WHEREAS, We are in the business of providing Subscription
Services, which support our Software; and
WHEREAS, You desire to purchase such Subscription Services;
NOW, THEREFORE, in consideration of the promises and
covenants contained herein the parties agree as of the Effective Date to the
“Acceptable Use Policy” and/or “AUP”
shall mean the set of rules and restrictions that set forth the proper way for
You and Your Users to utilize Our Subscription Services, a copy of which is
located at www.freestylesolutions.com/company/terms-and-conditions/,
which is hereby incorporated by reference. Additionally, We may update such
adopted rules from time to time on Our Web Site. You and all Users shall be
bound by any such adopted rules.
“Hosted Software” shall mean Our Software or
Third-Party Software, which You may access via the Subscription Services.
“Order” is an individual transaction between
You and a third party, which is processed using Our Subscription Services.
“Our Content” shall mean text, audio, video,
graphics and other information and data available by means of the Service or on
Our Web Site(s).
“Provisioning Date” shall mean the calendar
day that We allocate and enable You to assign User IDs for use with the
“Subscription Service(s)” shall mean Our
hosted on-demand services offering, which allows You and your Users to access the
Hosted Software, as further detailed in an applicable Quotation.
“Subscription Term” shall mean the contiguous
period of time commencing upon the Provisioning Date and continuing as set
forth in the applicable Quote.
“Web Site” shall mean the contents of the
collection of web pages located at the URL (www.freestylesolutions.com) and
the Internet domain name FREESTYLESOLUTIONS.COM.
“Your Data” shall mean data, information or
material provided or submitted or stored on Our Subscription Services by You or
any User in the course of using Our Service(s).
2. Hosted License Grant & Restrictions.
2.1 Hosted License Grant. So long as You are
current on your payments of all applicable Subscription Fees, as reflected in
the applicable Quote, We hereby grant to You and You accept, a limited
nonexclusive, non-transferable license to (i) access and use the
Subscription Services during the
Subscription Term via the Internet
under and subject to the terms and conditions of this Schedule; (ii) store,
print, and display Our Content and to permit Users to access Our Content only
in connection with their use of the Service.
No other use of Our Content is permitted.
2.2 Restrictions. You specifically agree to limit Your and the
Users’ use of the Subscription Services to those specifically granted in this Schedule.
Without limiting the foregoing, You specifically agree not to (i) attempt to
reverse engineer, decompile, disassemble, or attempt to derive the source code
of the Hosted Software or any portion
thereof; (ii) modify, port, translate, localize or create derivative works of
the Hosted Software; (iii) remove any of
Our, or Our vendor’s, copyright notices and proprietary legends (iv) use the Hosted
Software (a) to infringe on the intellectual property rights of any third party
or any rights of publicity or privacy, (b) to violate any law, statute,
ordinance or regulation (including but not limited to the laws and regulations
governing export/import control, unfair competition, anti-discrimination and/or
false advertising), (c) to propagate any virus, worms, Trojan horses, service
attacks such as DDOS, attempt to hack into Hosted Software or Subscription Service(s)
to access unauthorized data or data not belonging to You or other programming
routine intended to damage any system or data, (d) in any application that may
involve risks of death, personal injury, severe property damage or
environmental damage, or in any life support applications, devices or systems,
or (e) such that the total number of Users in excess of the total Users
allocated to You or the total number of Orders per month in excess of the total
Orders allocated to You, as reflected in the applicable Quote; (v) to file
copyright or patent applications that include the Hosted Software or any
portion thereof; and/or (vi) to initiate or cause to be initiated any load
testing, penetration testing, vulnerability scans, URL manipulation, SQL
injections system attacks, cross-site scripting attacks, session hijacking,
clickjacking and/or any other malicious, detrimental or nonproductive resource
consuming scans upon the Subscription Services or Our (or Our vendor’s)
computer information systems networks.
2.3 Limited License to Your Data. Subject to
the terms and conditions of this Schedule, You hereby grant Us and/or Our suppliers
a limited non-exclusive non-transferable license to Your Data only to the
extent necessary for Us or Our suppliers to perform the obligations set forth
in this Schedule. You hereby authorize
Us to use Your Data to perform the Subscription Services pursuant to this Schedule
and for statistical uses; provided, however, that such data is not identifiable
to You or Your Users. In the event that
We need to access Your Data to respond to any technical problems, queries, or
requests from You or the Authorized Contacts, You shall ensure that We are
permitted to do so.
3. Operational Concerns.
3.1 Subscription Services & Support. In
exchange for prompt payment of the Subscription Fees and any other fees set
forth in the applicable Quote, so long as You are not in material breach of any
section of this Schedule, We shall (a) make available to You and Your Users the
Hosted Software indicated in the applicable Quote on a hosted on-demand basis,
(b) provided that You are current on the
Maintenance Fees, We will provide standard support for the purchased
Subscription Services at no additional charge, and/or upgraded support if
purchased, and (c) use commercially reasonable efforts to make the Subscription
Services available to You and Your Users twenty-four (24) hours a day, seven
(7) days a week, excluding (i) planned
downtime, and (ii) any unavailability caused by circumstances beyond Our
reasonable control, including, for example, an act of God, act of government,
flood, fire, earthquake, civil unrest, act of terror, strike or other labor
problem (other than one involving Our employees), Internet service provider
failure or delay, or denial of service attack. We reserve the right to make
changes and updates to the functionality and/or documentation for the Hosted
Software and the Subscription Services from time to time; and to suspend the
Subscription Services for regularly schedule maintenance periods.
3.2 Password Security. You are responsible for maintaining the
security and confidentiality of all usernames, identification numbers,
passwords and access keys. You shall not
disclose or make available Your or Your Users’ passwords other than to the
Authorized Contacts and You agree to use best efforts to prevent unauthorized
access to, or use of, the Subscription Services. In the event that You make such passwords
available to any third party, as between Us, Our suppliers, You and the Users,
You shall be solely liable for all actions taken by any third party and resulting
consequences. You agree to notify Us
immediately of any unauthorized use, loss or theft of any username, password or
access key, or any other known or suspected breaches of security.
3.3 Appropriate Use of the Subscription Services.
While Subscription Services may be used by You and the appropriate User(s), You
may not sublicense, resell or supply the Subscription Service for use in or for
the benefit of any other organization, entity, business, or enterprise without
Our prior express written consent. You agree not to submit to the Subscription
Services any material that is illegal, misleading, defamatory, indecent or
obscene, in poor taste, threatening, infringing of any third-party proprietary
rights, invasive of personal privacy, otherwise objectionable or in violation
of Our AUP (collectively “Objectionable Matter”). You will be responsible to
ensure that Your User(s) do not submit any Objectionable Matter. In addition,
We reserve the right to remove any data that constitutes Objectionable Matter
or violates any of Our rules regarding appropriate use; however, we are not
obligated to do so. You and Your Users will comply with all applicable laws
regarding Your Data, use of the Subscription Service and Our Content, including
laws involving private data and any applicable export controls. We reserve the
right to terminate this Schedule for cause in case You our Your Users’
materially breach the provisions of this section.
3.4 Your Data. You will have sole
responsibility for the accuracy, quality, integrity, legality, reliability,
appropriateness of and copyright permissions for all of Your Data. We will not
use Your Data for any purpose other than to provide the Subscription Service(s)
to You, Your Users, quality control, improvements to the Subscription Services
and for statistical reporting purposes.
3.5 Termination or Suspension of Subscription
Services. We reserve the right to suspend or terminate, immediately without
notification, Your or any individual User’s access to the Subscription Service
that, which in Our reasonable opinion, (i) is or has the potential to
disrupting or causing harm to Our or any third-party’s computers, networks,
systems or infrastructure; (ii) is in violation of the AUP; (iii) is in
violation of state federal and/or international laws/policies regarding “spam,”
including, without limitation, the CAN-SPAM Act of 2003; (iv) is in violation
of state, federal and/or international laws/policies regarding data protection;
(v) may have an adverse or detrimental effect upon Our or any third-party’s
equipment, security network infrastructure, or service(s); (vi) a court or
other governmental authority having jurisdiction issues an order prohibiting Us
from furnishing the Subscription Services to You or Your Users; or (vii) You
fail to pay undisputed charges for the Subscription Services after being given
notice; provided, however that Subscription Fees will continue to accrue
notwithstanding any such suspension; and/or (viii) violates Section 2 “Hosted License
Grant & Restrictions” or Section
3.3 “Appropriate Use of the Subscription Services”.
4. Prices and Payment.
The prices for the Subscription Services, including but not limited to
Subscription Fees, Set-Up Fees, Nonrecurring Fees, and Professional Services
Fees are set forth in the applicable Quote (collectively referred to as
All invoices shall be paid by credit card, or other electronic payment
method as may be available, on the date indicated on the Quote and for each
recurring billing date. We may impose credit card decline charges or late
charges on overdue payments at a rate equal to the lesser of one and one-half
percent (1.5%) per month or the highest rate legally permitted by law,
calculated from the date payment was due until the date payment is made plus all
expenses incurred in collection, including reasonable attorneys’ fees. In addition to other applicable remedies, if
Your account becomes delinquent (falls into arrears), We reserve the right to
suspend and/or terminate Your use of the Subscription Services, upon five (5)
days' prior written notice via email or otherwise. Upon default by You, We
shall have other rights and remedies as may be provided by law. If access to the Subscription Services is
withheld in accordance with the foregoing, in order to reinstate such
Subscription Services, You shall be responsible for paying all Subscription
Service Fees from the date that such Subscription Service Fees were delinquent
through to the then-current date and any outstanding amounts accrued hereunder.
Except in the event of Termination for Material Breach under Section 8.3 “Termination
for Material Breach”, You acknowledge and agree that all prepaid Fees are
4.3 Taxes. All Fees are exclusive of sales,
use, value-added or other excise tax, however designated or levied, and
therefore, are subject to an increase in an amount equal to any tax. You shall
be liable for payment of all local state and federal sales, use, excise,
personal property or other similar taxes or duties that are levied upon and related
to the performance of obligations or exercise of rights under this Schedule. We may be required to collect and remit taxes
from You, unless You provide Us with a valid tax exemption certificate. We will invoice You for all such taxes based
on Subscription Services provided hereunder.
In no event will either party be responsible for any taxes levied
against the other party's net income.
5. Intellectual Property & Protections.
We shall have sole and exclusive ownership of all
right, title, and interest in and to the Our Content, documentation,
Subscription Services, Hosted Software, Web Site and all copies thereof
including all derivations, modifications and enhancements thereto (including
but not limited to ownership of all intellectual property rights). This Schedule does not provide You or Your
Users with title or ownership of Our Content, documentation, Subscription
Services, Hosted Software and Web Site, but only a right of limited use, as
All Your Data submitted to Us, whether provided by
You or by Users, will remain Yours or such Users’ property, to the full extent
provided by law.
. THE SUBSCRIPTION SERVICES ARE PROVIDED ON AN “AS
IS” AND “AS AVAILABLE” BASIS. WE SHALL HAVE NO LIABILITY FOR THE SUBSCRIPTION
SERVICES PROVIDED IN FURTHERANCE OF THIS SCHEDULE. WE MAKE AND YOU RECEIVE
WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS SCHEDULE
OR ANY OTHER COMMUNICATION; AND WE SPECIFICALLY DISCLAIM ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE
DO NOT WARRANT THAT USE OF THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED. WE ARE
NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY YOU OR USERS OR FOR THE
OPERATION OR PERFORMANCE OF THE INTERNET OR ANY HARDWARE AND/OR NETWORK DEVICES
OWNED OR USED BY YOU. The Subscription Services may include gateways, links or
other functionality that allows You and/or Your User(s) to access third-party
services (“Third Party Services”) and/or third-party software, content and
materials (“Third Party Materials”). We are
not responsible for any Third Party Services or Third Party Materials, which
may be subject to their own licenses, end-user agreements, privacy and security
NO WARRANTY AS TO THIRD PARTY SERVICES OR THIRD PARTY MATERIALS.
7. Severability & Survival. The illegality or unenforceability of any
provision of this Schedule shall not affect the validity and enforceability of
any legal and enforceable provisions hereof. Should any provision of this Schedule
be deemed unenforceable by a court of competent jurisdiction then such clause
shall be re-construed to provide the maximum protection afford by law in
accordance with the intent of the applicable provision. The following
provisions shall survive any termination of this Schedule; 4, “Prices &
Payment”; 5, “Intellectual Property & Protections”; 6, “No
Further Warranties”; and 9, “Post-Termination Procedures”.
8.1 Term. This Schedule shall commence upon
the Effective Date, as indicated in the Quote and continue until the end of the
Subscription Term(s), as defined in the applicable Quote(s); thereafter, this
Schedule shall, continue on a Subscription Term-to-Subscription Term basis at
Our then-current commercially available rates for the applicable Subscription Services,
until (i) this Schedule and all Quotes are terminated under Sections 8.2 “Termination
for Convenience”, or Section 8.3 “Termination for Material Breach”,
or (ii) either party terminates all then-current Quote(s) hereunder by
providing the other party notice of such party’s intent to not renew such Quote
(“Term”), such notice must be provided, in writing (specifically excluding
email), no less than ninety (90) days
prior to the end of the then-current applicable Subscription Term(s). In no
event shall this Schedule be considered terminated until such time that all
Quotes hereunder have been terminated. If not terminated in accordance with
this Section 8 “Termination”, each Quote hereunder shall automatically
renew on a Subscription Term-to-Subscription Term basis.
8.2 Termination for Convenience. Unless
otherwise stated in the applicable Quote, either party may terminate any
applicable Quote for convenience after the conclusion of the initial Subscription
Term, as defined therein, by providing not less than ninety (90) days prior
written notice. If the applicable Quote provides
for ongoing payments during the Subscription Term, and You terminate prior to
the end of the Subscription Term under this Section 8.2 “Termination for
Convenience”, You agree to pay one hundred (100%) percent of the remaining
Subscription Fees that would have become due during the remainder of the
Subscription Term. Such payment shall be
due in full upon termination.
8.3 Termination for Material Breach. This Schedule,
or any individual Quote hereunder and related licenses may be terminated by
either party upon thirty (30) days prior written notice for a material breach
by the other party, unless such other party cures the breach within the thirty
(30) days’ notification period. You agree upon any termination to certifying
that You shall no longer access the Subscription Services. Termination of this Schedule
does not relieve You of any outstanding payments due or any liability arising
prior to termination.
9. Post-Termination Procedures.
In the event that this Schedule is terminated, for
any reason, We will make available one (1) database export, pursuant to the
terms outlined in the applicable Quote, of Your Data in Our standard format
downloadable via a secure FTP
transfer. You agree and acknowledge that We have no obligation to retain and
may delete Your Data that remains in Our possession or control more than ten (10)
days after any termination of this Schedule and/or an individual Quote. You
shall pay Our applicable charges on a time-and-materials basis at Our
then-current rates for any post-termination support beyond that stated in this
Section 9, “Post-Termination Services”.