MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement (the ”Agreement“) is made by and between Fotobabble, Inc. dba FotoNotes (”FotoNotes“) and the person or entity identified (“Customer”) in any applicable order form or trial agreement as of the date this Agreement is accepted by Customer (“Effective Date”) and governs the provision by FotoNotes of the software and services as set forth herein and any related or subsequent Orders Forms or Trial agreements.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DOING SO ON BEHALF OF AN ENTITY CUSTOMER, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THE CUSTOMER TO THESE TERMS AND CONDITIONS.
a. “Fee” means the fees charged by FotoNotes for the Subscription as set forth in Schedule A and any applicable Order Form.
b. ”FotoNotes Server“ is the online, hosted, web-based image,audio and mobile information management platform provided by FotoNotes.
c. ”FotoNotes Mobile Application“ means the application licensed by FotoNotes to Customer and downloaded by Customer’s Users to their internet-enabled iOS mobile devices.
d. ”Initial Term“ means the period beginning on the Effective Date and ending on the date set forth on Schedule A.
e. ”Order Form“ means the ordering documents for purchases of Software or Services hereunder, including addenda thereto, that are entered into between Customer and FotoNotes from time to time. Unless specifically set forth therein, each Order Form shall be deemed incorporated herein by reference.
f. ”Services“ means those development, configuration, implementation and training services performed by or on behalf of FotoNotes as set forth in the Development Services attached as Schedule A.
g. “Software” means, as applicable, the FotoNotes Server and FotoNotes Mobile Application and documentation provided by, or on behalf of, FotoNotes as set forth in Schedule A and any applicable Order Form.
h. “Subscription” means the access and license to the Software and Services described in Schedule A and any applicable Order Form during the Term in accordance with the terms and conditions of this Agreement.
i. ”Customer Data“ means all data or information recorded into and submitted by Customer to the Software.
j. ”Users“ means those employees, consultants, agents or representatives of Customer who have been issued a unique user identification and password in order to access the Software.
2. GRANT OF LICENSE. Subject to the terms and conditions of this Agreement, FotoNotes grants Customer for the Initial Term and any subsequent Renewal Term(s) (as defined below) (collectively the ”Term“) a limited, non exclusive, non-sublicensable, non-transferable, license to install the FotoNotes Mobile Application and access and use the Software for its internal business purposes subject to the limitations on number of Users and projects as set forth in Schedule A or any applicable Order Form.
3. RESERVATION OF RIGHTS. Customer acknowledges FotoNotes’s exclusive right, title and interest in the Software copyright, patents, trade secrets and FotoNotes trademarks, excluding third-party components. Nothing in this Agreement shall be interpreted to grant (by implication or otherwise) any license or rights
except as expressly stated herein. FotoNotes retains ownership of all Software and copies. Customer may not (a) copy, reverse engineer, decompile, or disassemble the Software, except to the extent expressly permitted by applicable license and law notwithstanding this limitation or (b) sell, copy, rent, lease, distribute, pledge, assign, make available or otherwise transfer its license rights to any third party. Customer shall not remove any copyright notices or licensing terms from the Software or any components including third party components. Customer may not use the Software if the Subscription has terminated. Customer shall not allow more than the permitted
number of concurrent Users set forth on Schedule A or an applicable Order Form to use the Software.
4. SECURITY; INTEGRITY. FotoNotes shall implement and maintain measures in accordance with generally accepted industry standards to (a) store Customer Data; and (b) protect against any anticipated threats or hazards to the security or integrity of Customer Data; provided, that Customer shall be solely responsible for protecting its User IDs and passwords and FotoNotes shall not be responsible for any unauthorized access under a valid User ID and password.
5. CUSTOMER DATA; CUSTOMER OBLIGATIONS. All Customer Data shall remain the proprietary information of the Customer. Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) obtain and maintain any equipment, mobile devices and ancillary services needed to connect to, access or otherwise use the Software; (c) comply with all applicable local, state, federal, and foreign laws in using the Software; (d) comply with applicable third party terms and condition and policies applicable to Customer in make accessing or using the Software; and (e) be responsible for moderating the Customer Data submitted to the FotoNotes Server and shall remove infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material.
6. USE RESTRICTIONS. Customer shall not knowingly or intentionally: (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) permit Users to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) interfere with or disrupt the integrity or performance of the Software or the data contained Master Subscription Agreement – click through.doc 2 therein; or (e) attempt to gain unauthorized access to the Software or its related systems or networks.
7. SUPPORT SERVICES. FotoNotes shall: (a) use industry standard methods and technology to maintain the security and integrity of the FotoNotes Server, and (b) use commercially reasonable efforts to make the FotoNotes Server generally available at all times, except for: (i) planned downtime, or (ii) downtime caused by circumstances beyond FotoNotes’s reasonable control, including computer or telecommunications failures or delays involving hardware or software not within FotoNotes’s possession or reasonable control.
8. SERVICES. Subject to the terms and conditions hereof, FotoNotes shall use commercially reasonable efforts to provide the Services to Customer in material conformance with specifications and timelines set forth on Schedule A.
9. PAYMENT. The Fees for the Development Services and Subscription are due and payable to FotoNotes as set forth on Schedule A.. All Fees are payable in U.S. dollars and are noncancelable and non-refundable, except as provided under this Agreement. Customer shall be responsible for payment of any taxes for the Software or Services received from FotoNotes.
10. RENEWAL AND TERMINATION. The Subscription may be renewed by mutual consent of Customer and FotoNotes for an additional term (each a ”Renewal Term“) at the applicable Fee. FotoNotes may elect to suspend the Subscription until the Fee for the applicable Term is received. Without prejudice to any other rights, FotoNotes may terminate the Subscription if Customer does not comply with the terms and conditions of this Agreement, in which case Customer must remove the FotoNotes Mobile Application from its Users’ devices and destroy or return all copies to FotoNotes. Notwithstanding the foregoing, the provisions of Section 9 (to the extent of any unpaid Fee) and Sections 12 through Section 25 shall survive termination of this Agreement.
11. LIMITED WARRANTY. For a period of 30 days from first delivery of such Software, FotoNotes warrants that the Software will perform substantially in accordance with the FotoNotes documentation for such Software. This warranty covers only problems reported during the warranty period. In the event of a breach of this warranty, FotoNotes shall repair or replace the applicable Software or, if replacement or repair is inadequate as a remedy or, in FotoNotes’s opinion, impractical, FotoNotes shall refund the Fees paid for the Subscription to such Software, as applicable. This Section 8 sets forth Customer’s sole and exclusive remedy and FotoNotes’s entire liability and obligation for any breach of this warranty.
12. DISCLAIMER OF WARRANTIES. The warranty provided in Section 11 is the only warranty made to Customer with respect to the Software and Services and is provided in lieu of any other warranties, express or implied. Except for such warranty and to the maximum extent permitted by applicable law, FotoNotes provides the Software and Services “AS IS”, and hereby disclaims all other warranties and conditions, either express, implied or statutory, including, but not limited to, implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of non-infringement, of accuracy or completeness, of workmanlike effort, all with regard to the Software and the provision of or failure to provide Services. Further, FotoNotes does not warrant results of use or that the Software is bug free or that its use will be uninterrupted.
13. LIABILITY LIMITATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FOTONOTES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, OR FOR LOSS OF PRIVACY) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY, AND EVEN IF FOTONOTES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL FOTONOTES BY LIABLE FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO FOTONOTES DURING THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
14. INDEMNIFICATION. FotoNotes will defend Customer from and against any third party claims alleging that Customer’s use of the Software as permitted hereunder infringes or misappropriates such third party’s U.S. patent, copyright or trade secret (each, a ”Claim“), and FotoNotes will pay any damages or expenses, including reasonable attorneys’ fees, attributable to such a Claim that are awarded against Customer in a final judgment or settlement; provided that Customer promptly notifies FotoNotes in writing of any such claim and allows FotoNotes to control, and fully cooperates with FotoNotes in, the defense of any such claim and all related settlement negotiations. FotoNotes’s indemnity obligation will not apply to the extent the Claim arises from: (a) the combination of the Software with technology not provided by FotoNotes, (b) the modification of the Software by a person other than FotoNotes, or (c) the use of other than the then-current version of the Software, if the alleged infringement would have been avoided but for such combination, modification, or use. In the event any Software becomes (or in FotoNotes’s opinion is likely to become) the subject of a Claim, FotoNotes shall at its sole option and expense either: (i) procure for Customer the right to continue using such Software; (ii) replace or modify the Software so that it becomes non-infringing; or (iii) terminate the Agreement and refund the Fees paid for such Software during the then current Term. THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF FOTONOTES, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OF THIRD-PARTY RIGHTS.
15. CONFIDENTIALITY. During the Term of this Agreement, each party may have access to information or material of the other party relating to its business, technology or operations, expressly identified in writing or verbally as confidential and proprietary (“Confidential Information”). Confidential Information shall not include information which: (a) is, or becomes, publicly available without restriction through no breach of this Agreement; (b) the disclosing party, in writing, authorizes the receiving party to disclose without restriction; (c) the receiving party lawfully knows at the time of disclosure, without an obligation to keep it confidential; (d) the receiving party lawfully obtains from any source other than the disclosing party, provided that such source lawfully disclosed such information; or (e) the receiving party independently develops without use of or reference to the Confidential Information. The parties shall not use not use, except as Master Subscription Agreement – click through.doc 3 permitted or required in the Agreement, and shall hold each other’s Confidential Information in confidence for a period of 5 years after termination of this Agreement, except for the Software, which shall be held in confidence in perpetuity. Each party agrees to take reasonable steps required to ensure that Confidential Information is not disclosed or distributed by its employees or representatives to any third party. Customer agrees not to use Confidential Information in any manner to develop substitutes for the Software or to advise any third-party developer for such purposes.
16. PROMOTION. Notwithstanding Section 15, FotoNotes may include Customer’s name and logo in customer listings on FotoNotes’s website and in marketing materials. In addition, upon reasonable request by FotoNotes, Customer agrees to act as a reference for FotoNotes, including taking reference calls from prospective customers, reporters and analysts.
17. EXPORT RESTRICTION. Customer acknowledges that the Software, with the possible exception of certain third-party components, is of U.S. origin. Customer agrees to comply with applicable domestic and international laws that apply to the Software, including the U.S. Export Administration Regulations and other limitations issued by U.S. and foreign governments.
18. GOVERNMENT RESTRICTED RIGHTS. The Software is provided with ”RESTRICTED RIGHTS“. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in FAR52.227-14 and DFAR252.227-7013 et seq. or its successor. Use of the Software by the U.S. Government constitutes acknowledgement of FotoNotes’s proprietary rights therein.
19. TRANSFER AND ASSIGNMENT. This Agreement and the rights and obligations under it are not assignable by Customer without the prior written approval of FotoNotes. Any attempt by Customer to assign this Agreement without such approval shall be void. This Agreement shall inure to the benefit of the successors and assigns of FotoNotes. Notwithstanding the foregoing, Customer may move the Software to different internal workstations and servers upon advance written notice to FotoNotes and subject to the limitations on use set forth herein.
20. FORCE MAJEURE. Except for the obligation to make payments, nonperformance of either party shall be excused to the extent the performance is rendered impossible by strike, fire, flood, war, governmental acts or orders or restrictions, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party.
21. EQUITABLE RELIEF. The parties agree that, due to the unique and proprietary nature of the Software, FotoNotes remedies at law for a breach of Customer’s confidentiality obligations, or of the restrictions on use of the Software, will be inadequate. In the event of such breach or threatened breach, FotoNotes shall be entitled to equitable relief (including, without limitation, injunctive relief and specific performance) in addition to all other remedies under this Agreement or available at law.
22. GOVERNING LAW AND JURISDICTION. This Agreement is to be construed in accordance with and governed by laws of the State of California, excluding its conflict of law provisions. FotoNotes and Customer agree to submit to the personal and exclusive jurisdiction of, and agree that venue is proper in, the California State or Federal Courts located in the County of Alameda, California, for any such legal action or proceeding. The United Nations Convention on International Sale of Goods, the application of which is expressly excluded, does not govern this Agreement.
23. ENTIRE AGREEMENT. This Agreement and Schedule A (and subsequent Order Forms), which are hereby incorporated herein by reference and made part of this Agreement, constitute the entire understanding between the parties relating to the subject matter hereof and supersede all prior writings, negotiations or understandings with respect thereto. The provisions of this Agreement shall take precedence over any conflicting terms in any subsequent purchase order, documentation or collateral. The parties agree that the Agreement may be signed in counterparts and a facsimile copy of this Agreement shall have the same binding effect as an original.
24. WAIVER AND SEVERABILITY. No term of this Agreement shall be considered waived, and no breach excused, by either party unless made in writing. The waiver of either party of any default or breach of this Agreement shall not constitute a waiver of any other subsequent default or breach. Any provision held invalid or unenforceable shall not affect the validity of the remaining provisions of this Agreement. A valid provision, which most closely approximates the intent and economic effect of the invalid provision, will be substituted.
25. LEGAL EXPENSES. If any action at law or in equity, including any action for arbitration or injunctive relief, is brought relating to this Agreement or the breach hereof, the prevailing party in any final judgment or arbitration award shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and reasonable attorneys’ and experts’ fees paid or incurred in good faith.