This Subscription Agreement (this “Agreement”) governs the use of and access to the Subscription Services (as defined herein), including the Addium Mobile Application and Addium’s websites, web-based
applications and mobile and desktop applications. This Agreement is also attached to and incorporated by reference into any Order Form between Addium, Inc. (“Addium”) and the customer identified on the
applicable Order Form (“Customer”) (each a “Party,” and, together, the “Parties”). Capitalized terms used but not defined herein shall have the meaning assigned to them in the Order Form or the Standard Terms
and Conditions.
“You” means the entity you represent in accepting this Agreement or, if that does not apply, you individually. This Agreement is effective as of the date you first click “I agree” (or similar button or checkbox) or use or access the Subscription Services or the Addium Mobile Application, whichever is earlier (the “Effective Date”). This Agreement does not have to be signed in order to be binding. You indicate your assent to this Agreement by clicking “I agree” (or similar button or checkbox) at the time you register for or access the Subscription Services or the Addium Mobile Application, create an account to access the Subscription Services or the Addium Mobile Application, or enter into an Order Form. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer or such entity to this Agreement; (b) you have read and understand this Agreement; and (c) you agree to this Agreement on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click “I agree” (or similar button or checkbox) that is presented to you. Please note that if you create an account or access the Subscription Services or the Addium Mobile Application using an email address from your employer or another entity, then (a) you will be deemed to represent such party, (b) your click to accept the “I agree” (or similar button or checkbox) will bind the employer or that entity to this Agreement, and (c) that entity will be the Customer.
You agree that from time-to-time Addium may modify this Agreement and that any such changes shall become effective immediately.
IMPORTANT: If You do not agree to these Terms, do not access or use the Subscription Services or the Addium Mobile Application and do not click “I agree” (or similar button or checkbox).
“Addium IP” means the Subscription Services, the Documentation, the Addium Mobile Application and Usage Data, and any other intellectual property provided to Customer or any User in connection with the foregoing.
“Addium Mobile Application” means a software application that may be downloaded by Customer through Addium websites, software platforms or marketplaces from time to time, including the Apple® App Store® or Google Play Store®, and loaded onto an iPad® or other mobile device on which the then-current Addium Mobile Application has been designed to and is permitted to run.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” means possession of the power to direct the management and policies, including through the legal or beneficial ownership of fifty percent (50%) or more of the voting securities or interest in the subject entity.
“Customer Data” means all information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or a User to Addium, including through the Subscription Services, or that is generated for Customer by the Subscription Services.
“Documentation” means Addium’s user guides, documentation, policies, and training materials, as updated from time to time, accessible via the applicable Subscription Services.
“Hardware Products” means any equipment, hardware, products, materials or other tangible goods that
are purchased or leased by Customer pursuant to an Order Form.
“Subscription Services” means Addium’s proprietary hosted products and software solutions made
available through a software-as-a-service platform, as may be modified, enhanced and/or updated from time to time.
“Subscription Term” means the fixed term set forth in the applicable Order Form during which Customer will have access to the Subscription Services purchased under that Order Form.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Subscription Services that are not proprietary to Addium.
“Usage Data” means all data, content, statistics, and information related to Customer’s use of the Subscription Services that has been either de-identified or aggregated such that neither Customer, nor any User or individual may be identified.
“Users” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Subscription Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Subscription Services has been purchased under an Order
Form.
2.1. Order Forms and Standard Terms and Conditions. Addium and Customer may enter into order forms from time to time, which will each be executed by Customer and Addium and will specify the applicable Subscription Services purchased and the applicable Fees and Subscription Term for the Subscription Services (each, an “Order Form”). Each Order Form referencing this Agreement shall be deemed a part of this Agreement and incorporated herein by reference. In addition, Addium’s Standard Terms and Conditions of Sale and License located at Addium Terms and Conditions (the “Standard Terms and Conditions”) are hereby expressly incorporated into this Agreement.
2.2. Fees and Payment. Customer must pay all fees, expenses and other amounts specified in this Agreement and any applicable Order Form(s) (the “Fees”), in accordance with the payment and invoicing terms set forth in the applicable Order Form(s) and the Standard Terms and Conditions.
2.3. Subscriptions and True up. Except as otherwise provided in the applicable Order Form: (a) Subscription Services are purchased for the Subscription Term stated therein; and (b) additional subscriptions may be added during a Subscription Term at the same pricing as the underlying subscription and shall be co-terminated and prorated for the remainder of the applicable Subscription Term. Subscription quantities cannot be decreased during a Subscription Term without Addium’s express written agreement, which may be withheld or given at Addium’s sole discretion.
2.4. Suspension. In addition to any other rights or remedies Addium may have under this Agreement or at law or in equity, Addium may temporarily suspend Customer’s access to any portion or all of the Subscription Services upon written notice, without liability to Customer, if (a) Customer’s account is more than thirty (30) days past due; or (b) Addium determines, in its sole discretion, that (i) Customer’s use of the Subscription Services disrupts or poses a security risk to the Subscription Services or to any other customer or vendor of Addium; (ii) Customer is using the Subscription Services or Documentation for fraudulent or illegal activities; (iii) the Subscription Services are being deliberately used in an unsafe or harmful manner, or (iv) Customer or a User is using the Subscription Services in a way that may subject Addium, its Affiliates, employees, officers, directors, contractors, other representatives, or any third party to liability.
2.5. Term. The term of this Agreement will commence on the Effective Date and will remain and continue in effect, unless sooner terminated, as provided in this Agreement. Except as otherwise provided in an Order Form, subscriptions will automatically renew for additional renewal Subscription Terms of one (1) year each, unless either Party gives the other written notice at least thirty (30) days prior to the end of the current Subscription Term. Fees for any renewal Subscription Terms will be at the list price for the Subscription Services in effect at the time of such renewal.
2.6. Termination.
(a) By Addium. Addium may terminate this Agreement and any Order Form(s), effective on written notice to Customer, if: (i) Customer fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Addium’s delivery of written notice thereof; (ii) Customer breaches any of its obligations under Section 4 (Obligations and Restrictions) or Section 3.4 (Addium IP) of this Agreement; or (iii) within five (5) days after Addium has suspended Customer’s access to the Subscription Services as described in Section 2.4 (Suspension), Customer has not remedied the event or issue giving rise to the suspension to Addium’s satisfaction.
(b) By Either Party for Cause. Either Party may terminate this Agreement, effective on written notice to the other Party, if (i) the other Party materially breaches this Agreement, and if capable of cure, such breach remains uncured for thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) the other Party (1) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (2) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (3) makes or seeks to make a general assignment for the benefit of its creditors; or (4) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) By Either Party with no Active Subscriptions. Either Party may terminate this Agreement, effective upon written notice to the other Party, so long as there are no active Subscription Terms currently in effect under any Order Form.
2.7. Effect of Termination. Upon any termination or expiration of this Agreement, any applicable Order Form, or any subscription or Subscription Term, Customer must, as of the date of such termination or expiration, immediately cease accessing or otherwise utilizing the Subscription Services and the Addium IP. Customer shall delete, destroy, or return all copies of the Addium IP and certify in writing to the Addium that the Addium IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
2.8 Survival. The following provisions shall survive any expiration or termination of this Agreement: Sections 1, 2, 3.4, 3.5, 3.6, 3.7, 4, 5.3, 6, and 7, and any other provisions that by their terms are intended to survive.
2.9 Customer Data Retention and Return. Upon the termination or expiration of a Subscription Term, applicable Customer Data may be preserved for up to ninety (90) days thereafter (the “Retention Period”). During the Subscription Term or the Retention Period, within thirty (30) days of receipt of Customer’s written request, Addium will facilitate electronic delivery of any Customer Data in the Subscription Services to Customer in Addium’s standard database export format at no additional charge. After the Retention Period, the Customer Data may be permanently deleted from Addium’s servers and will be irrecoverable by Customer. Customer hereby acknowledges and agrees that Addium shall have no obligation to retain Customer Data after the Retention Period unless otherwise required by Applicable Laws. If Customer begins a new Subscription Term pursuant to an Order Form prior to the end of the Retention Period, Customer Data shall remain available to Customer in accordance with this Agreement.
3.1 Access Grant. Subject to the terms of this Agreement, Addium grants to Customer a limited, revocable, nonexclusive, nontransferable, nonassignable, nonsublicensable (a) right to access and use the Services during the Subscription Term, solely for use by Users in accordance with the terms and conditions herein; and (b) license to use the Documentation during the Subscription Term in connection with its use of the Services. The foregoing right and license are limited to Customer’s internal use.
3.2 Service Levels. Addium will use commercially reasonable efforts to make the Services available in accordance with the service levels set out in Addium’s standard Service Level Agreement, available on request.
3.3 Third-Party Materials. As a condition precedent to installing or accessing any Third-Party Materials (if any), Customer may be required to execute a click-through, shrink-wrap End User License Agreement (EULA) or similar license agreement provided by the Third-Party Materials provider. Customer’s use of such Third-Party Materials is subject to the applicable third-party license terms and conditions. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to the Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Third-Party Materials are and will remain with the respective rights holders in the Third-Party Materials.
3.4 Addium IP. Addium reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Addium IP. Customer acknowledges that, as between Customer and Addium, Addium owns all right, title, and interest, including all intellectual property rights, in and to the Addium IP.
3.5 Customer Data. Addium acknowledges that, as between Addium and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants Addium a worldwide, perpetual, nonexclusive, royalty-free, fully paid-up, assignable, transferable, sublicensable right and license to host, store, transfer, display, perform, reproduce, modify, use, distribute and create derivative works of Customer Data, solely to provide the Subscription Services to Customer and to create or generate Usage Data.
3.6 Usage Data. Notwithstanding anything to the contrary in this Agreement, Addium may monitor Customer’s use of the Subscription Services and collect, compile, and generate Usage Data, including from Customer Data. The Parties acknowledge and agree that Addium (i) owns all right, title, and interest, including all intellectual property rights, in and to the Usage Data, and (ii) may use the Usage Date for any purpose, including diagnostic and corrective purposes in connection with providing technical and customer support, to deliver performance insights, and to analyze, enhance and improve its products and services and develop new products and services, in each case with the aim of assisting Addium’s customers achieve their desired outcomes.
3.7 Feedback. Customer acknowledges and agrees that Addium may, at its discretion and for any purpose, use, modify, and incorporate into the Subscription Services any feedback, comments, or suggestions Customer or Users provide to Addium (collectively, “Feedback”), without any obligation to Customer or Users, although Addium is not required to use any Feedback.
4.1 Confidentiality and Data Security. The Parties shall comply with the obligations of confidentiality set forth in the Standard Terms and Conditions. Addium will implement commercially reasonable technical and organizational measures designed to secure the confidentiality, and security of the Subscription Services and any Customer Data.
4.2 General Restrictions. Customer shall not (and shall not allow any third party, including Users, to): (a) copy, modify, adapt, translate, or otherwise prepare derivative works or improvements of the Subscription Services or Documentation, or incorporate the Subscription Services or Documentation into or with other software; (b) distribute, sell, sublicense, rent, lease or use the Subscription Services or Documentation (or any portion thereof) for time sharing or similar purposes, or otherwise make the Subscription Services available to any third party; (c) frame, scrape, or mirror any content forming part of the Subscription Services; (d) use the Subscription Services to store or transmit any software, code, files, scripts, agents, or programs intended to do harm, including viruses, worms, time bombs, and Trojan horses; (e) interfere with or disrupt the integrity or performance of the Subscription Services; (f) bypass or breach any security device or protection used for or contained in the Subscription Services or otherwise attempt to gain unauthorized access to the Subscription Services or its related systems or networks; (g) decompile, disassemble, or otherwise reverse engineer the Subscription Services or attempt to reconstruct or discover any source code, APIs, underlying ideas, algorithms, file formats, data or programming interfaces of the Subscription Services by any means whatsoever; (h) remove, alter, obscure, or otherwise change any proprietary or other notices from the Subscription Services or Documentation; (i) use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any Applicable Laws; (j) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Subscription Services; or (k) use the Subscription Services or Documentation for purposes of: (i) benchmarking or competitive analysis of the Subscription Services; (ii) developing, using, or providing a competing software product or service; or (iii) any other purpose that is to Addium’s detriment or commercial disadvantage.
4.3 Customer Compliance. Customer will use the Subscription Services only in accordance with this Agreement, the Documentation, the applicable Order Form(s), and Applicable Laws. Customer hereby represents and warrants to Addium that: (a) it has sufficient rights in the Customer Data to authorize Addium to use the Customer Data as contemplated by this Agreement; (b) the Customer Data and its use hereunder will not violate or infringe the rights of any third party; and (c) Customer’s use of the Subscription Services and all Customer Data is at all times compliant with its own privacy policies and all Applicable Laws, including without limitation those related to data privacy, international communications and the exportation of technical or personal data.
4.4 Credentials. Users may be assigned a unique PIN by Addium; otherwise, each User must create their own unique username and password (collectively, the “Credentials”). Credentials are specific to each User and may not be shared with or transferred to any other person. Addium reserves the right to refuse to register any username or cancel any password that it deems inappropriate. Users are responsible for maintaining the confidentiality of the Credentials. Customer will ensure that all Users log out of the Subscription Services at the end of each session, and Customer will immediately notify Addium if it knows or suspects that a User’s Credentials have been used by any other person (including other employees of Customer). Customer will ensure that (a) Users only access the Subscription Services using their appropriate User-specific Credentials and (b) no other person (including other employees of Customer) will access the Subscription Services without using Credentials that have been specifically assigned to that person.
4.5 Users. Customer is responsible and liable for all uses of the Subscription Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in
violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its Users, and any act or omission by a User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will ensure that all Users are aware of this Agreement’s provisions and will cause Users to comply with such provisions. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services and will notify Addium promptly upon discovering any such unauthorized access or use.
4.6 Hardware Products and Customer Equipment. Customer acknowledges and agrees that certain Hardware Products are required for use of the Subscription Services. Customer shall be responsible for obtaining and maintaining these Hardware Products, and any other materials, equipment and ancillary services needed to prepare its premises for installation of the Hardware Products, and to connect to, access or otherwise use the Subscription Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Customer Equipment”). Customer shall also be responsible for maintaining the security of the Customer Equipment and for all uses of the Customer Equipment, with or without Customer’s knowledge or consent. Customer shall be responsible for any damages or injuries caused by the Customer Equipment. Customer acknowledges that if Customer fails to maintain the Hardware Products and Customer Equipment, such failure may negatively affect performance of the Subscription Services, and Customer further acknowledges and agrees that Addium will not be responsible for any deficiencies in the performance of the Subscription Services, or for any damages or injuries caused by such failure.
5.1 Limited Warranties. Addium warrants that, during the Subscription Term, (a) the Subscription Services shall perform materially in accordance with the Documentation; and (b) Addium will not materially decrease the overall functionality of the Subscription Services to which Customer has subscribed. Notwithstanding the foregoing, Customer acknowledges the Subscription Services are anonline, subscription-based product, and to provide improved customer experience Addium may make changes to the Subscription Services, and Addium will update the Documentation accordingly. In the event of any breach of the foregoing warranties during the Subscription Term, Addium shall, as its sole liability and Customer’s sole and exclusive remedy for such breach, use commercially reasonable efforts to remedy such deficiencies. If Addium determines that it is unable to remedy any deficiencies, Addium may terminate that portion of the applicable Order Form affected and refund to Customer a pro rata amount of any Fees actually pre-paid by Customer to Addium for the unused Subscription Term of the defective portion of the Subscription Services.
5.2 Exclusions. The limited warranties described in Section 5.1 above will not apply (a) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared; (b) if the claim results from an alteration or other modification of the Subscription Services or Documentation by any person or entity other than Addium; (c) if the Subscription Services are used with hardware or software not authorized in the Documentation; (d) if the claim results from Customer Equipment or Customer’s failure to obtain or maintain any necessary Hardware Products; or (e) if the claim results from Customer’s acts or omissions.
5.3 DISCLAIMER. EXCEPT THE FOR SPECIFIC WARRANTIES SET FORTH IN THIS SECTION, ADDIUM PROVIDES THE SUBSCRIPTION SERVICES AND DOCUMENTATION “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” THE SUBSCRIPTION SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INCLUDINGWITHOUT LIMITATIONTHOSE INHERENT INTHEUSEOF SAAS, CLOUDCOMPUTING, THE INTERNET, AND ELECTRONIC COMMUNICATIONS, AND ADDIUM SHALL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES,OROTHER DAMAGE RESULTING FROM SUCHPROBLEMS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT THE FOR SPECIFIC WARRANTIES SET FORTH IN THIS SECTION, ADDIUM MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SUBSCRIPTION SERVICES AND DOCUMENTATION WILL BE UNINTERRUPTED, ERROR-FREE,OR FREE OF HARMFUL COMPONENTS; THAT THE CUSTOMER DATA OR ANY OTHER DATA WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; ANY WARRANTY (WHETHER EXPRESS, IMPLIED, OR STATUTORY) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT; OR ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
6.1 Indemnification. Customer will defend, indemnify, and hold Addium and its Affiliates, and their officers, directors, employees and agents harmless against any loss, damage, or costs (including reasonable attorneys’ fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Addium by a third party based upon or related to (a) allegations that the Customer Data infringes the rights of (including the intellectual property rights or any privacy rights), or has caused harm to, a third party; or (b) Customer’s breach of Section 4 (Obligations and Restrictions); provided that Addium (i) promptly gives written notice of the Claim to Customer; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Addium of all liability); and (iii) provides to Customer, at Customer’s cost, all reasonable assistance. Customer is not responsible for any settlement it does not approve in writing.
6.2 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, BUT SUBJECT TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, STATUTE OR OTHER LEGAL OR EQUITABLE THEORY, (A) NEITHER ADDIUM NOR ANY OF ITS AFFILIATES OR SUPPLIERS IS LIABLE FOR (I) ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, CONTRACTS, BUSINESS, REVENUES, GOODWILL OR REPUTATION, (II) COST OF COVER OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (III) LOSS OR CORRUPTION OF DATA, INTERRUPTION OF USE, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM CUSTOMER’S USE OF (OR INABILITY TO ACCESS OR USE) ANY PRODUCT OR SERVICE, AND (B) THE AGGREGATE LIABILITY OF ADDIUM AND ITS AFFILIATES AND SUPPLIERS WILL NOT EXCEED THE AGGREGATE FEES RECEIVED BY ADDIUM FROM CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF ADDIUM IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
7.1 Entire Agreement; Amendment. This Agreement (including any exhibits, attachments, schedules, or addenda), the Order Form(s), the Standard Terms and Conditions, and any applicable online terms
referenced herein constitute the entire agreement between Customer and Addium regarding the Subscription Services, and this Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Customer agrees that from time-to-time Addium may modify this Agreement and that any such changes shall become effective immediately. Any other changes to this Agreement may only be made by a written amendment executed by duly authorized officers or representatives of both Parties.
7.2 Injunctive Relief. Customer acknowledges that any breach of its obligations under Section 4 (Obligations and Restrictions) or its obligations respect to intellectual property rights or Confidential Information may cause irreparable injury to Addium for which the remedies at law are inadequate and therefore Addium will be entitled to seek immediate equitable relief, without requirement of posting= bond and without the necessity of showing actual money damages, in addition to all other remedies provided by this Agreement or available at law or in equity.