FREESTYLE SOLUTIONS SUBSCRIPTION AGREEMENT
This Freestyle Commerce Subscription Agreement (“Agreement”) governs Your use of Our Services. The terms “Our”, “Us” or “We” refer to Freestyle Solutions, Inc. a Delaware Corporation having principal offices at 9 Campus Drive, Parsippany NJ 07054.
By accepting this Agreement, either by clicking a box indicating your acceptance or by executing a Quote that references this Agreement, You agree to the terms of this Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with the terms and conditions of this Agreement, you must not accept this Agreement and may not use Our Services.
WHEREAS, We are in the business of providing software solutions and
NOW, THEREFORE, in consideration of the promises and covenants the following is agreed as of the Effective Date of this Agreement:
“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 hosted service and for permitted and appropriate use of the Service by You, 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.
“Authorized Contact(s)” shall mean the named individual trained in the use of the Software as identified by You as having security authorization to contact Our Technical Support Department in order to report problems and seek assistance in the use of the Service.
“Quote” shall mean the document or collection of documents, which indicates the length of the Subscription Term, the number of Users authorized to access the Service, the maximum number of Orders per month to be processed using the Services, Authorized Contacts, Subscription Fees and any other fees, which incorporates this Subscription Agreement by reference.
“Order” is an individual transaction between You and a third party, which is processed using Our 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 under the Internet domain name FREESTYLESOLUTIONS.COM.
“Provisioning Date” shall mean the calendar day that We allocate and enable You to assign User IDs for use with the Service.
“Software” shall mean Our software applications, which You may access via the Services.
“Service(s)” shall mean Our hosted on-demand services offering, which allows You and your Users to access Our Software.
“Subscription Term” shall mean the contiguous period of time commencing one (1) month after the Provisioning Date and continuing as set forth in the applicable Quote.
“Support Services” shall mean the standard technical support services offered by Us to You at no additional charge, and/or upgraded support if purchased by You.
“User(s)” shall mean any person(s) assigned a unique user identification that can access Our Services.
“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 Service by You or any User in the course of using Our Service(s).
- License Grant & Restrictions.
2.1 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 Services during the Subscription Term via the Internet under and subject to the terms and conditions of this Agreement; (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 Services to those specifically granted in this Agreement. 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 Software or any portion thereof; (ii) modify, port, translate, localize or create derivative works of the Software; (iii) remove any of Our, or Our vendor’s, copyright notices and proprietary legends (iv) use the 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 Software or Service 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 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 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 Agreement, 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 Agreement. You hereby authorize Us to use Your Data to perform the Services pursuant to this Agreement 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.
- Operational Concerns.
3.1 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 Agreement, We shall (a) make available to You and Your Users the Software indicated in the applicable Quote on a hosted on-demand basis, (b) provide standard support for the purchased Services at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the Services available to You and Your Users twenty-four (24) hours a day, seven (7) days a week, excluding planned downtime and 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 Software and the Services from time to time; and to suspend the 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 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 Services. While Services may be used by You and the appropriate User(s), You may not sublicense, resell or supply the 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 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 Service and Our Content, including laws involving private data and any applicable export controls. We reserve the right to terminate this Agreement for cause in case You or 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 Service(s) to You, Your Users, quality control, improvements to the Services and for statistical reporting purposes.
3.5 Excess Data Storage Fees. Our Service includes storage of a reasonable amount of Your Data, including current and historical information of Your transactions with Your customers and the number of Your SKUs in Your Data. If the amount of storage utilized by You and/or Your Users exceeds our standard storage limits (“Excess Data Storage”), You may be charged the applicable Excess Data Storage fees.
3.6 Maximum Orders per Month. The maximum number of Orders with Your customers per month You can process utilizing our Service is set forth in the applicable Quote. If the amount of Orders processed by You and/or Your Users exceeds this limit, You may be charged additional Subscription Fees as explained in Section 4.1 “Prices”.
3.7 Termination or Suspension of Services. We reserve the right to suspend or terminate, immediately without notification, Your or any individual User’s access to the 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 Services to You or Your Users; or (vii) You fail to pay undisputed charges for the Services after being given notice; provided, however that Subscription Fees will continue to accrue notwithstanding any such suspension; and/or (viii) violates Section 2 “License Grant & Restrictions” or Section 3.3 “Appropriate Use of the Services”.
- Prices and Payment.
4.1 Prices. The prices for the 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 “Fees”). If in any billing month You exceed the total number of Users or process more Orders than purchased thereunder, We shall invoice You based on Your peak count during the billing month and You agree to pay the Fees associated for such increased count.
4.2 Payment. 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 and 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 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 Services is withheld in accordance with the foregoing, in order to reinstate such 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 non-refundable.
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 Agreement. 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 Software and/or Services provided hereunder. In no event will either party be responsible for any taxes levied against the other party’s net income.
- Intellectual Property & Protections.
We shall have sole and exclusive ownership of all right, title, and interest in and to the Our Content, documentation, Services, 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 Agreement does not provide You or Your Users with title or ownership of Our Content, documentation, Services, Software and Web Site, but only a right of limited use, as defined herein. We may aggregate anonymous statistical data regarding use and functioning of the Services by You and Your Users. Such aggregated statistical data will be Our sole property.
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.
- Service Warranties.
6.1 Warranty. In exchange for prompt payment of Fees, as set forth in the applicable Quote, due hereunder, and so long as You or Your Users are not in material breach of any section of this Agreement, We shall make available to You and Your Users the Services indicated in the applicable Quote. We hereby represent and warrant that (i) the Software and the Service will perform in all substantial and material respects to the functionality as described in applicable online product specifications available via Our Web Site; (ii) We will use commercially reasonable security measures, in accordance with then-current industry standards, to protect Your Data against unauthorized disclosure or use; and (iii) the Software shall be available for Your use during the Subscription Term in accordance with Section 3.1 “Services & Support” of this Agreement.
6.2 Warranty Exclusions & Exclusive Remedy. The warranties stated herein shall not include nor extend to (i) any improper use, operation or neglect of the Software, and/or Services; (ii) the unauthorized modification of the Software, and/or Services or the merger of the Software (in whole or part) or Services with any other software or equipment by You not previously approved by Us; (iii) any material breach by Your or Your Users obligations under this Agreement; and/or (iv) use of the Software or Services for any purpose not set out on the Web Site, in the documentation, Section 2, “License Grant & Restrictions”, and/or Section 3.3 “Appropriate Use of the Services”. Your sole and exclusive remedy for Our breach of Section 6.1 “Warranty”, in contract, tort, or otherwise, shall be for Us, at our sole discretion, to either (a) correct the breach within thirty (30) days of receipt of written notice of warranty breach or (b) refund to You the Subscription Fees actual paid by You to Us the prior three (3) months from when such an uncured failure has occurred.
- Limitation of Liability; Exclusion of Consequential Damages.
7.2 EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE AND/OR INCIDENTAL DAMAGES, WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
7.3 LIMITATION OF LIABILITY. WE SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE UNLESS SUCH LOSS OR DAMAGE IS DUE TO OUR GROSS NEGLIGENCE AND/OR WILLFUL MISCONDUCT. IF WE ARE FOUND LIABLE, THE AMOUNT OF OUR MAXIMUM LIABILITY FOR ANY AND ALL LOSSES AND/OR DAMAGES (IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL SERVICES FEES ACTUALLY PAID TO US FOR THE RELEVANT SOFTWARE WITHIN THE PRIOR THREE (3) MONTHS FROM WHICH SUCH CLAIM ARISES. IF THE DATA TRANSMITTED IS INSURED BY YOU, THEN YOU SHALL CAUSE YOUR INSURERS OF SUCH DATA TO WAIVE ANY RIGHT OF SUBROGATION AGAINST US.
7.4 ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN SHALL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.
8.1 Term. This Agreement 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 Agreement shall, continue on a Subscription Term-to-Subscription Term basis at Our then-current commercially available rates for the applicable Services, until (i) this Agreement 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 Agreement 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. You specifically acknowledge that except for under Section 6 “Service Warranties” all prepaid fees are non-refundable.
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, specifically excluding email.
8.3 Termination for Material Breach. This Agreement, 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 Services. Termination of this Agreement does not relieve You of any outstanding payments due or any liability arising prior to termination.
- Post-Termination Procedures.
In the event that this Agreement 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 Agreement 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”.
10.1 Confidential Information. You acknowledge that the Service, the terms of this Agreement, and any other proprietary or confidential information provided to You by US (“Our Confidential Information”) constitutes valuable proprietary information and trade secrets of Ours and/or Our licensors. We acknowledge that the data provided by You or Your Users (“Your Confidential Information”) constitutes valuable proprietary information and trade secrets of Yours or Your Users. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using such Confidential Information in confidence, solely for its use in furtherance of this Agreement, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this Section 10 “Confidentiality”. Each receiving party agrees to promptly report any breaches of this section to the disclosing party.
We are authorized to comply with any subpoena or similar order related to the data in its possession, provided that We notify You promptly upon receipt thereof, unless such notice is prohibited by law. You shall pay Our applicable charges on a time and materials basis at Our then-current rates for such compliance. We will cooperate with Your efforts to quash or limit any subpoena, at Your expense.
- General Provisions.
12.1 Entire Agreement; Integration. This Agreement, Attachments, Exhibits, and the applicable Quote(s), and/or Statement of Work(s), which reference this Agreement, represent the entire understanding between the Parties on the subject matter hereof and supersede all prior discussions, agreements and understandings of every kind and nature between the Parties. Neither party shall be deemed the drafter of this Agreement. No modification of this Agreement shall be effective unless in writing and signed by both Parties. All additional and conflicting terms and conditions presented with or in any communication, including but not limited to Your purchases order (“P.O.”), except with respect to price, quantity and location specified in a P.O., are hereby rejected and shall be deemed null and void.
12.2 Headings & Order of Precedence. All headings used herein are for convenience of reference only and are not a part of this Agreement, nor shall they in any way effect the interpretation hereof. If there is any conflict between this Agreement and any Attachment hereto, the order of precedence shall be that this Agreement shall supersede and then the applicable Attachment.
12.3 Force Majeure. Neither party shall be liable for any failure or delay in performing services or any other obligation under this Agreement, nor for any damages suffered by the other or an end user by reason of such failure or delay, which is, indirectly or directly, caused by an event beyond such party’s control including but not limited to strikes, riots, natural catastrophes, terrorist acts, governmental intervention, or other acts of God, or any other causes beyond such party’s reasonable control.
12.4 Relationship with Third Parties. This Agreement governs the relationship between You and Us. No end user or other person or entity not a party to this Agreement shall be considered a third party beneficiary of this Agreement.
12.5 Severability & Survival. The illegality or unenforceability of any provision of this Agreement shall not affect the validity and enforceability of any legal and enforceable provisions hereof. Should any provision of this Agreement 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 Agreement; 4, “Prices & Payment”; 5, “Intellectual Property & Protections”; 7, “Limitation of Liability; Exclusion of Consequential Damages”; 9, “Post-Termination Procedures”; 10, “Confidentiality”; and 12, “General Provisions”.
12.6 Assignment. Neither party may assign any rights or delegate any obligations hereunder, whether by operation of law or otherwise, except in the case of a sale of either parties business whether by merger, sale of assets, sale of stock or otherwise, or except with the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, You may not assign this Agreement to a direct competitor of Us. Any attempted assignment or delegation outside these exceptions or without such written consent shall be voidable by the non-assigning party. This Agreement may also be terminated without a notice period by a written communication to You if as the result of any transaction or a change of control occurs, directly or indirectly, such that a competitor of Us controls You or any entity, which becomes a party to this Agreement, directly or indirectly. This Agreement binds the parties, their respective participating subsidiaries, affiliates, successors and permitted assigns.
12.7 Applicable Law. This Agreement and all resulting claims and/or counterclaims shall be governed, construed, enforced and performed in accordance with the laws of the State of New Jersey, USA, without reference and/or regard to its conflicts of laws principles. Each party hereby submits to the exclusive jurisdiction of the courts of New Jersey and hereby waives any objections to venue with respect to actions brought in such courts. Both Parties specifically agree that the U.N. Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act (“UCITA”), shall not apply to any and all actions performed by either party hereunder in furtherance of this Agreement.
12.8 Government End-User Notice. The Software is a “Commercial Item,” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software documentation,” as such terms are used in 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. §§ 12.212, 227.7202-1 through 227,7202-4, the Commercial Computer Software and Commercial Computer Software documentation are being licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein.
12.9 Waiver. Each party agrees that the failure of the other party at any time to require performance by such party of any of the provisions herein shall not operate as a waiver of the rights of such party to request strict performance of the same or like provisions, or any other provisions hereof, at a later time.
12.10 Notices. All notices under this Agreement shall be in English and shall be in writing and given by registered airmail or overnight delivery. Notices shall be deemed given when received. Our Notification Information is as follows:
Freestyle Solutions, Inc.
9 Campus Drive, Parsippany, NJ 07054