SUBSCRIPTION SERVICES AGREEMENT
THIS SUBSCRIPTION SERVICES AGREEMENT
IS MADE BY AND BETWEEN NOTIFYWORKS, INC.,
AN IOWA CORPORATION ("LICENSOR) AND YOU
("LICENSEE"). BY USING THE LICENSOR'S WEB SITE AND SERVICES (THE "SERVICE"), YOU ARE AGREEING TO BE BOUND BY THE FOLLOWING SUBSCRIPTION SERVICES AGREEMENT (THE "AGREEMENT").
PLEASE READ THIS AGREEMENT CAREFULLY PRIOR TO USING THE SERVICE.
IF YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DISCONTINUE THE REGISTRATION PROCESS AND DO NOT ACCESS OR USE THE SERVICE IN ANY MANNER.
If you are using a free demo of our service, your use of the demo shall also be governed by this Agreement, with the exception of the payment terms. Any new features that augment or enhance the current Service, including the release of new services, shall be subject to the Agreement.
The Licensor reserves the right to update and change the Agreement from time to time in its sole discretion. Any such modifications will be reflected in the most current version of the Agreement, which Licensor will make available at:
Licensor will endeavor to use commercially reasonable efforts to notify you of any such modifications. However, your lack of such notice does not limit or waive your obligations under this Agreement, as amended, and you are solely responsible for maintaining your familiarity with all of the following terms. Continued use of the Service after any such changes shall constitute your consent to such changes.
SECTION 1 - ACCOUNT TERMS
You must be 13 years or older to use this Service and provide your full name, a valid email address, and any other information requested in order to complete the sign up process. Your login may only be used by you and up to two administrative assistants. You are solely responsible for the access you provide to your administrative assistants. You are solely responsible for maintaining the security of your account and password. Licensor cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You are responsible for all content, messages and notifications entered into the system and activity that occurs under your account (even when content, messages and notifications are entered by others who have access under your account). You may not use this Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in your jurisdiction.
SECTION 2 - GRANT OF LICENSE AND USE RESTRICTIONS
Licensor hereby grants to Licensee a limited, non-exclusive, non-transferable, revocable, worldwide license to access and Use the software services that you identify during the ordering process ("Licensed Software") for his or her own internal business purposes. The license grant does not authorize Licensee to: (i) copy the Licensed Software; (ii) modify or create derivative works based upon the Licensed Software; (iii) decompile, disassemble, or reverse engineer the Licensed Software (either in whole or in part); (iv) defeat, disable, or circumvent any protection mechanism related to the Licensed Software; and/or (v) sell, license, sublicense, lease, rent, or otherwise distribute the Licensed Software to any third party. All rights in the Licensed Software not expressly granted herein are reserved by Licensor.
Furthermore, Licensee shall not use the Service to engage in or promote illegal or abusive behavior, including interfering with the ability of any other customer of Licensor to use or access the Service or coordinating or participating in any activities that are reasonably likely to result in retaliation against the Services or against Licensor, its officers, employees or agents. Licensee further shall not, directly or indirectly, publish, transmit or store on any system or network owned or operated by Licensor any content - or any links to any content hosted elsewhere - that, in Licensor's sole and unfettered discretion relates in any manner to pornography; incites or threatens violence or contains harassing content or hate speech; is unfair or deceptive under the consumer protection laws of any jurisdiction; is defamatory or violates any person's privacy; creates a risk to any person's safety or health or interferes with an investigation by law enforcement; exposes trade secrets or other confidential information of another person or entity; is intended to assist others in defeating copyright protections; infringes another's copyright, trademark, patent, or other property right; promotes any unlawful activity or is otherwise illegal or solicits conduct that is illegal under any applicable laws; or is otherwise malicious, fraudulent, likely or calculated to result in retaliation against Licensor, or intended to harass or threaten any person or entity. Licensee further shall not use the Services to send or to attempt to send any bulk-mail or "SPAM" electronic communications.
SECTION 3 - TERM AND RENEWAL
The term of this Agreement begins on the date that you complete the ordering process and pay the Services Fee (defined below), and, unless properly terminated by either party, this Agreement will remain in effect for twelve (12) months. This Agreement will renew automatically for a renewal term of one year upon the expiration of the initial one-year term and also upon the expiration of each subsequent renewal term, unless the party intending to cancel the Agreement provides written notice of its intent to terminate at least thirty (30) days prior to the expiration of the then-current term. Licensee must deliver any such written notice to Licensor at firstname.lastname@example.org
SECTION 4 - PAYMENT
Licensee shall pay the "Services Fee" specified during the ordering process for access to the Licensed Software during the initial subscription term. Payment of the Services Fee shall be made in a lump sum via a valid credit card prior to access to the Licensed Software. For the Services Fee owed in any subsequent renewal term, unless this Agreement is terminated by either party, Licensor automatically shall charge the then-current fee amount on the renewal date to the credit card provided by Licensee during the ordering process. Licensee hereby consents to any and all such renewal charges being applied to that credit card account or to any substitute credit card account later specified by Licensee. If payment is not completed on the renewal date, Licensor shall terminate Licensee's account within ten (10) business days following the renewal date. Licensor reserves the right to modify its prices in the future without notice.
SECTION 5 - WARRANTY AND DISCLAIMER
Licensor warrants that it has all right, title, ownership interest, and/or marketing rights necessary to provide the Services to Licensee and that Licensee's use of the Services does not directly or indirectly violate or infringe any copyright, patent, trade secret, or other proprietary or intellectual property right of any third party.
WITH THE EXCEPTION OF THE EXPRESS WARRANTY STATED ABOVE, THE PARTIES HEREBY ACKNOWLEDGE THAT ACCESS TO AND USE OF THE LICENSED SOFTWARE IS PROVIDED "AS IS" WITH ALL FAULTS AND WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. LICENSOR DOES NOT WARRANT THAT: (I) LICENSEE'S ACCESS TO AND USE OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED AND/OR ERROR-FREE; (II) THE LICENSOR'S SITE, NETWORK AND/OR THE LICENSED SOFTWARE WILL MEET LICENSEE'S SPECIFICATIONS OR REQUIREMENTS; (III) LICENSEE WILL ACHIEVE COMMERCIAL AND/OR FINANCIAL SUCCESS AS A RESULT OF THE ACCESS AND USE OF THE LICENSED SOFTWARE; OR (IV) THAT THE LICENSED SOFTWARE WILL BE ACCURATE OR RELIABLE. WITH THE EXCEPTION OF THE EXPRESS WARRANTY STATED ABOVE,LICENSOR HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT WITH RESPECT TO THE LICENSED SOFTWARE.
FURTHERMORE, LICENSEE ACKNOWLEDGES THAT THE LICENSED SOFTWARE MAY BE UNAVAILABLE FROM TIME TO TIME FOR ROUTINE MAINTENANCE; PROVIDED, THAT LICENSOR SHALL USE COMMERCIALLY REASONABLE EFFORTS (I) TO PROVIDE AT LEAST 24 HOURS ADVANCE NOTICE TO LICENSEE VIA E-MAIL PRIOR TO THE BEGINNING OF ANY SCHEDULED DOWNTIME EXPECTED TO LAST MORE THAN 1 HOUR, AND (II) TO PERFORM SUCH ROUTINE MAINTENANCE BETWEEN THE HOURS OF 8:00 P.M. (CST) AND 8:00 A.M. (CST).
SECTION 6 - INDEMNIFICATION
Licensor shall indemnify and hold Licensee and its successors, officers, directors, employees, and agents harmless from and against any and all third-party demands seeking damages - together with reasonable attorney's fees - resulting from or arising out of any claims that the Licensed Software or Licensee's use of the Licensed Software violates or infringes any copyright, patent, trade secret, or other proprietary or intellectual property right of any third party. Licensor shall control the defense of any such claim or action, but Licensee shall have the right to participate in the defense of any such suit or proceeding at its expense and through counsel of its choosing. In the event an injunction against use of the Licensed Software is sought or obtained or, in Licensor's opinion, is likely to be sought or obtained, Licensor shall promptly, at its option and expense, either (i) shall procure for Licensee the right to continue to use the Licensed Software as set forth in this Agreement, or (ii) shall replace or modify the Licensed Software to make its use non-infringing while being capable of performing the same function without degradation of performance. In the event Licensor is unable to provide substitute software in accordance with the provisions of this Section, this Agreement is to be deemed terminated.
Licensee shall indemnify and hold harmless Licensor, its successors, assigns, officers, directors, agents, and employees from and against any and all claims, losses, actions, injury, damages, liabilities, costs, and expenses (including all attorneys' fees) arising out of or in any way relating to: (i) Licensee's breach of this Agreement of any terms governing Licensee's use of the Licensed Software (either in whole or in part); (ii) Licensee's legal malpractice, alleged legal malpractice or any other claim alleged by any client of Licensee; and/or (iii) Licensee's negligent acts and/or omissions.
SECTION 7 - LIMITATION OF LIABILITY
Except as expressly set forth elsewhere in this Agreement, in no event shall Licensor be liable for any claim, loss, action, injury, damage, liability, cost, and/or expense of any kind resulting in any way from Licensor's performance of Services and/or Licensee's access to and use of the Licensed Software. Except for any third-party claims of intellectual property infringement, as described above, under no circumstances shall Licensor's liability to Licensee exceed the amount of the fees paid by Licensee to Licensor during the twelve month period immediately preceding the date on which the applicable claim arose.
(b) No Indirect, Special, Punitive or Consequential Damages. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST OR STOLEN DATA AND/OR CONTENT, LOST REVENUE, AND/OR LOST PROFITS) RELATING TO AND/OR ARISING OUT OF LICENSOR'S PERFORMANCE OF SERVICES AND/OR LICENSEE'S ACCESS TO AND THE USE OF THE LICENSED SOFTWARE UNDER ANY THEORY OF LIABILITY.
SECTION 8 - OWNERSHIP OF INTELLECTUAL PROPERTY
The Licensed Software is the sole and exclusive property of Licensor. Licensee expressly agrees that all right, title, and interest in and to any and all source and object code, data, materials, and/or products created, developed, conceived, and/or first reduced to practice by Licensor in furtherance of this Agreement shall vest solely in Licensor.
SECTION 9 - CONFIDENTIALITY & NONDISCLOSURE
(a) Confidential Information.
As used in this Agreement, "Confidential Information" means the confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"). The Licensee's Confidential Information shall include the names, addresses, email addresses, telephone numbers and other contact information for his or her clients entered into the database as well as the content of actual email messages and/or notifications. Licensor shall not review or disclose the Confidential Information of Licensee unless requested to do so in writing by Licensee to prevent or address technical or service problems in connection with Licensee support matters. Licensee is encouraged not to include substantive legal advice or sensitive confidential information in its email messages and/or notifications. The Licensor's Confidential Information shall include the Service.
(b) Protection of Confidential Information.
The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those employees, contractors and agents who may need access consistent with this Agreement. The Receiving Party shall not disclose Confidential Information unless compelled to do so by law or court order, and the Receiving Party shall give prior written notice to the Disclosing Party so the Disclosing Party may contest the disclosure if he or she wishes.
SECTION 10 - TERMINATION
The Licensee may terminate this Agreement for any reason within 90 days after entering into the initial Agreement for a full refund. After the 90 day period passes, Licensee is not entitled to full or partial credit for any period he or she does not use the Service during the initial Term. Further, in subsequent renewal periods, Licensee is not entitled to full or partial credit for any period he or she does not use the Service during any renewal Term. Licensor may, at its option, terminate this Agreement and/or suspend access to the Licensed Software at any time in the event Licensee fails to pay any Fee on the date due, breaches its obligations under this Agreement or commits any illegality or fraud using the Service.
(b) Return of Licensee Data.
In the event this Agreement is terminated in accordance with this Section 10, Licensor agrees to return all Licensee Data which remains within the Licensed Software by mailing to Licensee's address a DVD containing such Licensee Data. Licensor shall not be liable in any way for any (i) unauthorized access to the Licensee Data which may result from Licensor's return of such Licensee Data as described above, or (ii) any loss of Licensee Data resulting from termination of this Agreement and return of the Licensee Data as described above.
(c) Continuing Obligations.
Notwithstanding anything to the contrary in this Agreement, any expiration or termination of this Agreement or any part thereof shall in no way affect the continuing obligations of the parties described in Section 7, "Indemnification", Section 8, "Limitation of Liability", Section 10, "Confidentiality and Nondisclosure".
SECTION 11 - MISCELLANEOUS
(a) Amendment or Modification.
Except as otherwise expressly set forth in this Agreement, any amendment or modification of this Agreement must be in writing and agreed upon by the parties.
All notices shall be writing and are deemed to be given up 1) personal delivery; 2) the second day after mailing notice to the other party's last known address; or 3) the first day after sending an email to the other party's last known email address.
Licensor shall, so long as Licensee is not in breach of this Agreement, provide online support via email during normal business hours 8:30 a.m. - 5:00 p.m. (CST) to answer questions regarding the Licensed Software. Licensor will use commercially reasonable efforts to answer questions regarding the Licensed Software during normal business hours in as timely a manner as is reasonably practicable. Licensor does not offer any service level agreements or guarantees regarding the Licensed Software, and Licensor shall not be liable for any delays in responding to Licensee's inquiries. Licensee hereby acknowledges that Licensor may, from time to time, release or license new versions of the Licensed Software or otherwise upgrade the Licensed Software. The license granted to Licensee hereunder applies to any such upgrades and/or new versions to the extent such upgrades and/or new versions are generally made available by Licensor to licensees of the Licensed Software. Nothing herein shall be deemed to obligate Licensor to upgrade and/or improve the Licensed Software at any time.
(d) Force Majeure.
Neither party shall be liable for delay or failure in the performance of its contractual obligations arising from any one or more events which are beyond its reasonable control. Notwithstanding the foregoing, said delay or failure in performance is only "excusable" to the extent that it is not the result of a party's own fault or negligence.
(e) Successors and Assigns.
Neither party shall assign this Agreement, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign any part of this Agreement, in whole or in part, to any parent company or successor corporation resulting from a merger, sale, operation of law, reorganization or consolidation of such party or to an entity which acquires that party's business without the consent of the other party.
(f) Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement.
(g) Governing Law.
The validity, construction, and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Iowa without giving effect to its conflict of law principles.
(h) Exclusive Jurisdiction.
Any dispute arising out of this Agreement shall be submitted exclusively to a court of competent jurisdiction in Polk County, Iowa. Licensee agrees the exclusive jurisdiction is appropriate and waives any rights to have a court in a different jurisdiction hear the case.
(i) Waiver of Jury Trial.
The parties to this Agreement waive their rights to a jury trial.
If any provision of this Agreement is held by a court to be contrary to the law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
(k) Use of Third-Party Providers.
It is understood that Licensor may use third party providers in providing certain aspects of the Service to Licensee.
(l) Entire Agreement.
This Agreement constitutes the entire agreement between the parties in connection with the subject matter and supersedes all prior and contemporaneous agreements, understandings, any other negotiations and discussions, whether electronic, oral or written, of the parties with respect to the same subject matter hereof.
The parties have agreed to the terms and conditions of this Agreement on the date of the electronic acceptance by Licensee.