PLEASE READ THESE ENTERPRISE TERMS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY SUBSCRIPT, INC. (“SERVICE PROVIDER”). BY MUTUALLY EXECUTING ONE OR MORE CUSTOMER AGREEMENTS WITH SERVICE PROVIDER WHICH REFERENCE THESE TERMS (EACH, AN “CUSTOMER AGREEMENT”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL CUSTOMER AGREEMENTS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. ANY ONLINE CUSTOMER AGREEMENT WHICH YOU SUBMIT VIA SERVICE PROVIDER’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY SERVICE PROVIDER SHALL BE DEEMED TO BE MUTUALLY EXECUTED.
(a) “Authorized User” means any individual who has been authorized in accordance with the terms of this Agreement to access and use the Enterprise Service by Customer. Authorized Users may include, without limitation, employees and contractors authorized by Customer.
(b) “Enterprise Service” means Service Provider’s enterprise-level SaaS solution described in the Customer agreement.
(c) “Customer agreement” has the meaning set forth in the Preamble of this Agreement.
(d) “Intellectual Property Rights” means patent rights, copyrights, trade secrets, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
(e) “Service Provider Software” means certain proprietary Service Provider software, as described in the Customer agreement, that is necessary for, and supports, the operation of the Enterprise Service.
Subject to Customer’s compliance with the terms and conditions of this Agreement, Service Provider will provide Customer with the Enterprise Service.
3. CUSTOMER OBLIGATIONS
(a) Cooperation and Assistance. Customer will at all times provide Service Provider with good faith cooperation and assistance and make available such information, facilities, equipment and personnel as may be reasonably required by Service Provider in order to provide Customer with the Enterprise Service.
(b) Security. Customer will keep confidential and not disclose to any third parties, and will ensure that all Authorized Users keep confidential and do not disclose to any third parties, any user IDs, account numbers, passwords or other similar information for the Enterprise Service.
(a) Payment Terms. Customer will pay the fees (“Fees”) specified in the Customer agreement. Unless otherwise noted in the Customer agreement, Service Provider will invoice Customer monthly for the Fees due and payable for that month. Customer will pay each such invoice within thirty (30) days following the date thereof.
(b) Taxes. Service Provider will pay all taxes and duties assessed, in connection with services provided under this Agreement, by any authority within or outside of the U.S.
(c) Interest. All amounts not paid when due under this Agreement will accrue interest monthly (without the requirement of a notice) at a rate of 1.5% per month or the highest rate permissible by law, whichever is lower, until the unpaid balance is paid in full.
(a) License to Enterprise Service. Subject to Customer’s compliance with the terms and conditions of this Agreement, Service Provider hereby grants to Customer a non-exclusive license to access and use the Enterprise Services during the Term.
(b) Authorized Users. Customer’s access to and use of the Enterprise Services pursuant to Section 5(a) will be expressly limited to the number of Authorized Users subscribed to in accordance with the Customer agreement. Customer shall not allow access to or use of the Enterprise Services by anyone other than Authorized Users. Customer shall ensure that all Authorized Users comply with the terms and conditions of this Agreement and the Service Provider’s Terms of Service (available at https://www.subscript.com/terms-of-service). Customer shall promptly notify Service Provider of any breach of the terms and conditions of this Agreement or the Terms of Service by any Authorized User. Service Provider may suspend or terminate any Authorized User’s access to the Enterprise Services upon notice to Customer in the event that Service Provider determines that such Authorized User has breached the terms and conditions of this Agreement or the Terms of Service of the Enterprise Services.
(c) Restrictions. Customer will not: (i) sell, resell, rent or lease the Enterprise Service; (ii) reverse engineer the Service Provider Software; (iii) attempt to modify the Service Provider Software; or (iv) use or permit an Authorized User to use the Enterprise Service for any purpose that is unlawful.
(a) Definition. “Confidential Information” means: (i) information that is disclosed in written form and that is clearly labeled as proprietary, confidential or with words of similar meaning; (ii) information that is disclosed orally or visually and that is identified as proprietary or confidential at the time of its disclosure and is summarized in a writing sent by the disclosing party to the other party within thirty (30) days of such disclosure; and (iii) any information that due to its nature or the circumstances of disclosure would reasonably be deemed confidential. The terms and conditions of this Agreement will be deemed the Confidential Information of both parties.
(b) Exclusions. The obligations and restrictions in Section 6(c) will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party prior to the disclosure of such information from the disclosing party; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who had the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
(c) Use and Nondisclosure. During the term of this Agreement and for a period of three (3) years thereafter, each party will not use the other party’s Confidential Information for any purpose other than for the performance and enforcement of this Agreement and will not disclose the other party’s Confidential Information to any party other than to those of its employees and contractors who need to know such Confidential Information for a party’s performance and enforcement of this Agreement; provided that each such employee and contractor is bound by a written agreement that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement. Each party will use the same efforts to protect the confidentiality of the other party’s Confidential Information that it ordinarily uses to protect the confidentiality of its own confidential information of like importance, but in no event less than reasonable efforts.
(d) Permitted Disclosure. The foregoing provision of this Section 6 will not restrict either party from disclosing the other party’s Confidential Information or the terms and conditions of this Agreement: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement; (ii) on a confidential basis to its legal or professional financial advisors; (iii) as required under applicable securities regulations; or (iv) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
7. WARRANTY AND SUPPORT
(a) Limited Warranty. Service Provider warrants to Customer that the Enterprise Service will provide the functionality specified in the Customer agreement. In the event that the Enterprise Service fails to conform to the foregoing warranty, as Customer’s sole and exclusive remedy and Service Provider’s sole and exclusive liability for any breach of such warranty, Service Provider will modify the Enterprise Service to correct the non-conformity.
(b) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7(a), SERVICE PROVIDER DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT AND THE ENTERPRISE SERVICE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. SERVICE PROVIDER DISCLAIMS ANY WARRANTY THAT THE ENTERPRISE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED.
(c) Support. Service Provider will provide Customer and Authorized Users with support for the Enterprise Service in accordance with the terms set forth in the Customer agreement.
(a) Indemnification by Service Provider. Service Provider will defend any action brought against Customer to the extent that it is based upon a third party claim that the Enterprise Service, as provided by Service Provider to Customer pursuant to this Agreement, infringes any U.S. patent or any copyright or misappropriates any trade secret, and will pay costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer, and will indemnify and hold Customer harmless for any costs and expenses incurred by Customer and any damages awarded in final judgment or paid in settlement by Customer with respect to any such claims; provided that Customer: (i) promptly gives Service Provider written notice of the claim; (ii) gives Service Provider sole control of the defense and settlement of the claim (provided that Service Provider may not settle any claim unless the settlement unconditionally releases Customer from all liability); and (iii) provides Service Provider with all information and assistance that is reasonably necessary for the defense and settlement of the claim, at Service Provider’s expense. Customer reserves the right to retain counsel, at Customer’s sole expense, to participate in the defense of any such claim.
(b) Injunctions. In the event that Customer’s rights to use the Enterprise Service hereunder are enjoined, or in Service Provider’ s reasonable opinion are likely to be enjoined, due to the type of claim specified in Section 8(a) above, Service Provider may at its sole option and expense: (i) procure for Customer the right to continue using the Enterprise Service; (ii) replace or modify the Enterprise Service so that it is non-infringing and substantially equivalent in function to the enjoined Enterprise Service; or (iii) if options (i) and (ii) above cannot be accomplished despite Service Provider’ reasonable efforts, then Service Provider may terminate Customer’s rights and Service Provider’s obligations hereunder.
(c) Exclusions. Notwithstanding the terms of Section 8(a) Service Provider will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (i) the combination, operation or use of the Enterprise Service with equipment, devices, software or data not supplied by Service Provider, if a claim would not have occurred but for such combination, operation or use; or (ii) Customer’s use of the Enterprise Service other than in accordance with this Agreement.
(d) Indemnification by Customer. Customer will defend Service Provider against any action or suit brought against Service Provider by a third party in connection with Customer’s use of the Enterprise Service (other than a claim for which Service Provider is responsible under Section 8(a)), and will indemnify and hold Service Provider harmless for any costs and expenses incurred by Service Provider and any damages awarded in final judgment or paid in settlement by Service Provider with respect to any such claim; provided that Service Provider: (i) promptly gives Customer written notice of the claim; (ii) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle any claim unless the settlement unconditionally releases Service Provider from all liability); and (iii) provides Customer with all information and assistance that is reasonably necessary for the defense and settlement of the claim, at Customer’s expense. Service Provider reserves the right to retain counsel, at Service Provider’s sole expense, to participate in the defense of any such claim.
9. LIMITATION OF LIABILITY
(a) Total Liability. IN NO EVENT WILL SERVICE PROVIDER’S TOTAL LIABILITY TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO AND USE OF THE ENTERPRISE SERVICE EXCEED THE TOTAL MONTHLY FEES PAID BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM OR ACTION GIVING RISE TO ANY LIABILITY.
(b) Exclusion of Damages. EXCEPT FOR LIABILITY ARISING FROM OBLIGATIONS OF INDEMNIFICATION; BREACHES OF CONFIDENTIALITY; AND INTENTIONAL OR GROSSLY NEGLIGENT ACTS RESULTING IN DAMAGE OR INJURY TO PROPERTY OR PERSON; A BREACH OF SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
(c) Acknowledgement. The parties acknowledge that the limitations and exclusions contained in this Section 9 and elsewhere in this Agreement have been the subject of negotiation between the parties and represent the parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement and the payments made hereunder. Accordingly, the parties agree that such limitations and exclusions will survive and apply even if any exclusive remedy specified in this Agreement is found to have failed of its essential purpose.
10. TERM AND TERMINATION
(a) Term. This Agreement will commence on the Effective Date and will continue for the initial term specified in the Customer agreement or, if no such term is specified, one (1) year, unless terminated earlier as provided in this Agreement. This Agreement shall automatically renew for subsequent one (1) year terms, unless either party notifies the other in writing of its intent not to renew at least thirty (30) days prior to the end of the then-current term. The initial term and any renewal terms are collectively the “Term”.
(b) Termination for Cause. Either party may terminate this Agreement upon written notice if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days following written notice thereof from the non-breaching party.
(c) Effect of Termination. Upon any expiration or termination of this Agreement: (i) Service Provider will transfer Customer data stored in the Enterprise Service, including data of users of the Web Application, to a data storage facility designated by the Customer; (ii) Customer will reimburse Service Provider for any reasonable expenses and fees related to the data transfer described in (i); (iii) once the data transfer described in (i) is complete, Service Provider may terminate the Enterprise Service; and (iv) Service Provider will delete all copies of Customer data remaining in its control.
(d) Survival. The rights and obligations of the parties under Sections 1, 4, 6, 7(c), 8, 9, 10(c), 10(d) and 11 will survive any expiration or termination of this Agreement.
(a) Assignment. Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s written consent except in the event of a Change of Control (as defined below). Any attempted assignment or transfer in violation of this Section will be void. “Change of Control” means, with respect to a party: (i) the direct or indirect acquisition of either: (a) the majority of voting stock of such party or (b) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (ii) the merger of such party with another entity. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
(b) Governing Law. This Agreement and all matters arising out of or relating to this Agreement will be governed by the laws of the State of California, without regard to its conflict of laws provisions.
(c) Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
(d) Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
(e) Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section.
(f) Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
(g) Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
(h) Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, pandemics, fires, floods, storms, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will promptly notify the other party and will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
Changes to Terms
Subscript reserves the right, in its sole discretion, to change the Terms under which subscript.com is offered. The most current version of the Terms will supersede all previous versions. Subscript encourages you to periodically review the Terms to stay informed of our updates.
Subscript welcomes your questions or comments regarding the Terms:
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Effective as of July 27, 2021