MERCHANT TERMS AND CONDITIONS

These Merchant Terms and Conditions, (“Terms”) are between the merchant indicated on the Merchant Order Information Form or JoyRun Merchant registration portal (“Merchant”, “You” or “Your”) and Walmart.com USA, LLC d/b/a JoyRun ("JoyRun”"). Merchant and JoyRun are individually referred to as a “Party” and collectively as the “Parties.”

BY (1) EXECUTING A MERCHANT ORDER INFORMATION FORM, OR (2) BY CLICKING “I ACCEPT” INDICATING ACCEPTANCE OR THESE TERMS OR BY USING THE JOYRUN SERVICES, INCLUDING THROUGH THE JOYRUN PLATFORM, OR THE JOYRUN API; YOU AGREE THAT YOU HAVE READ AND UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS AS MAY BE AMENDED FROM TIME TO TIME, WITHOUT CHANGE. YOU FURTHER REPRESENT AND WARRANT THAT (A) ALL THE INFORMATION YOU PROVIDE AS PART OF THE REGISTRATION PROCESS WILL BE ACCURATE AND COMPLETE AND (B) IF YOU ARE EXECUTING THESE TERMS ON BEHALF OF AN ENTITY, YOU HAVE THE REQUISITE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TERMS ON BEHALF OF THE ENTITY YOU REGISTER AS MERCHANT.

Section 1. Definitions. The definitions for some of the defined terms used in these Terms are set forth here. The definitions for other defined terms are set forth elsewhere in these Terms.

“Applicable Laws” means all applicable federal, state, local laws and regulations, including but not limited to, marketing, consumer and product safety, health (including Proposition 65 in California), food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), and food safety and sanitation, product testing, labeling, pricing, privacy, data security laws, regulations, and guidelines.
“JoyRun Commission” means the commission fees indicated on the Merchant Order Information Form or JoyRun Merchant Registration Platform for each Customer Order.
“Customer” means a party that submits an Order for Merchant Products through the JoyRun Platform.
“Data” means data collected by or through the JoyRun Platform, including, without limitation the PII of Customers.
“JoyRun” means the operating division of WALMART.com USA LLC responsible for providing the JoyRun Services.
“JoyRun API” means the JoyRun application programming interface (API) that allows Merchant to exchange information with JoyRun.
“JoyRun Delivery Services” means the services which allow Customers to view and search Merchant Content and place an Order for Merchant Products via the JoyRun Platform for delivery to the Customer.
“JoyRun Platform” or “Platform” means the JoyRun platform provided by JoyRun, accessible at https://www.joyrun.com, through which Merchant and Customers may access JoyRun Services, including online ordering and other JoyRun Services.
“JoyRun Services” or “Services” means JoyRun Platform, JoyRun API and the JoyRun Pickup Services.
“JoyRun Pickup Services” means the services which allow Customers to view and search Merchant Content and place an Order for Merchant Products via the JoyRun Platform for pickup by the Customer.
“Merchant Content” means any content Merchant submits to JoyRun through the JoyRun Platform, including, without limitation, the Merchant Product information.
“Merchant Marks” means all trademarks, service marks, logos, and other distinctive brand features that are contained in the Merchant Content.
“Merchant Order Information Form” means the information gathered on the Merchant registration portal or the Merchant Order Information Form.
“Merchant Products” includes all products offered by Merchant in connection with the JoyRun Services.
“Order” means an order submitted by Customers through JoyRun via the Platform.
“Personally Identifiable Information” or “PII” means any piece of information which can be used to uniquely identify, contact, or locate a single person, or can be used with other sources to uniquely identify a single person.
“Tablet Subscription Fee” means the subscription fee indicated on the Merchant Order Information Form or the JoyRun Merchant Registration Platform for each tablet or other mobile device provided to Merchant.
“User” means an employee or agent of Merchant who accesses and uses the JoyRun Services in accordance with these Terms.

Section 2. JoyRun Services; Licenses to Merchant Content; Restrictions on Use; Additional Services Terms.

Right to Access the JoyRun Services. Subject to these Terms, JoyRun grants to Merchant during the Term a limited, non exclusive, non-assignable, non-transferable, non-sublicensable, revocable right to access and use the JoyRun Services. Merchant shall be responsible for any and all acts or omissions of Users. Notwithstanding the foregoing, Merchant’s license to use the JoyRun API is solely to transmit Merchant Content to facilitate the JoyRun Services. JoyRun reserves the right to change the availability of any feature, function, or content relating to the Services, at any time, without notice or liability.
Data. Subject to JoyRun’s ownership of Data as set forth in Section 5, JoyRun hereby grants to Merchant a limited right to use such Data solely in connection with the receipt of JoyRun Services and for no other purpose. Merchant must not reconfigure, de-identify, or aggregate Data.
Merchant Content and Text Messages. In order to list Merchant Products in connection with the JoyRun Services, You must provide all requested Merchant Content. You must also provide JoyRun with all warnings or disclaimers required to be posted with respect to the Merchant Products. If the Merchant Product fits into a category that is subject to specific product guidelines, You may be required to provide additional Merchant Content for those types of products. Additionally, Merchant Content provided by you to JoyRun for the JoyRun Services must be of at least the same level of quality as the highest quality information displayed or used on the Merchant website or any other online sales channel for Merchant’s Products and provides users of the JoyRun Services with at least as much product information, images and other content as the information provided on the Merchant website or any other online sales channel for Merchant’s Products. Merchant agrees to receive automated text messages regarding the status of JoyRun Orders at the phone number Merchant provides during the merchant registration process. Message and data rates may apply.
JoyRun Tablet. In exchange for the Tablet Subscription Fees, JoyRun will provide one or more tablets or other mobile devices (“JoyRun Tablet”) for Merchant to use in connection with the JoyRun Services. The JoyRun Tablet(s) will at all times remain the property of JoyRun. Upon termination of these Terms, Merchant will return the JoyRun Tablet(s) to JoyRun within fourteen (14) days. Merchant agrees that the loss or theft of a JoyRun Tablet, any damage to a JoyRun Tablet (outside of normal wear and tear), or failure to timely return a JoyRun Tablet, may result in a fee (“Damage Fee”). The Damage Fee will be deducted from any Payments to Merchant by JoyRun.
License Grants to Merchant Content and Merchant Marks.
1. Subject to these Terms, Merchant grants to JoyRun during the Term:
  1. non exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, modify, translate, render into an audible and/or visual format, publicly-display, and publicly-perform Merchant Content, in whole or in part, through the Platform and in connection with any JoyRun Services that JoyRun performs for Merchant pursuant these Terms. JoyRun’s license to modify Merchant Content is limited to modifying it to fit the format of the Platform and in connection with its provision of JoyRun Services; and
  2. a non exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, render into an audible and/or visual format, publicly-display, and publicly-perform the Merchant Marks in any and all media now known or hereafter devised: (1) in connection with the presentation, marketing, advertising, and/or promotion of the Merchant; (2) in connection with JoyRun’s performance of any JoyRun Services; and (3) in connection with the marketing, advertising, and promotion of JoyRun and the JoyRun Platform and JoyRun Services. All goodwill generated by JoyRun’s use of the Merchant Marks as set forth herein shall inure to the benefit of Merchant.
2. JoyRun shall have the right to sublicense the rights and licenses set forth in Section 2(e) to any subcontractors performing services on JoyRun’s behalf; and (ii) in connection with any derivative site or distribution arrangement concerning the JoyRun Platform, including, without limitation, co-branded versions of the JoyRun Platform and/or JoyRun code embeddable on third-party sites. All sublicenses granted pursuant to this Section will be subject to the same restrictions that apply to JoyRun with respect to the use of Merchant Content and the Merchant Marks.
Restrictions on Use. Merchant will not (and will not permit any third party to) make any use or disclosure of the JoyRun Platform, JoyRun API or the Data that is not expressly permitted under these Terms. Without limiting the foregoing, Merchant will not (and will not permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the JoyRun Platform or the JoyRun API; (ii) modify, adapt, translate, or reproduce the JoyRun Platform or the JoyRun API; (iii) resell, distribute, or sublicense the JoyRun Platform or the JoyRun API; (iv) make the JoyRun Platform or the JoyRun API available on a “service bureau” basis, or otherwise allow any third party (other than Users) to use or access the Platform or the JoyRun API; (v) remove or modify any proprietary marking or restrictive legends placed on the JoyRun Platform or the JoyRun API; (vi) use the JoyRun Platform, the JoyRun API or the Data in violation of any applicable law or regulation or for any purpose not specifically permitted in these Terms; or (vii) introduce into the JoyRun Platform or the JoyRun API any software, virus, worm, “back door,” Trojan Horse, or similar harmful code.
Merchant Products and Food Safety.
1. Merchant shall be responsible for ensuring compliance with all Applicable Laws and legal requirements including adherence to food safety laws and regulations governing their business and operations.
2. Merchant shall be responsible for obtaining and maintaining applicable licenses and/or permits to operate merchant business including licenses required to process, prepare, serve, and/or distribute food and beverage products.
3. Merchant shall ensure food employees meet any regulatory and/or licensing or permitting requirements, including those related to food handling permits and/or food manager certifications.
4. Merchant shall be responsible for ensuring the following in connection with Merchant Products:
  1. Products and ingredients are sourced, stored, processed, packaged, and/or dispensed in a manner to ensure food safety and adherence to applicable regulatory requirements;
  2. Products are maintained under proper temperature control until pickup by the Customer or delivery person;
  3. Products are packaged in a manner to prevent cross contamination and maintain food security, during the JoyRun Services;
  4. Products are labeled as appropriate to ensure adherence to regulatory requirements and applicable consumer awareness and safe handling.
  5. Merchant shall be responsible for providing applicable updated and accurate label information (including nutritional content, product ingredients and allergens, etc.) for display on the JoyRun Platform.
  6. Merchant shall ensure applicable food employees are properly trained on preparing, handling, packaging, and/or dispensing Orders.
Customer Service, Complaints and Refunds. Merchant shall be responsible for responding to and appropriately resolving Customer-related complaints or inquiries related to the Merchant Products sold (unless complaint or inquiry is specific to the delivery experience). Merchant represents and warrants it shall promptly forward to JoyRun any complaints, and any follow-up inquiries, written or oral, made by Customers to Merchant, except for complaints regarding the Merchant Products that do not relate to the JoyRun Services. JoyRun is responsible for Customer support issues related to the ordering of Merchant Products and issues relating to a Customer’s account, as set forth at the JoyRun Terms of Use. Merchant is responsible for all other Customer issues or complaints. JoyRun may, in its sole discretion, issue a refund, credit or re-order for a Customer Order and Merchant will prepare the Merchant Product to the same specifications as the original Customer Order and is responsible for the full cost of that refund, credit or re-order.
Prohibited Merchant Products. Merchant shall ensure the below items are excluded from the JoyRun Services offering:
1. Live animals of any size;
2. Any items for which JoyRun does not have the legal right to offer for sale in this manner under applicable local law;
3. Alcohol beverages of any kind;
4. Tobacco and/or related products and accessories.
5. Merchant Products that were adulterated, recalled, misbranded, and/or otherwise rendered unfit for human consumption.
Merchant Obligations. Merchant agrees to the following obligations as part of the JoyRun Services under these Terms:
1. Provide JoyRun with Merchant Content, including Merchant’s menu (take-out) with prices for each Merchant Product on the menu;
2. Update Merchant Content, including the menu and Merchant information, on the JoyRun Platform to reflect current information (e.g. Merchant hours of operation, Merchant locations);
3. Correct any Merchant Content immediately in the case of errors;
4. Notify JoyRun if unable to safely prepare and/or package Merchant Products for Customers;
5. Accept all Customer Orders placed through the JoyRun Platform from Merchant’s then-current menu;
6. Follow JoyRun’s then current process for confirming Customer Orders from the JoyRun Platform;
7. Prepare all Merchant Products for each Customer Order for the time designated on the Customer Order and fulfill Customer Orders in the order in which they are received.
No Business Expectation. JoyRun has no obligation and makes no promises to amount of Merchant Products ordered by customers through the JoyRun Services, and JoyRun shall not be liable for any act or expenditure (including but not limited to expenditures for equipment, labor, materials, packaging or capital expenditures) by Merchant in reliance on them.

Section 3. Fees; Payment; Taxes; and Refunds.

Payment Process. The JoyRun Services utilize a third-party payment processor (“Payment Processor”), designated by JoyRun, for payment processing. Merchant understands and agrees that Merchant may be required to establish an account with the Payment Processor and consent to any terms and conditions required by the Payment Processor before being permitted to use the JoyRun Services under these Terms.
JoyRun Services Fees and Commissions. Payments for Orders will be processed by the Payment Processor and the Payment Processor will remit such payments to JoyRun, minus the Payment Processor’s processing fees and applicable credit card fees. JoyRun will then deduct the applicable Commissions and Tablet Subscription fees before remitting any payments to the Merchant.
Taxes. All fees payable by Merchant under these Terms are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on such amounts (“Taxes”). JoyRun shall be responsible for any taxes imposed on, or with respect to, JoyRun’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.
1. Upon notice to Merchant, JoyRun may collect applicable Taxes on Merchant’s behalf for Customer Orders and Merchant agrees to such collection by JoyRun. Regardless of whether JoyRun collects such Taxes, JoyRun will publish a statement on the JoyRun Platform generally stating that Merchant is the vendor/seller/retailer of record, and is responsible for collection and remittance of any applicable taxes. Merchant shall be solely responsible for determining whether it must remit taxes to various governmental agencies. Merchant is solely responsible for the refunding of over-collected tax to Customers and for payment of under-collected tax to taxing jurisdictions.
2. If Merchant includes any applicable taxes in the purchase price instead of collecting the taxes separately, it shall clearly state in any sales documentation provided to the Customer that such tax has been included in the purchase price. Merchant is liable for any taxes, penalties and interest, including without limitation, if the inclusion of tax in the purchase price violates Applicable Laws.
Payments to Merchant. Payments due to Merchant under these Terms will be made as indicated on the Merchant Order Information Form or the JoyRun Merchant Registration Portal. Payments will be sent to Merchant at the bank account information entered by Merchant on the JoyRun Platform.
Charge Backs; Returns. Merchant is the merchant of record and shall bear the risk of any and all fraud, including credit card fraud, with respect to any Order made on or through the JoyRun Service.. Merchant shall be responsible for the costs of all returns, product disposal or recycling.

Section 4. Term; Termination; and Suspension.

Term. These Terms shall commence on the Effective Date and continue until terminated by either Party in accordance with Section 4(b) below (the “Term”). These Terms will not become effective as to JoyRun until (A) both Parties have executed the Merchant Order Information Form or (B) JoyRun notifies you in writing (email shall suffice) that you have been approved as a Merchant for the JoyRun Services. If JoyRun has notified you in writing that you have been approved as a Merchant, then these Terms will become effective as to both JoyRun and Merchant on the date you click or clicked “I ACCEPT” and such action by you shall be execution of these Terms by, and the same as, your physical signature on these Terms. If JoyRun does not approve you as a merchant in writing after you have clicked “I ACCEPT”, then these Terms will be considered null and void ab initio and will be of no force and effect.
Termination and Suspension. Either Party may terminate these Terms: (i) for a material breach by the other Party where such breach is not cured within five (5) days of written notice of such breach; and (ii) any time, for any reason, upon seven (7) days prior notice to the other Party (without penalty or liability). JoyRun may suspend access to the JoyRun Platform or remove some or all of Merchant Content in JoyRun’s sole discretion, if JoyRun reasonably believes that Merchant, Users, or any third party is engaged in: (i) any activity that may harm JoyRun, its systems, or any third-party systems; or (ii) fraudulent or illegal activity or any other activity that could result in legal liability to JoyRun or any third party. Any such suspension may continue until the activity causing the suspension has been cured and JoyRun has received satisfactory assurances from Merchant regarding remedial measures related to such activity.
Effect of Termination. Upon termination of these Terms all rights and licenses granted hereunder will immediately cease, and Merchant will immediately cease all access to and use of the JoyRun Services.

Section 5. Ownership.

Intellectual Property. JoyRun owns and shall own all right, title, and interest in and to the JoyRun Platform and the JoyRun API, including all source code, object code, operating instructions, and interfaces developed for or relating to the JoyRun Platform and/or the JoyRun API, together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, and derivative works thereto, including all copyrights and other intellectual property rights relating thereto (the “JoyRun Intellectual Property”). Merchant will have no rights with respect to the JoyRun Intellectual Property other than those expressly granted hereunder. In addition, JoyRun shall own all Data.
Merchant Content and Merchant Marks. Merchant owns and shall own all right, title, and interest in and to Merchant Content and the Merchant Marks, including all copyrights and other intellectual property rights relating thereto (the “Merchant Intellectual Property”). JoyRun will have no rights with respect to the Merchant Intellectual Property other than those expressly granted hereunder.

Section 6. Representations and Warranties; and Disclaimer.

Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the full right, power, and authority to enter into these Terms, to discharge its obligations hereunder, and to grant the licenses granted hereunder; (ii) it shall comply with all Applicable Laws in the conduct of its business and in the performance of its obligations under these Terms, including, without limitation, laws relating to advertising, the Internet, privacy, promotions, and unfair business practices; and (iii) the execution and delivery of these Terms by it and the performance of its obligations hereunder are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon it, including, with respect to Merchant, any franchise agreement.
Additional Representations, Warranties, and Covenants of Merchant. In addition to the representations and warranties set forth in Section 6(a), Merchant represents, warrants, and covenants that, to the extent applicable to the JoyRun Service: (i) it will comply with all Applicable Laws; (ii) it has informed JoyRun of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant Product(s) and it will inform JoyRun of any such warnings, charges, opt-ins, and instructions that become required in the future; (iii) it will disclose common allergens in any Merchant’s menu items listed on the JoyRun Platform; (iv) it will only list menu items or products for sale, product descriptions, and prices on the JoyRun Platform; (v) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Merchant’s menus on the JoyRun Platform without written permission in writing from JoyRun and ensuring compliance with all Applicable Laws related to sale of such products; (vi) it will comply with any guidelines JoyRun publishes that govern any Merchant Content on the JoyRun Platform; (vii) it shall timely and properly process all Orders and make them available to Customers, and the timeliness, quality, and other characteristics of the Orders shall be as favorable as those extended to its other customers not using the JoyRun Platform; (viii) for any Orders Merchant shall package the Order appropriately for pickup by the and use commercially reasonable efforts to ensure that such Order is available for pickup upon arrival; (ix) Merchant Content and the Merchant Marks and JoyRun’s exercise of any license granted hereunder, do not and will not, infringe the rights of any third party, including, without limitation, any intellectual property rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, moral rights, rights of attribution, or any other rights of third parties not specifically identified in these Terms; and (x) Merchant has acquired all third-party clearances, permissions, and licenses which are necessary in connection with JoyRun’s use of Merchant Content and the Merchant Marks and/or JoyRun’s exercise of any license granted hereunder.
Disclaimer. JOYRUN CANNOT GUARANTEE THAT THE JOYRUN PLATFORM OR THE JOYRUN API WILL BE AVAILABLE AT ALL TIMES, OR THAT EVERY ERROR IN THE JOYRUN PLATFORM OR PROBLEM RAISED BY MERCHANT WILL BE RESOLVED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6(a), THE JOYRUN PLATFORM, THE JOYRUN API, AND THEIR COMPONENTS, AND ANY OTHER MATERIALS PROVIDED BY JOYRUN HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” JOYRUN MAKES NO GUARANTEE REGARDING THE LEVEL OF REVENUE MERCHANT MAY EARN THROUGH THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6(a), JOYRUN MAKES NO WARRANTY WITH RESPECT TO THE JOYRUN PLATFORM, THE JOYRUN API, THE DATA OR OTHERWISE IN CONNECTION WITH THESE TERMS AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TO THE EXTENT THAT A PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

Section 7. Limitation of Liability. EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF APPLICABLE LAW OR WILLFUL MISCONDUCT, UNPAID AMOUNTS OWED TO JOYRUN BY MERCHANT IN EXCESS OF THE BELOW LIMIT AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 8 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THESE TERMS, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THESE TERMS SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

Section 8. Indemnification. Each Party shall indemnify, defend, and hold harmless the other Party, and the other Party’s officers, directors, employees, attorneys, and agents (collectively, the “Indemnified Parties”) from and against any and all losses, liabilities, damages, fines, and all related costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties (collectively, “Losses”) incurred by such Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from, relating to, or alleging that the Party has breached any of its obligations or the other Party’s rights set forth in Section 5, Section 6 and Section 9 of these Terms. In addition, Merchant shall indemnify, defend, and hold harmless the JoyRun Indemnified Parties from and against any and all Losses incurred by such JoyRun Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from or relating to: (i) any violation or alleged violation of any Applicable Laws, including but not limited to, any applicable retail food or other health and safety code, rule, or regulation related to Merchant Product(s), or to any of its components or ingredients or to its preparation, labeling, description, use or sale; (ii) death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to result in whole or in part from any actual or alleged use of or latent or patent defect in, the Merchant Product, including but not limited to: (x) any actual or alleged failure to provide adequate warnings, labeling or instructions; or (y) any actual or alleged improper preparation of the Merchant Product; or (iii) any act, activity or omission Merchant or any of its employees, representatives or agents, including but not limited to activities Merchant’s premises and the use of any equipment, fixture or material of Merchant in connection with any Order. In each case the Indemnified Party shall provide the indemnifying party (“Indemnifying Party”) with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent.

Section 9. Confidentiality.

Confidential Information. The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a Party (“Disclosing Party”) provided to the other Party (“Receiving Party”) in connection with these Terms, whether orally or in physical form, and shall include the terms and conditions of these Terms. Without limiting the foregoing, Data is the Confidential Information of JoyRun.
Exclusions. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed to the Receiving Party in connection with these Terms; (ii) is or becomes part of the public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
Confidentiality Obligation. The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with these Terms; (ii) except subject to its compliance with Section 9(d), not disclose or permit access to Confidential Information other than to its affiliates or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with these Terms, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care.
Compelled Disclosure. If the Receiving Party is compelled by applicable law or order of any court to disclose any Confidential Information then, to the extent permitted by applicable law or order of any court, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole expense, in opposing or seeking protective limitations on disclosure.

Section 10. Publicity. During the Term, JoyRun shall have the right, but not the obligation, to publicly announce in any and all media, including on the JoyRun Platform and through social media, that Merchant is a client of JoyRun and a user of the JoyRun Platform. In addition, upon the reasonable request of JoyRun, the Parties shall jointly issue at least one (1) press release (or more, if mutually agreed by the Parties) announcing their relationship. The specific timing and content of each such press release shall be mutually determined by the Parties. In conjunction with the initial press release, Merchant, if requested by JoyRun, shall make one (1) or more representatives available for a strategic press interview.

Section 11. Insurance. During the Term of these Terms and for a period of at least one year following termination, Merchant shall maintain insurance of the type and in amounts as is commonly maintained by similar businesses within Merchant’s area and type of business. In no event shall such insurance be less than the minimum types and amounts as required by law or statute applicable to the Merchant. To the extent Merchant maintains commercial general liability and/or product liability insurance, JoyRun shall be included as additional insured and such policy shall apply as primary and non-contributory with respect to any other insurance or self-insurance available to JoyRun.

Section 12. Choice of Law and Jurisdiction. These Terms are entered into in the State of Arkansas and shall be governed by and construed in accordance with the domestic laws of the State of Arkansas, without giving effect to its principles of conflicts of laws. Any litigation based hereon, or arising out of or in connection with a default by either Party in the performance of its obligations hereunder, shall be brought and maintained and adjudicated exclusively in the Federal or State courts located in Benton, County, Arkansas. Notwithstanding the foregoing, JoyRun may bring an action for injunctive relief in any court of competent jurisdiction.

Section 13. Modifications. JoyRun reserves the right, at its sole discretion, to change, suspend, or discontinue the JoyRun Services (including without limitation, the availability of any feature or content) at any time. JoyRun may, at its sole discretion, remove Merchant Products from the JoyRun Platform if JoyRun determines that such Merchant Product could subject JoyRun to undue regulatory risk, health and safety risk, or other liability. JoyRun also may revise these Terms from time to time. JoyRun will notify Merchants of material revisions via a service notification or an email to the email address associated with the Merchant’s JoyRun account. By continuing to access or use the JoyRun Services after those revisions become effective, Merchant agrees to be bound by the revised terms and conditions.

Section 14. Relationship of Parties. The Parties are independent contractors, and nothing in these Terms creates an employer-employee relationship, a partnership, joint venture, or other relationship between the Parties. Neither Party has authority to assume or create obligations of any kind on the other’s behalf. Each Party has exclusive control over its personnel and over its labor and employee relations and its policies relating to wages, hours, working conditions and other employment conditions. Each Party is solely responsible for all salaries and other compensation of its personnel and for making all deductions and withholdings from its employees’ salaries and other compensation and paying all contributions, taxes, and assessments. Neither Party has any authority to bind the other Party to any agreement or obligation.

Section 15. Miscellaneous Provisions. The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable. These Terms are not assignable, transferable, or sub-licensable by Merchant, except with JoyRun’s prior written consent. The rights and obligations set forth in these Terms, which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of these Terms shall so survive and extend. Both Parties agree that these Terms are the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of these Terms. Any modification to these Terms must be in a writing signed by both Parties or in a writing acknowledged and accepted by both Parties (e.g., an e-mail or a click-through modification); provided, however, that JoyRun may modify these Terms at any time as provided for in Section 13. All notices, requests, consents and other communications under the Parties' agreements must be in writing, and delivered by overnight courier to the addresses (i) if Merchant, provided on the merchant registration process; and (ii) if to JoyRun, to : Walmart .com USA, LLC, 850 Cherry Avenue, San Bruno, CA 94066 with a copy to the Attn: Legal Department (or any updated address properly noticed hereunder).

Section 16. Text Messaging.

By providing your phone number, you are enrolling in the JoyRun Merchant Operations text message program (the “JoyRun Merchant Operations Program”) and agreeing to the following terms and conditions: When you enroll, you certify that A) you are the account holder and consent to enroll or have account holder's consent to enroll and B) you are age 18 or older. The JoyRun Merchant Operations Program is an automated, multiple message program that delivers information regarding merchant changes and updates for the JoyRun app. There is no charge from JoyRun for this service, but YOUR SERVICE PROVIDER'S MESSAGE AND DATA RATES MAY APPLY. For help on this specific program or to opt-out, email joyrun-support@customercare.walmart.com or you can contact us at Walmart.com; 850 Cherry Ave., San Bruno, CA 94066. Participating carriers include all US-based mobile carriers. JoyRun and carriers are not liable for delayed or undelivered messages. The JoyRun Merchant Operations Program is not compatible with all cell phone models.

Mobile Phone Verification:

By providing your phone number, you are enrolling in the JoyRun Mobile Phone Verification text message program (the “JoyRun Mobile Verification Program”) and agreeing to the following terms and conditions: When you enroll, you certify that A) you are the account holder and consent to enroll or have the account holder's consent to enroll and B) you are age 18 or older. The JoyRun Mobile Phone Verification Program is an automated, on-demand, single message text program. When you provide your phone number you will receive a single text message with a verification code. There is no charge from JoyRun for this service, but YOUR SERVICE PROVIDER'S MESSAGE AND DATA RATES MAY APPLY. For help, text HELP to +1-901-441-9123 or contact us at Walmart.com; 850 Cherry Ave., San Bruno, CA 94066. Participating carriers include all US-based mobile carriers. JoyRun and carriers are not liable for delayed or undelivered messages. The JoyRun Mobile Verification Program is not compatible with all cell phone models.

These Terms & Conditions were last upated on April 16, 2021.