SUBSCRIPTION AND SERVICES TERMS AND CONDITIONS
Last Updated September 26, 2016
These Subscription and Services Terms and Conditions (this “Agreement”) is a legal agreement between you (“Subscriber” or “you”) and Vio, Inc. (“Dubsat” or “we”). This Agreement specifies the terms under which you may access and use the Platform (as defined below). Please read this Agreement carefully before accessing or using the Platform, because by doing any of the foregoing, clicking “I Agree,” or otherwise manifesting assent to this Agreement, you agree to be bound by the terms of this Agreement. If you do not agree to (or cannot comply with) all of the terms of this Agreement, do not access or use the Platform. If you are executing this Agreement on behalf of a company, you represent that you are an authorized representative of the company capable of binding the company to this Agreement, and the company shall be deemed the Subscriber for the purposes of this Agreement.
The parties agree as follows:
DEFINITIONS. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Authorized User” means any of your current employees, consultants, or agents whom you authorize to access and use the Platform pursuant to the terms and conditions of this Agreement; provided, however, that any consultants’ or agents’ access and use of the Platform shall be limited to their provision of services to you. You are responsible for the acts and omissions of your Authorized Users and any other person who accesses and uses the Platform using any of your or your Authorized Users’ access credentials.
“Beta Features” means pre-release features, functionalities, or modules of the Platform that are made available to you to use and evaluate.
“Billing Information” means any of your billing information, including, without limitation, credit card numbers, account details, banking information, and similar data.
“Confidential Information” means: (i) with respect to Dubsat, the Platform, the Website, and any and all source code relating thereto and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, or data; (ii) with respect to you, your Data and any other non-public information or material regarding your legal or business affairs, financing, customers, properties, or data; and (iii) with respect to each Party, the terms and conditions of this Agreement. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
“Data” means any data that you or your Authorized Users submit to the Platform.
“Destructive Elements” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Platform or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Platform to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with operations.
“Fees” means our published fees for the Services.
“Platform” means our proprietary, cloud-based platform to which you are subscribing under this Agreement.
“Professional Services” means any professional services provided by us that are incidental to your use of the Platform.
“Prohibited Content” means content that: (i) is illegal under applicable law; (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; (vii) contains Destructive Elements; or (viii) is otherwise objectionable to us in our sole, but reasonable, discretion.
“Services” means our provision to you of access to and usage of the Platform through the Website as set forth in this Agreement and any Professional Services.
“Website” means any website through which we provide access to the Platform.
PROVISION OF SERVICES.
Services. We will provide you the Services subject to the terms and conditions of this Agreement.
Modifications. We modify the Platform and our Website from time to time by adding or deleting features to improve the user experience.
Customer Support. Phone support is available from 9:00 AM to 8:00 PM Eastern Standard Time Monday through Friday, excluding US national holidays. We accept support questions twenty-four (24) hours per day, seven (7) days per week at www.dubsat.com. Responses to support questions submitted through the Website are provided during phone support hours only. We attempt to respond to support questions within one (1) business day, although we do not promise or guarantee any specific response time.
Beta Features. From time to time, we may invite you to try Beta Features at no charge. You may accept or decline any such trial in your sole discretion. Beta Features are for evaluation purposes only and not for production use, are not considered part of the Services under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Feature trial period will expire upon the date that a version of the Beta Feature becomes generally available or we elect to discontinue such Beta Feature. We may discontinue Beta Features at any time in our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Feature, and you use any Beta Feature at your own risk.
FEES AND PAYMENT.
Fees. The Fees and any applicable sales taxes are due and payable as set forth below.
Payment by Credit Card. If you signed up with us using a credit card, you hereby authorize us to charge your credit card or other payment instrument for the Fees and any applicable sales taxes. You further authorize us to use a third party to process payments and hereby consent to the disclosure of your Billing Information to such third party. You may receive a receipt upon our receipt of payment or you may obtain a receipt from the Platform. You will keep your contact information, Billing Information, and credit card information (where applicable) up to date.
Payment Against Invoice. If you are paying by invoice, we will invoice you the Fees and any applicable sales taxes on a monthly basis. All amounts invoiced are due and payable within thirty (30) days from your receipt of the invoice.
Non-Cancelable and Non-Refundable. All payments made under this Agreement are non-cancelable and non-refundable.
Costs and Expenses for Non-Payment. If the Services are suspended for non-payment, we may charge a re-activation fee to reinstate the Services. You will promptly reimburse us for any reasonable expenses of collection, including costs, disbursements, and reasonable outside legal fees we incur, to the extent necessitated by your refusal to pay amounts that you are not disputing in good faith.
TERMINATION AND SUSPENSION.
Termination. You may stop using the Services at any time. We may suspend or terminate your access to the Services, with or without notice: (i) if you breach this Agreement; (ii) if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors; (iii) pursuant to Section 11.3 below; or (iv) if we elect to discontinue the Services.
Effect of Expiration or Termination. Upon termination: (i) we will stop providing the Services, and you will stop all access to and use of the Website and Platform; (ii) you will promptly pay, or we may automatically charge your credit card or other payment instrument, all unpaid Fees and applicable sales taxes; and (iii) upon written request and subject to Section 6.4, each Party shall either return to the other Party (or, at such other Party’s instruction, destroy and provide such other Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such other Party’s Confidential Information that are in its possession or control.
Survival. The following provisions will survive expiration or termination of this Agreement: Section 1 (“Definitions”), Section 3 (“Fees and Payment”) until you have paid all Fees and applicable taxes, Section 4.2 (“Effect of Expiration or Termination”), Section 5 (“Confidentiality; Feedback”), Section 6.4 (“Aggregated Data”), Section 7 (“Intellectual Property”), Section 9.4 (“Disclaimer”), Section 10 (“Limitation of Liability”), Section 11 (“Indemnification”), Section 12 (“General Provisions”), and this Section 4.3 (“Survival”).
Confidentiality. The Receiving Party will: (i) protect the confidentiality of the Disclosing Party’s Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care; (ii) not use any of the Disclosing Party’s Confidential Information for any purpose outside the scope of this Agreement; and (iii) not disclose the Disclosing Party’s Confidential Information to any party other than its employees, contractors, advisors, and agents, who are bound by obligations of confidentiality as restrictive as those set forth in this Agreement. If the Receiving Party is legally compelled to disclose any of the disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and will use its best efforts to insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.
Feedback. You may elect to provide us with feedback, comments, and suggestions with respect to the Platform, the Website, or the Services (“Feedback”). You agrees that Dubsat shall be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to you.
Data Security. We shall employ commercially reasonable physical, administrative, and technical safeguards to secure your Data on the Platform from unauthorized use or disclosure.
Aggregated Data. We may monitor the performance and use of the Website and the Platform by all of our customers, combine this data (the “Usage Data”) with other data (including your Data), and use such combined data in an aggregate and anonymous manner. You hereby agree that we may collect, use, and publish such aggregate data for the purpose of creating aggregated and anonymized statistics regarding our customer base. Examples of our use of such aggregate data include, but are not limited to, statistics aggregated across all of our clients on metrics such as size of data sets, the number of users of the Website and Platform, revenue, number of transactions, and growth rates.
INTELLECTUAL PROPERTY. All right, title, and interest in and to the Platform, the Website, and the Usage Data, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, shall be and remain our sole and exclusive property. Subject to Section 6.1 and Section 6.3, all right, title, and interest in and to your Data, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, shall be and remain your sole and exclusive property.
USE AND LIMITATIONS OF USE; COOPERATION.
Restrictions on Use. You will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than Authorized Users to access and use the Platform or the Website; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform or the Website; (iii) modify, adapt, or translate the Platform or the Website; (iv) make any copies of the Platform or the Website; (v) resell, distribute, or sublicense the Platform or the Website; (vi) remove or modify any proprietary marking or restrictive legends placed on the Platform or the Website; (vii) use the Platform or Website in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; or (viii) introduce, post, or upload to the Platform or the Website any Prohibited Content.
Compliance. We have the right to monitor your compliance with this Agreement. If any such monitoring reveals that you are not using the Website or the Platform in compliance with this Agreement, then you will immediately remedy any such non-compliance, including, if applicable, through the payment of additional Fees.
Onboarding of Authorized Users. Authorized Users must log into the Website. During the initial registration, Authorized User will be prompted to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating the Authorized User’s identity when he or she logs-in in the future (“Unique Identifiers”). When creating the account, Authorized Users must provide true, accurate, current, and complete information. You are solely responsible for the confidentiality and use of Authorized Users’ Sign-In Names, Passwords, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Website or the Platform. You will promptly inform us of any need to deactivate a Password or Sign-In Name or change any Unique Identifier. We reserve the right to delete or change Authorized Users’ Passwords, Sign-In Names, or Unique Identifiers at any time and for any reason. We will not be liable for any loss or damage caused by any unauthorized use of an Authorized User’s account.
Cooperation. You acknowledge that our ability to implement and provide the Services is dependent on your providing us complete, accurate, up-to-date, and timely Data, information, and other materials. You agree to reasonably cooperate with us; to reasonably assist us; to provide such data, information, and other materials to us; and to cause your personnel and third-party service providers to do the same.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.
Additional Representations and Warranties of Dubsat. In addition to the representations and warranties set forth in Section 9.1, we represent and warrant to you that the Professional Services shall be performed in a professional and workmanlike manner.
Your Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 9.1, you represent and warrant to us that your Data contains no Prohibited Content.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, SECTION 9.2, AND SECTION 9.3, THE SERVICES, THE PLATFORM, THE WEBSITE, ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER PARTY MAKES ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, 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 EITHER 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.
LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH YOUR BREACH OF SECTION 8 OR YOUR FAILURE TO PAY ANY AMOUNTS DUE AND OWING: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY YOU HEREUNDER DURING THE PERIOD SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
Indemnification by Dubsat. Subject to Section 11.2, we will defend, indemnify, and hold harmless you and your officers, directors, managers, and employees from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) in connection with any third-party action, claim, or proceeding that the use of the Platform and/or the Website in accordance with this Agreement infringes or misappropriates any third-party copyrights or trade secrets; provided, however, that the foregoing obligations shall be subject to your: (i) promptly notifying us of the claim; (ii) providing us, at our expense, with reasonable cooperation in the defense of the claim; and (iii) providing us with sole control over the defense and negotiations for a settlement or compromise.
Exceptions to Our Indemnification Obligations. We are not obligated to indemnify, defend, or hold you or any third party harmless hereunder to the extent: (i) the claim arises from or is based upon your or your Authorized Users’ use of: (a) the Platform and/or the Website not in accordance with the documentation or this Agreement; or (b) any unauthorized modifications, alterations, or implementations of the Platform and/or the Website made by you or at your request (other than by us); (ii) the claim arises from use of the Platform and/or the Website in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by us; or (iii) the claim arises from any use of the Platform and/or the Website for which they were not designed.
Infringement Claims. In the event that we reasonably determine that the Platform and/or the Website is likely to be the subject of a claim of infringement or misappropriation of third-party rights, we shall have the right (but not the obligation), at our own expense and option, to: (i) procure for you the right to continue to use the Platform and/or the Website as set forth hereunder; (ii) replace the infringing components of the Platform and/or the Website with other components with the equivalent functionality; or (iii) suitably modify the Platform and/or the Website so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to us on commercially reasonable terms, we may terminate this Agreement without further liability to you. This Section 11.3, together with the indemnity provided under Section 11.1, states your sole and exclusive remedy, and our sole and exclusive liability, regarding infringement or misappropriation of any intellectual property rights of a third party.
Indemnification by You. You will defend, indemnify, and hold harmless us and our officers, directors, managers, and employees from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) in connection with any third-party action, claim, or proceeding arising from your or any of your Authorized Users’ breach or violation of this Agreement; provided, however, that the foregoing obligations shall be subject to our: (i) promptly notifying you of the claim; (ii) providing you, at your expense, with reasonable cooperation in the defense of the claim; and (iii) providing you with sole control over the defense and negotiations for a settlement or compromise.
Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that in all cases, the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement shall operate or be deemed as a waiver of any such right or remedy.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard for choice of law provisions thereof.
Exclusive Forum. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of New York, Borough of Manhattan for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
Notices. All notices required under this Agreement (other than routine operational communications) must be in writing in one of the following forms. Notices shall be effective upon: (i) actual delivery to the other Party, if delivered in person, or by facsimile, or by e-mail (other than notices under Section 4.1, which may not be made via e-mail), or by national overnight courier; or (ii) five (5) business days after being mailed via U.S. postal service, postage prepaid.
Independent Contractors. The Parties are independent contractors. Neither Party shall be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other for any purpose, and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other.
Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision shall be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement shall remain in full force and effect. Any provision of this Agreement, which is unenforceable in any jurisdiction, shall be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
Force Majeure. Except for your obligations to pay any sums due hereunder, neither Party shall be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, earthquakes, strikes, or shortages of materials or resources.
Third-Party Beneficiaries. Except as set forth in Section 11.1 and Section 11.4, there are no other third-party beneficiaries under this Agreement.
Complete Understanding. This Agreement constitutes the final and complete agreement between the Parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements.