THIS AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF THE WINQ SERVICE. BY REGISTERING FOR THE SERVICE, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL SIGNING THE ORDER FORM FOR CUSTOMER IS SIGNING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY.
SCOPE OF AGREEMENT. This Master Subscription Agreement (this “Agreement”) governs Re:Group’d Media, Inc. d/b/a Winq’s (“Company”) provision of the Winq service to the entity entering into this Agreement (“Customer”) (the “Service”).
Grant. Subject to the terms and conditions of this Agreement, Company hereby grants to Customer a nonexclusive and nontransferable right and license during the Term (defined below) to allow Customer’s employees (“Authorized Users”) to access and use the Service for the purpose of generating and reviewing the results of end user polls. Customer will not permit access to the Service by any person other than an Authorized User.
Restrictions on Use of Services. The Service is provided to Customer for internal use only, and Customer will not make the Service available to any third party. In connection with Customer’s use of the Services, Customer will comply with all applicable laws, rules and regulations. Customer will not, and will not permit any third party to: (i) copy, modify, translate, or create derivative works of the Service; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Service; (iii) lend, lease, offer for sale, sell, resell or otherwise use the Service for the benefit of third parties; (iv) attempt to circumvent any license, timing or use restrictions that are built into the Service or attempt to gain unauthorized access to the Service or their related systems or networks; or (v) interfere with or disrupt the integrity or performance of the Service or any third-party data contained on the Service.
Authorized Users.Customer acknowledges and agrees that it is responsible for all use or misuse of the Service by its Authorized Users, and a breach by any such Authorized User of any term of this Agreement will be deemed a breach under this Agreement. As between the parties, Customer agrees that is responsible for notifying and obtaining the agreement of such Authorized Users to the restrictions with respect to the Service. Company reserves the right to immediately suspend any or all Authorized Users’ access to the Service if Company believes, in its sole discretion, that an Authorized User has misused the Service.
Ownership of Service. Except for the limited rights granted in Section 2(a) above, Company retains all right, title and interest, including all intellectual property rights, in and to the Service. Customer acknowledges that the Service includes Company’s valuable trade secrets and improper use or disclosure would cause Company irreparable harm. Accordingly, Customer agrees to use the Service solely as authorized in this Agreement. Customer further acknowledges that the license granted pursuant to this Agreement is not a sale and does not transfer to Customer title or ownership of the Service or a copy of the Service, but only a right of limited use. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO COMPANY.
Customer Materials. Subject to the terms and conditions of this Agreement, Customer grants to Company a limited, non-transferable (except pursuant to Section 10(a) below) license to use the information, materials and data entered into the Service by Authorized Users (“Materials”) for the purpose of providing the Service. Customer represents and warrants that: (i) it owns the Materials posted by it on or through the Service or otherwise has the right to grant the license set forth in this Section 2(e); (ii) the posting and use of Materials on or through the Service does not violate the intellectual property rights or any other rights of any third party; and (iii) the posting of Materials on the Service does not result in a breach of contract between Customer and any third party. Company may calculate aggregate statistics about its customers’ Materials and use those statistics (but not the underlying Materials) for purposes of sales, marketing, business development, product enhancement, or customer service.
Feedback.From time to time, Customer may provide to Company (either on its own accord or at Company’s request) feedback, analysis, suggestions and comments (including, but not limited to, bug reports and test results, and design suggestions or ideas) related to the Service (collectively, “Feedback”). As between Company and Customer, all right, title and interest in and to any such Feedback will be owned by Company. Customer agrees that Company will have the perpetual, irrevocable and worldwide right to use, modify, license, sublicense and otherwise exploit all or part of the Feedback or any derivative thereof in any manner or media now known or hereafter devised without any remuneration, compensation or credit to Customer.
Fees. Customer will pay Company the monthly fees set forth on the Service (the “Fees”) through the functionality available on the Service, or within 30 days of receipt of an invoice from Company. If Customer pays through the functionality on the Service, then Company will charge Customer’s payment method each month for the Fees until this Agreement is terminated. Fees paid are non-refundable.
Taxes. Customer will be responsible for payment of all sales, use, property, value-added, withholding, or other federal, state or local taxes except for taxes based solely on Company’s net income. If Company is required to pay any such taxes based on the licenses granted in this Agreement or on Customer’s use of the Services, then such taxes will be billed to and paid by Customer.
Confidential Information. “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Materials; Company’s Confidential Information includes the Service; and Confidential Information of each Party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiving Party agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates and their legal counsel and accountants without the other party’s prior written consent.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
TERM AND TERMINATION
Term of Agreement. This Agreement takes effect on the date Customer enters into the Agreement and remains until terminated.
Termination. Either party may terminate this Agreement upon prior written notice to the other party. Termination will take effect at the end of the then-current month for which Fees have been paid.
Effect of Termination. Upon expiration or termination of this Agreement for any reason, the rights, licenses and access to the Service granted to Customer under this Agreement will immediately terminate.
Survival. Sections 2(b), 2(c), 2(d), the last sentence of 2(e), 2(f), 4, 5(c), 5(d), and 6 through 10 will survive any termination or expiration of this Agreement.
REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the right, power and authority to enter this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate or organizational action of the party; (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (e) it will abide by all applicable federal, state and local laws and regulations with respect to online activities, use of end user data and the products and services offered by each party in connection with this Agreement.
WARRANTY DISCLAIMER. THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. AND COMPANY MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE, INCLUDING ITS CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER IMPLIED OR STATUTORY WARRANTIES, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE ABOVE. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICE WILL WORK WITHOUT INTERRUPTIONS.
LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY DURING THE ONE YEAR PERIOD PRECEDING THE CLAIM GIVING RISE TO LIABILITY. EXCEPT FOR A BREACH OF THE LICENSE RESTRICTIONS OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR LOSS OR INTERRUPTION OF USE OF ANY FILES, DATA OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
INDEMNIFICATION. Each party (“Indemnifying Party”) will indemnify, defend and hold the other party (“Indemnified Party”) harmless from any claim, action, suit or proceeding made or brought against the Indemnified Party arising out of or related to the Indemnified Party’s breach of any term of this Agreement.
Assignment. Neither party may assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that Company may assign this Agreement to a parent, affiliate, subsidiary, or successor to its business, if any. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section 10(a) will be null and void.
U.S. Government Rights. Company provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Company to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
Export Regulations. Customer agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Specifically, Customer covenants that it will not -- directly or indirectly -- sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Company under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Customer agrees to indemnify, to the fullest extent permitted by law, Company from and against any fines or penalties that may arise as a result of Customer’s breach of this provision.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement will remain in full force and effect.
Governing Law and Jurisdiction. This Agreement is governed by and construed under the laws of the State of New York without reference to conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in New York, New York, and the parties agree and submit to the exclusive jurisdiction and venue of these courts.
Modification and Waiver. No waiver or modification of this Agreement will be valid unless made in writing and signed by both parties. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof.
Entire Agreement. This Agreement embodies the entire understanding of the parties and supersedes any previous or contemporaneous communications, whether oral or written with respect to Customer’s use of the Service; and may be amended only by a writing signed by both parties.
Notices. Any notice required or permitted under the terms of this Agreement or required by law to be sent to Company must be addressed to firstname.lastname@example.org.
Purchase Orders. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the acquisition or licensing of the Service will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Company to object to such terms, provisions or conditions.