Last Updated: April 18, 2016
This Subscription Agreement (“Agreement”) is by and between Wellspring Worldwide, Inc., (“Company”, “we”, “our”, or “us”) and you (“you” or “Customer”) to establish the terms and conditions pursuant to which we will provide the Services (defined below).
BY ACCEPTING THIS AGREEMENT, WHETHER BY CLICKING A BOX INDICATING ACCEPTANCE, BY EXECUTING AN ORDER FORM REFERENCING THIS AGREEMENT, OR OTHERWISE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION, GOVERNMENTAL ORGANIZATION, PARTNERSHIP OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO ITS TERMS. IN SUCH CASES, ALL REFERENCES TO THE TERM “YOU” IN THE REMAINDER OF THIS AGREEMENT SHALL BE DEEMED TO BE REFERENCES TO SUCH ENTITY.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE WILL NOT AND DO NOT GRANT YOU ANY RIGHTS TO ACCESS OR USE THE SERVICES DESCRIBED HEREIN.
Please click here to view a printable version of this Agreement.
You agree as follows:
1. Scope. This Agreement applies to your access to, and use of, those online and offline products and services ordered by you (“Services”), including the provision of access over the Internet to our proprietary software (the “Software Service”), whether in connection with Free Trial, through our online ordering process, or through a separate a ordering document specifying the Services to be provided hereunder (each an “Order”). Each Order is incorporated into this Agreement by reference. In the event that you have entered into a separate written agreement with us governing your access to and use of the Services, such separate agreement shall control to the extent of any conflict with this Agreement. We do not accept, and hereby reject, any inconsistent or additional terms on any purchase order, order confirmation or similar document issued by you.
2.1 License. Subject to the terms and conditions of this Agreement, including the number of Authorized Users (defined below) set forth in the Order, we hereby grant you a personal, limited, revocable, non-exclusive and non-transferable license to access and use the Services strictly for your own business or research purposes. This license is exclusive to you and you may not sublicense the use of the Services except to your Authorized Users. This license shall not be construed or interpreted as granting or providing rights to you or any other party to use, reproduce, modify, distribute, perform, display, possess or control the source code or any other aspect of the Services. You may not remove or modify any notice of confidentiality, trade secret, trademark or copyright encoded or embodied in the Services.
2.2 Access and Authorized Users. You are responsible for the acts and omissions of each person authorized by you to access or use the Services (each an “Authorized User”). You will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify us promptly of any such unauthorized use. You are responsible for maintaining the confidentiality of all Authorized Users’ usernames and passwords, and are solely responsible for all activities that occur under these usernames. We reserve the right to terminate any Authorized User account which we reasonably determine has been used by an unauthorized third party or by any individual other than the Authorized User to whom such username and password was originally assigned.
2.4 Proprietary Rights; Restrictions on Use. The Services (including the Software Service and the software made available for use in connection with the Software Service), the look and feel and layout of any deliverables generated in connection with the Services, and all worldwide intellectual property rights therein, are the exclusive property of Company and its licensors. All rights in and to the Services not expressly granted in this Agreement are reserved by Company. Except as expressly permitted in this Agreement or as otherwise authorized by Company in writing, you will not, and will not permit any Authorized User to (a) modify, adapt, alter, translate, or create derivative works from the Service; (b) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the Services to any third party, (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Service; (d) interfere in any manner with the operation of the Service; (e) remove, alter, or obscure any proprietary notices (including copyright notices) of Company or its licensors displayed in connection with the Service; or (f) otherwise use the Services except as expressly allowed under this Agreement.
2.5 Free Trials. We may offer the Services, or a portion thereof, on a trial basis (each a “Trial”). If you register for a Trial, we will make the applicable portions of the Services available to you without charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Services, or (b) the start date of any purchased subscriptions ordered for such Services. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, DURING THE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES OR INDEMNITIES OF ANY KIND.
3. Fees and Payment. You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms set forth in your Order, and if not such terms are set forth in your Order, you shall pay the fees charges in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. We will invoice you for all fees or may directly bill your credit card. Unless we charges your credit card directly, you will pay all fees hereunder within thirty (30) days after your receipt of the applicable invoice. We reserve the right (in addition to any other rights or remedies we may have) to discontinue the Services and suspend all access to the Services if any fees are more than ten (10) days overdue until such amounts are paid in full. All payments must be made in U.S. dollars. Outstanding balances shall accrue interest at a rate equal to the lesser of one and one half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus our reasonable costs of collection. All fees due hereunder are exclusive of, and you shall pay, all sales, use and other taxes, export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement, except for taxes based upon our net income.
3.1 Term and Termination. The term of this Agreement will begin on the Effective Date and will continue for the period of time set forth on your Order, after which it shall automatically continue to renew for successive periods equal to the period set forth on your Order (the “Term”). Either party may terminate this Agreement if the other party breaches any material provision of this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof.
4. Suspension. We reserve the right, in our reasonable discretion, to temporarily suspend your access to and use of the Services: (a) during planned downtime for upgrades and maintenance to the Services; (b) during any unavailability caused by circumstances beyond our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; (c) if we suspect or detect any malicious software connected to your use of the Services or (d) if we reasonably believe you or your agents, Authorized Users, or representatives have violated this Agreement.
5. Warranty; Disclaimer.
5.1 Performance. During the Term, we warrant that we will, (a) perform the Services substantially in accordance with this Agreement and any documentation provided by us; and (b) provide the Services in a manner consistent with generally accepted industry standards. You must notify us of any warranty deficiencies within thirty (30) days from performance of the relevant Services in order to receive warranty remedies. For any breach of this warranty, your exclusive remedy shall be the re-performance of the deficient Services. If we cannot re-perform such deficient Services as warranted, you shall be entitled to terminate this Agreement and recover the fees prepaid by you for the Services for the period falling beyond the effective date of such Termination.
5.2 Disclaimers. THE EXPRESS WARRANTIES IN SECTION 6.1 ARE IN LIEU OF, AND WE HEREBY DISCLAIM, ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY REGARDING THE SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN SECTION 6.1, ACCESS TO THE SERVICES IS PROVIDED “AS IS” WITH ALL FAULTS.
6. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO COMPANY UNDER THE ORDER GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
7.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information; and (b) not to use (except as expressly permitted in this Agreement) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five (5) years following the termination of the Agreement or any Confidential Information that the Receiving Party can document (i) is or becomes generally available to the public; or (ii) was in its possession or known by its prior to receipt from the Disclosing Party; or (iii) was rightfully disclosed to it by a third party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party; or (iv) is required by law. Receiving Party acknowledges that a breach or threatened breach of this Section would cause irreparable harm to the other party, the extent of which would be difficult to ascertain. In addition to any other remedies to which Disclosing Party may be legally entitled, Disclosing Party shall have the right to seek immediate injunctive or other equitable relief in the event of a breach of this Section by the other party or any of its employees or agents.
8.1 By Company. We will defend at our expense any suit brought against you, and will pay any settlement we make or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that our Software Service misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any United States copyright. If any portion of the Software Service becomes, or in our opinion is likely to become, the subject of a claim of infringement, we may, at our option: (a) procure for you the right to continue using the Software Service; (b) replace the Software Service with non-infringing services which do not materially impair the functionality of the Software Service; (c) modify the Software Service so that it becomes non-infringing; or (d) terminate the Software Service and refund any pre-paid fees actually paid by you to us for the remainder of the Term then in effect, and upon such termination, you will immediately cease all use of the Software Service. Notwithstanding the foregoing, we shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Software Service not in accordance with this Agreement; (x) any content or material submitted by you in connection with the Software Service; (y) any use of the Software Service in combination with other products, equipment, software or Content not supplied by us; or (z) any modification of the Software Service by any person other than us our authorized agents. This subsection states your sole and exclusive remedy for infringement claims and actions.
8.2 By You. You will defend at your expense any suit brought against us and will pay any costs, expenses (including attorney’s fees), damages and other losses suffered by us in connection therewith insofar as such suit is based on a claim by any third party based upon, resulting from or related to (a) any improper or unauthorized use of the Services by you or your Authorized Users, (b) any improper or unauthorized use of an Authorized User’s account or (c) any content or materials provided by you or your Authorized Users in connection with the Services.
8.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit
9.1 Non-Exclusive. This Agreement shall not be construed to limit or prohibit us in any manner or fashion from providing products and/or services of any type of nature including those identical to the Services to any other customer in its sole discretion.
9.2 Assignment. Neither party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including the license rights granted to you to access the Service) to any third party without the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, we may assign its rights and obligations under this Agreement to a parent, affiliate, or subsidiary, or to a successor, whether by way of merger, sale of all or substantially all of its assets or otherwise. Any attempted assignment of this Agreement not in accordance with this subsection shall be null and void.
9.3 Relationship of Parties. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.
9.4 Force Majeure. Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond the reasonable control of such party.
9.5 Notices. All notices, consents, and approvals under this Agreement may be delivered by us to you to the email address you’ve provided to us. All notices, consents, and approvals under this Agreement must be delivered by you to us.
9.6 Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the laws of Colorado, without reference to its choice of laws rules.
9.7 Publicity. You hereby grant us the limited right to use your name, logos, and trademarks in marketing and publicity materials listing you as our customer.
9.8 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9.9 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
9.10 Entire Agreement. This Agreement (including all exhibits and attachments) constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral regarding such subject matter.