; INDEMNITY

4.1 Cajoon Warranty. Cajoon represents and warrants that (i) it has all right, title, and interest necessary to provide the Subscription Service and Professional Services to Client under the terms set forth in these Terms and each Order Form or Statement of Work; (ii) the Subscription Service will perform materially in accordance with the terms of this Agreement; (iii) the functionality of the Subscription Service will not be materially decreased during the term of this Agreement; (iv) Cajoon shall use industry standard virus protection designed to prevent any viruses, time bombs, or other disabling code from the Subscription Service; and (v) it shall comply with all laws applicable to it in its provision of the Subscription Service. Additionally, Cajoon shall perform the Professional Services in a professional and workmanlike manner in accordance with applicable industry standards.

4.2 Client's Warranty. The Client represents and warrants that (i) they have all consents and authorizations as may be necessary for the Client to receive the Subscription Service and/or Professional Services; (ii) each site where the Subscription Service is deployed contains a privacy policy that discloses the usage of third-party technology and the data collection and usage resulting from the Subscription Service and complies with all applicable privacy laws, rules, and regulations; (iii) the Client's websites on which the Subscription Service is deployed do not contain any material which is defamatory, promotes illegal activity, or contains hate speech; and (iv) the Client has legally obtained necessary ownership or license rights to any Client Data, including Personal Data, and that they have any waivers and/or opt-in agreements in place with authorized users and Client customers that are required by applicable law in relation to the communications to be sent to such users and customers by Cajoon under this Agreement.

4.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CAJOON DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) RELATING TO THE SERVICES OR ANY SUPPORT THEREOF, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, AND ACCURACY OF DATA.

4.4 Limitations of Liability. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CAJOON’S TOTAL LIABILITY TO CLIENT FOR ALL DAMAGES EXCEED THE AMOUNT OF FEES PAID OR PAYABLE TO CAJOON BY CLIENT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.

4.5 Client's Indemnity. The Client shall indemnify, defend, and hold harmless Cajoon, its officers, agents, and employees against all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) related to any third-party claim that the Client's website or applications infringe any intellectual property rights, provided that Cajoon gives the Client prompt notice of such claim.

4.6 Cajoon Indemnity. Cajoon shall indemnify, defend, and hold harmless the Client, its officers, agents, and employees against all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) related to any third-party claim that the Subscription Service infringes any intellectual property rights, provided that the infringement does not arise from Client materials or from modifications to the Subscription Service not performed by Cajoon.

4.7 Indemnification Conditions. The obligations of each party to indemnify the other are conditional upon the indemnitee providing the indemnitor: (a) prompt notice of the claim; (b) sole control of the defense and settlement of the claim; and (c) reasonable cooperation in the defense as requested by the indemnitor. The indemnitee retains the right to participate in the defense at its own expense.

4.8 Proportional Liability. Each party's liability to indemnify the other is limited to the proportion of the harm caused by the indemnifying party. Neither party is liable for any part of an indemnified claim arising from the actions or omissions of the other party or its agents.

5. TERM AND TERMINATION

5.1 Term. These Terms commence on the Effective Date of the first Order Form and shall remain effective as long as any Order Form referring to these Terms is in effect. Except as explicitly stated otherwise in these Terms, all payment obligations under any and all Order Forms or Statements of Work are non-cancelable, and all payments made are non-refundable.

5.2 Termination for Breach. In addition to any other remedies, it may have, if either party breaches any of the material terms or conditions of these Terms and fails to cure such breach within thirty (30) days after receiving written notice from the non-breaching party, the non-breaching party may terminate these Terms, or a specific Order Form or Statement of Work, upon written notice. If these Terms, or an Order Form or Statement of Work, are terminated due to the Client's material breach, the Client will be required to pay for the Subscription Service and Professional Services that have been rendered up to the termination date, plus all other charges that would have been due under the remaining term of each affected Order Form or Statement of Work. Conversely, if termination is due solely to a breach by Cajoon, Cajoon shall refund a pro rata portion of any fees paid for services not yet rendered as of the date of termination.

6. INNOVATION FEE

Upon any auto-renewal of the Agreement, unless a prior agreement entered into with Cajoon before April 1, 2024 specifies otherwise, Cajoon will apply an 8% Innovation Fee on all recurring Service fees to cover product innovations, enhanced services, and inflation. This Innovation Fee will automatically apply to all Services covered under the Agreement at the time of the auto-renewal. The fee will be assessed on the total Services fees, including any additional fees incurred during the term. The Innovation Fee will be included in the annual invoice issued to the Client, in accordance with the payment terms set forth in the Order Form or Statement of Work.

7. Cajoon PAYMENTS

Cajoon Terms of Service: Client agrees to be bound by the Clover POS Terms of Service, which may be modified periodically by Clover POS in its sole discretion.

No PCI DSS Liability: Client understands, acknowledges, and agrees that all payment transactions processed through Cajoon Payments are done through Clover POS, a third-party payment processor that is Level 1 PCI DSS compliant. Since Cajoon does not store any payment card information, it is not subject to PCI DSS and, as a result, shall be released from any and all liability or claims related to or arising out of PCI DSS.

No Refunds of Payment Fees; Client Liability to Its Customers for Refunds: Cajoon will not refund any Payment Fees upon a refund, chargeback, or other reversal of a transaction. The amount of the refund transaction will be sent to Client's customer directly, but the Client shall remain liable to Cajoon for the Payment Fees, which Cajoon will deduct from the Client's payment account for the original transaction. The Client agrees to indemnify Cajoon against any claims related to or arising out of any claims by the Client's customer related to the amount of any refund, chargeback, or similar issue. In the event the Client's payment account does not contain the funds required to process the refund or cover the Payment Fees, the Client gives Cajoon the right to debit the Client's bank account directly to cover the shortfall.

Right to Cancel or Adjust Pricing: Cajoon reserves the right to terminate the Client's access to and use of Payments if Cajoon, in its sole discretion, determines that the Client poses too great a risk to continue using the Payments service. Additionally, Cajoon reserves the right to modify the Payment Fees, upon written notice (for which an email will suffice), in its sole discretion, if it determines that different Payment Fees are required to cover the risk posed by the Client's use of the Payments service.

Hardware/Terminals: The Client may be provided with hardware (e.g., a terminal) to assist with point-of-sale purchases using the Payments service. The Client will at all times be responsible for maintaining the terminal and will, upon termination of the Payments service or upon reasonable request from Cajoon, return all terminals in good condition and good working order.

Disputes: For disputed transactions (including allegedly fraudulent transactions), the Client is responsible for providing evidence of the relevant transaction(s) through the tools provided by Cajoon. Cajoon is not responsible for providing the evidence, nor will it be liable to the Client for lost disputes or any losses or damages arising out of or related to a lost dispute.

8. MISCELLANEOUS

8.1 Independent Contractors. In performing under these Terms, each party is acting as an independent contractor, and in no way are the parties to be construed as partners, joint ventures, or agents of one another in any respect.

8.2 Subcontractors. If Cajoon subcontracts any portion of the Professional Services to a third party, Cajoon (i) shall require such subcontractor to comply with the material terms and conditions of these Terms and (ii) remains responsible for any acts or omissions of its subcontractors as if such acts or omissions were performed by Cajoon.

8.3 Export. Client may not export or re-export any software included within the Subscription Service, either directly or indirectly, without receiving Cajoon’s written consent and any required license from the applicable governmental agency.

8.4 Force Majeure. Neither party will be in default for failing to perform any obligation hereunder, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third party networks or the public Internet, power outages, industry-wide labor disputes, or governmental demands or restrictions.

8.5 Assignment. Either party may assign these Terms in connection with (i) a merger where the contracting entity does not survive such merger, or (ii) the sale of all or substantially all of the contracting entity’s assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under the Terms without obtaining the other party’s prior written consent. Any assignment in contravention of this subsection is void.

8.6 Travel & Expense Reimbursement. Each applicable Order Form or Statement of Work will set forth any reasonable and necessary travel expenses that will need to be incurred in performance of the Professional Services under these Terms.

8.7 Notice and Delivery. Except as otherwise provided herein, all notices, statements, and other documents, and all approvals or consents that any party is required or desires to give to any other party will be given in writing and will be served in person, by express mail, by certified mail, by overnight delivery, by facsimile, or by electronic mail at the respective addresses set forth below, or at such other addresses as may be designated by such party.

8.8 Compliance with Laws and Regulations. Each party shall in good faith perform its obligations hereunder in a manner that complies with all applicable laws, regulations, ordinances and codes, including identifying and procuring required permits, certificates, approvals, and inspections. If either party receives any notice, summons, or complaint regarding its non-compliance with any such laws, regulations, ordinances, or codes, it shall promptly notify the other party of such matter.

8.9 Governing Law and Jurisdiction. These Terms and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to principles of conflicts of law. The Uniform Computer Information Transactions Act, the United Nations Convention on the International Sale of Goods, and choice of law rules of any jurisdiction, will not apply to these Terms. Any disputes, actions, claims or causes of action arising out of or in connection with these Terms shall be subject to the exclusive jurisdiction of the state or federal courts in Florida.

8.10 Entire Understanding; Order of Precedence. These Terms represent the parties' entire understanding relating to the Subscription Services and Professional Services, and supersedes any prior or contemporaneous, conflicting or additional, communications. Any conflict between these Terms, any addendum or attachment, and any Order Form or Statement of Work shall be resolved in favor of the Order Form or Statement of Work followed by the addendum or attachment over these Terms. These Terms or an Order Form may be executed by electronic signature. Except as otherwise provided in an Order Form or Statement of Work or other agreement of the parties, these Terms may only be amended by a duly executed agreement between Cajoon and the Client.

8.11 Severability; Waiver. The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

8.12 Survival. All sections of these Terms that by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.

Appendix A: Additional Terms for Clients or Partners Contracting with Cajoon

A1. SMS Services Requirements

Client understands and accepts that in order to use SMS-based Services, it will be required to register a mobile phone number on its behalf. To obtain a registered number, Cajoon will require a copy of the Client’s business registration and a utility bill or equivalent document that is in the name of the business. This documentation must be current and accurately reflect the Client's operational status and location.

A2. Use of Collections Agencies

Client acknowledges that if a payment issue cannot be resolved through good faith efforts, Cajoon may refer the Client’s overdue account to an external collections agency. By agreeing to these terms, the Client consents to such referral where necessary, under the understanding that all efforts will be made to resolve payment issues amicably before such actions are taken.