Effective Date: April 30, 2015
This Software Subscription Services Agreement (this “Agreement”) sets forth the obligations and conditions between you (“Subscriber”) and White Glove Labs, Inc., a Tennessee corporation (“Provider”), relating to your use of the Services, including the Software, as defined below in this Agreement. Your use of and access to the Services is expressly conditioned on your acceptance of this Agreement and the associated documents referred to in the Agreement.
PLEASE READ THE FOLLOWING DOCUMENTS CAREFULLY.
This Software Subscription Services Agreement;
Acceptable Use Policy;
CHILDREN’S ONLINE PRIVACY PROTECTION ACT (COPPA) NOTICE
THE SERVICES ARE NOT INTENDED TO BE USED BY PERSONS UNDER 13 YEARS OF AGE. ONLY SUBSCRIBERS WHO ARE 18 YEARS OF AGE OR OLDER MAY SUBSCRIBE TO THE SERVICES. BY COMPLETING THE SUBSCRIPTION PROCESS FOR THE SERVICES, YOU REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER (OR THE AGE OF MAJORITY IN YOUR LOCALE) AND CAN AND WILL BE LEGALLY BOUND BY THIS AGREEMENT.
- Provider is the owner of certain proprietary computer software and related documentation, whether hard copy or electronic copy, known as Launch Vaults that is used to scope, coordinate, develop, and execute websites (the “Software”).
- Provider provides and sells subscriptions for subscribers to access and use the Software via the internet at www.launchvaults.com (the “Website”) or other websites, as noted to subscribers from time to time (the “Services”).
- Subscriber desires to use the Services for Subscriber’s internal business purposes pursuant to the terms and conditions set forth in this Agreement.
- Provider is willing to provide access to the Services for Subscriber’s internal business use pursuant to the terms and conditions set forth in this Agreement.
- Provider and Subscriber acknowledge and agree that this Agreement shall be effective and in force immediately upon the date that Subscriber clicks the “I Agree” icon below (the “Effective Date”).
The Terms and Conditions of this Agreement are as follows:
1. Software Subscription.
- Provider grants to Subscriber and Subscriber accepts from Provider, a limited, non-exclusive, non-transferable right to access and use the Services solely for Subscriber’s internal business use. The Services shall not be used by Subscriber for, or on behalf of, third parties that are not authorized under this Agreement. Subscriber shall use its best efforts to ensure that the Services are used solely in accordance with the terms and conditions of this Agreement. Subscriber acknowledges that its right to use the Services will be web-based only pursuant to the terms of this Agreement and the Software will not be installed on any servers or other computer equipment owned or controlled by Subscriber or otherwise provided to Subscriber.
2. Intellectual Property Rights.
- Subscriber acknowledges that all right, title, and interest in and to the Services and the Software, together with its codes, sequences, derivative works, organization, structure, interfaces, any documentation, data, trade names, trademarks, or other related materials (collectively, the “Provider IP”), is, and at all times shall remain, the sole and exclusive property of Provider. The Provider IP contains trade secrets and proprietary information owned by Provider and is protected by United States copyright laws (and other laws relating to intellectual property). Except the right to use the Services, as expressly provided herein, this Agreement does not grant to Subscriber any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the Services or the Software.
- Subscriber shall not attempt, directly or indirectly, to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of the Services or the Software in any form or media or by any means.
- The provisions of this paragraph 2 shall survive termination of this Agreement.
3. Subscription Fee and Refund Policy
- On the Effective Date, Subscriber will begin a one (1) month free trial period. At the end of the free trial, unless Subscriber upgrades account by providing a valid credit card authorizing automatic, recurring payments of said Subscription Fee, the Subscriber will be locked out of current vaults accessed during the one (1) month free trial period. The Subscription Fee for all subsequent Subscription Periods of the term of this Agreement shall be paid to Provider on the first day of each subsequent Subscription Period, pursuant to subsection (c) below. Provider will provide at least sixty (60) days e-mail notice to each Subscriber prior to any changes in the Subscription Fee.
- The amount of the Subscription Fee does not include any applicable taxes. Subscriber is responsible for any and all applicable taxes.
- Subscriber is required to provide a valid credit card and shall take all necessary steps to authorize automatic, recurring payment of the Subscription Fee. By agreeing to this Agreement, Subscriber hereby authorizes Provider to automatically charge said method of payment for all Subscription Periods during the term of this Agreement. If, for any reason, automatic payment shall be denied, then Provider has the right, without liability, to immediately stop access to the Software, or Services, or both.
- Any additional payment terms between Provider and Subscriber shall be agreed to in writing or by email, and set forth in an invoice, billing agreement, or other written document.
- The Subscription Fee for a month-to-month subscription is pre-paid and is non-refundable, therefore, the Provider does not provide refunds or credits for any partial months of unused services. See details in refund policy.
Provider shall use commercially reasonable efforts to make the Services available on a 24×7 basis (twenty-four hours per day, seven days per week) during the Term (as defined in Section 7 below), except for: (i) scheduled system back-up or other on-going maintenance as required and scheduled in advance by Provider, or (ii) for any unforeseen cause beyond Provider’s reasonable control, including but not limited to internet service provider, hosting providers or communications network failures, denial of service attacks or similar attacks, or any force majure events set forth in this Agreement. Provider, or its vendors, will monitor performance indicators on the systems and network infrastructure (its own and that of third party suppliers) in order to gauge the overall performance of its hosting services, and will take reasonable steps to address systems and network infrastructure as required to maintain satisfactory performance of the Services. Provider further reserves the right to monitor and reasonably restrict Subscriber’s ability to use the Services if Subscriber is using excessive computing resources which are impacting the performance of the Services for other subscribers. Provider agrees to notify Subscriber in cases where it restricts such use and use good faith efforts to determine an appropriate alternative or work-around solution.
5. Other Policies.
The following additional policies apply to and are part of this Agreement:
- Acceptable Use Policy (“AUP”). Subscriber will comply with Provider’s AUP, posted at www.launchvaults.com, as such policy may change from time to time. In the event of Subscriber’s material breach of the AUP, including without limitation any copyright infringement, Provider may suspend or terminate Subscriber’s access to the Service, in addition to such other remedies as Provider may have at law or pursuant to this Agreement. Neither this Agreement nor the AUP requires that Provider take any action against Subscriber or any other customer for violating the AUP, but Provider is free to take any such action it sees fit.
- Data Policy (“Data Policy”). Provider’s standard policies regarding data security, Subscriber’s rights, and data retention and deletion are posted at www.launchvaults.com, as such policy may change from time to time.
- Refund Policy (“Refund Policy”). Explains the details regarding refunds.
6. Maintenance and Support.
Provider shall maintain the Software and Services and provide all patches and fixes to the Software and/or Services at no additional cost. Provided, however, said maintenance shall not include any major releases of new versions of the Software, additional functionality, or custom programming, which Provider, at its discretion, may provide at an additional cost as otherwise agreed between the parties.
7. Term; Termination.
- Term. The term of this Agreement shall commence on the Effective Date and shall continue until terminated as provided herein (the “Term”). The Term will consist of monthly periods (each a “Subscription Period”). The Agreement shall automatically renew for subsequent Subscription Periods unless Subscriber provides written notice of its election not to renew this Agreement at least fifteen (15) days prior to end of the then-current Subscription Period or otherwise terminates this Agreement pursuant to the terms of this Agreement.
- Termination for Cause. Either party may terminate this Agreement for material breach by written notice, effective in 30 days, unless the other party first cures such breach.
- Effect of Termination. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Subscriber shall immediately terminate, and the Subscriber shall cease using the Services and Software. The following provisions will survive termination of this Agreement: (i) any obligation of Subscriber to pay for Services rendered before termination; (ii) Sections 4, 5(b), 6(c), and 7 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
Subscriber shall be in default of this Agreement if Subscriber fails to make any payment when due and fails to cure said default within five (5) days after receipt of written notice thereof from Provider. In addition to the monetary breach described in the previous sentence, either party will be in default of this Agreement if the party is in material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice thereof from the non-breaching party. If a party is in default, the non-breaching party may terminate this Agreement or seek any other remedies available at law or in equity, except as otherwise provided in this Agreement. In the event Subscriber breaches or attempts to breach any of the provisions of this Agreement, Provider shall have the right, in addition to such other remedies that may be available, to injunctive relief enjoining such breach or attempt to breach, Subscriber hereby acknowledging the inadequacy of any remedy at law.
- In addition to, and in no way limiting the requirements relating to the Provider IP as set forth in Section 2 of this Agreement, Subscriber shall use its reasonable efforts (but in no case less than the efforts used to protects its own confidential or proprietary information of a similar nature) to protect all proprietary, confidential, and non-public information pertaining to or in any way connected to the Software; the Services; the Provider’s financial, professional. or other business affairs, and this Agreement (the “Confidential Information”).
- Subscriber shall not disclose or publicize the Confidential Information without the Provider’s prior written consent.
- Subscriber shall use its reasonable efforts (but in no case less than the efforts used to protects its own confidential or proprietary information of a similar nature) not to disclose and not to use the Confidential Information for their own benefit or for the benefit of any other person, third-party, firm or corporation in a manner inconsistent with the purpose of this Agreement.
- The terms of confidentiality and non-disclosure contained herein shall expire five (5) years from the date of the termination of this Agreement.
- The restrictions on disclosure shall not apply to information which was: (i) generally available to the public at the time of disclosure, or later available to the public other than through fault of the Subscriber; (ii) already known to the Subscriber prior to disclosure pursuant to this Agreement; (iii) obtained at any time lawfully from a third-party under circumstances permitting its use or disclosure to others; or (iv) required by law or court order to be disclosed.
10. Limited Warranty.
Provider warrants that it has the power and authority to grant the subscription for the Services granted to Subscriber in this Agreement. EXCEPT FOR THE WARRANTY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND PROVIDER DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (i) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND SUBSCRIBER AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND (ii) PROVIDER FURTHER DOES NOT WARRANT THAT THE SERVICE OR SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
11. Limitation of Remedy and Liability.
Subscriber represents that it accepts sole and complete responsibility for: (a) the selection of the Services to achieve Subscriber’s intended results; (b) use of the Services; and (c) the results obtained from Services. Subscriber shall not assert any claims against Provider based upon theories of negligence, gross negligence, strict liability, fraud, or misrepresentation, and Subscriber shall defend Provider from any demand or claim, and indemnify and hold Provider harmless from any and all losses, costs, expenses, or damages, including reasonable attorneys’ fees, directly or indirectly resulting from Subscriber’s use of the Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED UPON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF PROVIDER HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND EVEN IF SUBSCRIBER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 11, Provider’s liability will be limited to the maximum extent permissible. In any event, under no circumstances shall Provider be liable for any loss, costs, expenses, or damages to Subscriber in an amount exceeding the Subscription Fee actually paid to Provider by Subscriber for the immediately preceding Subscription Period.
- Subscriber Warranty. Subscriber warrants: (i) that it has accurately identified itself through during the subscription process and will maintain the accuracy of such identification; and (ii) that it is a corporation or other business entity authorized to do business pursuant to applicable law or an individual 18 years or older. Subscriber further warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
- Subscriber Feedback. Provider is engaged in a continuous program of research, development, improvement, and production of the Service and Software to ensure the best possible experience for subscribers. As part of that continuous improvement process Provider encourages subscribers to submit information regarding errors, nonconformities, other problems, or suggestions for improvement (collectively, “Feedback”). Feedback provided to Provider by Subscriber in any form, and the contents thereof, whether oral or written, and any other materials, information, ideas, concepts, and know-how Subscriber provides (including corrections to problems in the Service or Software) are not confidential and are Provider’s property, and Subscriber agrees to assign, and hereby does assign, to Provider all right, title and interest in and to such Feedback and materials.
- Notice and Demands. Notice, demand, or other communication mandated to be given by this Agreement by either party to the other shall be sufficiently given or delivered if it is sent, at Provider’s sole discretion, by e-mail or by registered or certified mail, postage prepaid, return receipt requested or delivered personally. Unless Provider is otherwise notified in writing, the Subscriber’s address for notice purposes shall be Subscriber’s e-mail address or physical address provided as part of Subscriber’s billing information.
- Governing Law; Forum Selection. This Agreement shall be governed exclusively by the laws of the State of Tennessee, without regard to its conflicts of laws principles. Any law suit, action, or proceeding arising out of or relating to this Agreement shall be commenced in a federal or state court in Nashville (Davidson County), Tennessee, and each party to this Agreement irrevocably submits to the exclusive jurisdiction and venue of any such court in any such law suit, action or proceeding. EACH PARTY FURTHER VOLUNTARILY AND KNOWINGLY WAIVES ANY OBJECTION TO SUCH JURISDICTION BASED UPON INCONVENIENCE OF FORUM AND ANY RIGHT TO A TRIAL BY JURY. Notwithstanding the previous sentence, Provider may pursue equitable relief to prevent irreparable harm (e.g., inappropriate use or disclosure of Provider’s Confidential Information) in any court of competent jurisdiction.
- COPPA Compliance and Other Certain Notices. The Services are not intended to be used by persons under 13 years of age. Only Subscribers who are 18 years of age or older may subscribe to the Services. By completing the subscription process for the Services, you represent that you are 18 years of age or older, and can and will be legally bound by this Agreement. If you are under 18 years of age (or the legal age of majority or maturity in your country, state or local jurisdiction of residence), your parent or guardian must read and accept the terms of this Agreement before you subscribe. Further, pursuant to 47 U.S.C. Section 230(d), Provider hereby notifies Subscriber that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. Information regarding providers of such protections may be found on the internet by searching “parental control protection” or similar terms.
- Compliance with Laws. Subscriber shall use the Services in accordance with any and all applicable local, state, and federal laws.
- Headings. The paragraph headings in this Agreement are for convenience only and they form no part of the Agreement and shall not affect the interpretation thereof.
- Severability. If any provision of this Agreement shall be held illegal, void, or unenforceable, the remaining portions shall remain in full force and effect.
- No Waiver. The delay or failure of either party to exercise any right under this Agreement or to take action against the other party in the event of any breach of this Agreement shall constitute a waiver of such right, or any other right, or of such breach, or any future breaches, under this Agreement.
- Assignment. Subscriber shall not assign or transfer this Agreement without the express written consent of Provider, which may be withheld at Provider’s sole discretion. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
- No Partnership or Agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as an agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise bind the other in any way.
- Force Majeure. Provider will not be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the Provider’s reasonable control, including but not limited to fire, flood, storm, act of God, war, malicious damage, failure of a utility service or transport or telecommunications network.