These Subscription Terms of Service constitute a binding agreement by and between Assemble, Inc. (“Licensor”), and the customer (“Customer”) signing up via any online signup form, registration page, or online order form or similar document entered into online via a Licensor controlled website, or any mutually agreed physical ordering document, order form or purchase order, or similar document mutually executed by the parties (collectively, each, an “Order Form”), and is effective as of the date on the initial Order Form between the parties (the “Effective Date”). These Subscription Terms of Service together with any Order Form(s), are collectively, referred to as the “Agreement.”
PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY AS IT CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN LICENSOR AND CUSTOMER. BY CLICKING “I AGREE” OR ON THE BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, CREATING AN ACCOUNT, EXECUTING AN ORDER FORM, SUBSCRIBING TO THE SERVICE OR OTHERWISE USING THE SERVICE, WHETHER AS A PAID SUBSCRIBER, FREE USER OR TRIAL USER, CUSTOMER IS INDICATING THAT CUSTOMER HAS READ, UNDERSTOOD AND AGREES TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT REGISTER FOR, ACCESS OR USE THE SERVICE.
Licensor develops and licenses access to the hosted software application subscription service(s) as described on the applicable Order Form and as further described more fully herein (collectively, the “Service”). The following terms and any additional terms incorporated by reference herein govern Customer’s access and use of all Services.
1.1. Service License Grant. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Customer a limited, nonexclusive, non-transferable license to access and use the Service during the Term, solely by the number of authorized users as set forth on the applicable Order Form (if applicable), and solely for internal and non-commercial purposes. Customer shall comply with all official documentation, technical manuals, functional manuals, operator and user guides and manuals (collectively, the “Documentation.”) The Services are subject to usage limitations, such as for example, limits on document storage space. These limitations vary based on the edition of the Services ordered by Customer and these limitations are contained in the Order Form. If Customer exceeds the document storage limit, it will be limited in adding more attachments and creating further project status reports until it purchases additional document storage space. Customer may purchase additional document storage space at Licensor’s then current pricing for additional document storage.
1.2. Licensor offers both free and paid Services. Licensor may offer a “beta” version or features of the Service (the “Beta Service”), unpaid trials of versions or features of the Service (“Unpaid Trials”) or free versions or features of the Services (the “Free Services.”) Licensor will determine, at its sole discretion, the availability, duration (the “Trial Period”) and features of each Beta Service and Unpaid Trials. For more details about Unpaid Trials or to register for a Free Services, please visit Licensor’s website at www.assemble.tv. THE BETA SERVICE AND UNPAID TRIALS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES. Notwithstanding anything to the contrary in this Agreement, in no event will Licensor be liable to Customer or any third party for any damages or liability related to, arising out of, or caused by the Beta Service or Unpaid Trials and any modification, suspension, or termination thereof. If Licensor permits Customer to use the Beta Service or Unpaid Trials, Customer agrees to provide Feedback (as defined below) and respond to Licensor’s questions or other inquiries regarding its use of the Beta Service or the Unpaid Trial, as applicable. Licensor at its sole discretion shall determine whether or not to continue to offer any Beta Service and Unpaid Trial. Upon completion of a Trial Period, Customer will lose access to the applicable Beta Service and/or Unpaid Trial, unless Customer subscribes to the Service as a paid or, if applicable, a Free Service subscriber. For the Free Services, Licensor may change the limits that apply to Customer’s use at any time in Licensor’s sole discretion without notice to Customer, regardless of whether or not these are used in conjunction with other products or services for which Customer pays Licensor a fee. Except as provided in this Section 1.2, this Agreement governs Customer’s use of the Beta Service, Free Services and the Unpaid Trials.
2.1. Customer Data. Licensor acknowledges and agrees that Customer shall own all title to and ownership of the Customer Data (defined below) and that Licensor shall have no rights thereto except the limited right to use the same on an ‘as needed’ basis in connection with Licensor’s performance hereunder and as otherwise expressly permitted herein. As used herein, “Customer Data” shall mean any proprietary raw data owned by Customer independent of this Agreement, which Customer may input into the Service. Customer grants to Licensor a perpetual, non-exclusive license to use such Customer Data (a) in order to provide the Service to Customer; (b) for statistical use (provided that such data is not personally identifiable); and (c) as necessary to monitor and improve the Service. Upon Customer’s request, Licensor will provide Customer with an electronic copy of all Customer Data under Licensor’s control, provided that Licensor may charge a reasonable fee for such additional service.
2.2. Licensor Technology. Customer acknowledges and agrees that, subject only to the limited rights expressly granted to Customer under Section 1, Licensor owns and shall at all times retain all rights in and to the Services, including without limitation, all trade secret, copyright, patent, trademark, trade name, and other intellectual and proprietary rights in the Service, software and the Documentation, and all Licensor Data (defined below), and in the technology embodied in or reflected by the foregoing (in each case including any extensions, derivatives, translations, reformulations or developments of the foregoing) (collectively, “Licensor Technology”). Subject only to Section 2.1 above, Licensor shall own all rights to any data in and/or derived from the Service, including all data Licensor incorporated therein, and all usage data, statistical data or aggregated data collected (collectively, “Licensor Data”). Nothing contained in this Agreement or in the parties’ performance or failure to perform hereunder, or in any Services provided by Licensor, shall be construed as granting or conferring to Customer, by implication, estoppel, or otherwise, any such rights in or to any Licensor Technology.
Customer shall pay to Licensor in immediately available US dollars, the applicable subscription and other fees in the amounts and timing as specified in any Order Form (the “Fees”). If no payment schedule is specified in the applicable Order Form, then all amounts are due and payable upon Customer’s execution of this Agreement. The Fees are exclusive of all applicable taxes, duties or other governmental assessments, which are the responsibility of Customer. Unless otherwise stated in this Agreement, invoices will be stated in United States dollars and shall be due and payable within 30 days following invoice date unless otherwise specified herein or agreed upon in writing by the parties. Late payments shall be subject to a service charge equal to the lesser of, 1.0% per month or the maximum amount allowed by law, with respect to the overdue amount. Licensor may not raise the Fees during the Initial Term unless otherwise mutually agreed (or if the Customer elects to subscribe to additional Services or purchase additional storage space), but does reserve the right to increase the Fees at the end of the Initial Term or during any Renewal Term, by delivering written notice to Customer. During any free trial period, if any, Customer will still be responsible for any purchases and surcharges incurred using its account. Payments for the Service shall be made by the payment method selected by Customer when it subscribes to the Service. If Customer chooses to have payments automatically charged to an authorized credit card provided by Customer, Customer will be prompted to provide financial information, including credit card and other billing information, directly to a secure third party credit card payment processing service to process and charge its subscription fee. The credit card payment processor will not share Customer financial information with Licensor and Licensor will not store any such information on its servers. By subscribing to the Service and selecting the credit card payment method, Customer authorizes the credit card payment processor to charge the subscription fee automatically in accordance with the Order Form and any other charges Customer may incur with the Service.
The initial term length shall be as specified the initial Order Form; provided that if no initial term length is specified in any Order Form then the initial term shall be one year (the “Initial Term”). After such initial term, this Agreement shall automatically be renewed for successive one-year renewal terms (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either party opts out by giving written notice to the other party at least 30 days prior to the end of the then current term. Either party may terminate this Agreement (a) upon 30 days prior written notice if the other party has materially breached this Agreement and has not cured the same within the 30 day notice period, or (b) immediately upon written notice in the event of the filing of a petition for bankruptcy or reorganization by or against the other party or the dissolution or liquidation of the other party. Upon any termination of this Agreement, (a) Customer shall promptly: (i) discontinue all use of the Service and Documentation; (ii) erase or destroy any electronic copies or partial copies of the Documentation, and return to Licensor or destroy any tangible copies or partial copies of the Documentation, in its possession or control; and (iii) certify in writing to Licensor that Customer has complied with these requirements; (c) Licensor shall disengage Customer’s access to the Service, and (d) both parties shall promptly return to the other or destroy the other party’s Confidential Information. Any payment obligations of Customer, provisions providing for limitations on liability, and those terms which by their nature were intended to survive any termination of this Agreement shall so survive including Section 2 and Sections 5 - 11.
5.2. Customer represents and warrants that the Customer Data, and information it uses in connection with this Agreement as well as Customer’s and any authorized users’ use of the Service does not violate any applicable law or regulation. Customer represents and warrants that any Customer Data, or materials created by Customer in the course of using the Service will comply with all applicable laws, and will not infringe the copyright, trade secret, privacy, publicity, or other rights of any third party. In the event of any breach, or reasonably anticipated breach, of any of Customer’s warranties herein, in addition to any other remedies available at law or in equity, Licensor will have the right to immediately, in its sole discretion, suspend the Service if deemed reasonably necessary by Licensor to prevent any liability for Licensor.
Customer shall indemnify and hold Licensor harmless from any costs, expenses, claims, liabilities, judgments, damages or losses, in each case arising out of (i) any breach by Customer of this Agreement, including any representation, warranty or obligation herein; (ii) the Customer Data or any other content, data or other materials input into the Service, or otherwise provided, by or on behalf of Customer; (iii) any actual or alleged non-compliance by Customer with applicable laws and regulations; (iv) Customer’s actual or alleged violation of third party privacy rights, including without limitation any breach of the scope of the license granted herein; or (v) Customer’s violation of Licensor’s intellectual property rights, including without limitation any violation of Sections 2 or 9.1.
TO THE FULLEST EXTENT PERMITTED BY LAW, (A) IN NO EVENT SHALL LICENSOR BE LIABLE, BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, OR COSTS OF COVER, IN CONNECTION WITH THIS AGREEMENT, EVEN IF LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND (B) LICENSOR’S TOTAL LIABILITY UNDER THIS AGREEMENT OF ANY KIND, WITH ALL CLAIMS, DAMAGES AND LIABILITIES AGGREGATED, AND BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF THE SERVICE FEES PAID BY CUSTOMER IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY). ANY CLAIM BY CUSTOMER SHALL BE BROUGHT WITHIN 12 MONTHS FOLLOWING THE EVENT GIVING RISE TO THE SAME.
Customer acknowledges that Licensor has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same forms an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
8.1. Confidential Information. Each party acknowledges that by reason of the relationship created between the parties by this Agreement, it may have access to certain non-public information of substantial value concerning the other party's business, operations, strategic plans, customers, suppliers, technology, competition and employees (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties or used other than for purposes expressly authorized hereunder. Without limiting the foregoing, but for avoidance of doubt, the terms of this Agreement, and any performance, warranty and like information relating to the Service (by whomsoever generated or communicated) will be considered Confidential Information of Licensor. Accordingly, each party agrees (a) to maintain all Confidential Information received from the other, in whatever form disclosed, in strict confidence, (b) not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party, and (c) not to use the Confidential Information of the other party except as required in the performance of its obligations or the exercise of its rights hereunder. The foregoing obligations shall not apply to Confidential Information of a disclosing party that, can be reasonably demonstrated with admissible evidence by the receiving party: (i) is or becomes a matter of public knowledge though no action or omission of the receiving party; (ii) was rightfully in the receiving party’s possession without restrictions on use or disclosure prior to its disclosure by the disclosing party; (iii) is rightfully obtained by the receiving party without an obligation of confidentiality from a third party who has no obligation of confidentiality, direct or indirect, to the disclosing party; (iv) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or (v) is required to be disclosed by a court or other authorized tribunal, and then only to the extent of such requirement and only after given prompt notice of the requirement to the disclosing party.
8.2. Return of Confidential Information. Upon the written request of the disclosing party (subject to each party’s rights, during the Term, to retain the other’s Confidential Information solely for purposes of performing its obligations and exercising its rights hereunder) or upon any termination of this Agreement, the receiving party shall (a) immediately return to the disclosing party or destroy all copies and partial copies of the Confidential Information, whether maintained in tangible, electronic or other form (including permanently erasing any portions thereof from computers and systems) and (b) provide the disclosing party with written certification of its compliance with the terms of this Section.
8.3. Remedies. Each party acknowledges that any breach of any of its obligations with respect to the other party's Confidential Information may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in such event, the aggrieved party shall be entitled to seek equitable relief in any court of competent jurisdiction without the necessity of posting bond and in addition to such other remedies as may be available to the aggrieved party under law or in equity.
9.1. General Restrictions. Customer shall not, and shall not attempt to (and shall not authorize or allow any third party to or attempt to): (a) download or otherwise obtain a copy of the Service software or any software in any form; (b) reverse engineer or otherwise derive the source code of the Service or software or otherwise modify, reverse compile, disassemble, or translate the Service, or software or create any derivative works thereof; or (c) sell, lease, license, sublicense, distribute or otherwise transfer in whole or in part the Service or use it as a service bureau; (d) post, send, process or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material violating of third party rights; (e) post, send, process or store material containing software viruses, worms, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; (f) interfere with or disrupt the integrity or performance of the Service or attempt to gain unauthorized access to the Service or related systems or networks; (g) remove, alter or obscure any titles, product logo or brand name, trademarks, copyright notices, proprietary notices or other indications of the intellectual property rights and/or Licensor’s rights and ownership thereof; (h) use, or authorize or permit the use of, the Service except as expressly permitted herein; (i) use the Service to perform any activity which is or may be, directly or indirectly, unlawful, harmful, threatening, abusive, harassing, tortuous, or defamatory, nor to perform any activity which breaches the rights of any third party. The Service may be used only by Customer (i) for its internal business purposes; (ii) only by the number of persons for whom a license fee has been paid, and all such use may only be by those persons using the Service for the benefit of Customer in the course and scope of their employment, subject to the terms hereof; (iii) only in its original form without alteration or combination with other products, services or software except as expressly authorized in any applicable Documentation; and (iv) in compliance with all applicable laws, rules, regulations and industry standards, and in compliance with all Documentation and instructions provided by Licensor. In order to access some features of the Service, Customer may have to register or create an account. Customer may never use another's account without permission. Customer is solely responsible for the activity that occurs on its account, for keeping its account password secure, and for notifying Licensor immediately of any breach of security or unauthorized use of its account. Customer agrees not to circumvent, disable or otherwise interfere with security-related features of the Service, or features that prevent or restrict use or copying of any content or enforce limitations on use of the Service, or the content therein. To the extent the Service allows uploading or posting of content or data, Customer will ensure that any content or data posted by or on behalf of Customer is not inappropriate, illegal, or in violation of any third party rights.
9.3. Internet Access and Equipment. Customer is responsible for maintaining its own access to the internet, and for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like, and for maintaining the security thereof.
Licensor provides a range of online support that includes email and electronic chat support during normal business hours, 9am to 6pm pacific time Monday through Friday. Future versions of the Service may be developed and released by Licensor at its sole discretion. Licensor does not warrant or represent that it will develop or release any upgrades within a given timeframe.
11.1. Notices. All notices required or permitted under this Agreement shall be in writing and shall be sent by hand, overnight courier or by facsimile or email (in each case with confirmation of receipt). Notices shall be deemed delivered on the date of delivery, if delivery occurs within normal business hours or on the next business day if delivery occurs outside of normal business hours. All communications will be sent to the respective addresses first set forth below or in the case of the Customer to the address used when registering to use the Services.
11.2. Assignment. Customer may not assign this Agreement or any of its licenses, rights or duties under this Agreement, whether by operation of law or otherwise, without the prior written consent of Licensor. Subject to the previous sentence, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors and assignees. The Services shall at all times be hosted by or on behalf of Licensor on a server environment of its’ choosing. Licensor reserves the right to change the server environment from time to time as it may deem fit, or outsource hosting or other aspects of the Service in its sole discretion, so long as the Service continues to comply with the express requirements of this Agreement.
11.3. Publicity. Customer expressly grants Licensor the right to include Customer in a list of customers on Licensor's website or other promotional material in relation to the Services for marketing purposes. Customer can deny Licensor this right at any time by submitting a written notice, requesting to be excluded from promotional material.
11.4. Waiver. A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver and shall not be construed as a waiver of future performance of any such term.
11.5. Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement (or the performance of or access to the Service), other than payment obligations, due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action; provided that the delayed party: (i) gives the other party written notice of such cause promptly; and (ii) uses its reasonable efforts to correct such failure or delay.
11.6. Entire Agreement; Construction. This Agreement and its Exhibits and Schedules constitute the entire understanding between the parties, and supersede all prior discussions, representations, understandings, or agreements, whether oral or in writing, between the parties with respect to the subject matter of this Agreement. If any provision of this Agreement shall be held by a court of law of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect and, to the extent allowed and practicable, the unenforceable provision shall be modified so as to be enforceable consistent with its original intent and economic effect. The headings and captions used in this Agreement are for convenience only, and shall not affect the interpretation of the provisions of this Agreement. This Agreement and any amendment hereto may be executed in counterparts, each of which shall be deemed an original and both of which together shall constitute one instrument.
11.7. Governing Law and Jurisdiction; Attorneys’ Fees. This Agreement shall be governed by and construed under the laws of the State of California without regard to conflict of laws provisions. The federal and state courts sitting in Los Angeles, California shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement, and each party hereto expressly consents to the personal jurisdiction of such courts and waives any objection to venue, including the objection of forum non conveniens. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
11.8. Modifications to Software, Products, Services & Terms. Licensor reserves the right to modify or discontinue the Services or any other software, products or services at any time with or without notice to Customer, including without limitation by adding or subtracting features and functionality, third party content, etc. In the event of such modification or discontinuation, Customer’s sole remedy shall be to terminate this Agreement as set forth herein. Continued use of the Services following any such changes will indicate Customer’s acknowledgement and acceptance of such changes and satisfaction with the Services as so modified. Licensor may change the terms of this Agreement from time to time, by updating these terms as posted online and/or in the applicable software. Any such changes will become effective when notice is received or when so posted, whichever first occurs. If Customer objects to any such changes, Customer’s sole recourse will be to terminate this Agreement. Continued use of the Services following such changes will indicate Customer’s acknowledgement of such changes and agreement to be bound by such changes.
Licensor address for notice: Assemble, Inc. [to be supplied]