M.O.M. SUBSCRIPTION SERVICES SCHEDULE
This M.O.M. Subscription Services Schedule (“Schedule”) is made and entered into as of the Effective Date as indicated below, by and between you (“You” &/or “Your”) and Freestyle Solutions, Inc. (“Our”, “Us” or “We” ) a Delaware Corporation having principal offices at 9 Campus Drive, Parsippany NJ 07054 if You purchase any M.O.M. Subscription Service(s) as listed on Your Quote. This Schedule is governed solely and exclusively by the M.O.M. Master Services & License Agreement (“Agreement”) entered into between You and Us. Capitalized terms not otherwise defined in this Schedule shall have the meaning as set forth in the Agreement. Except as modified in this Schedule, all terms and conditions of the Agreement shall remain in full force and effect. To the extent that there is a conflict between the Agreement and this Schedule, the terms of this Schedule shall govern with regard to the subject matter herein.
WHEREAS, We are in the business of providing Subscription Services, which support our Software; and
WHEREAS, You desire to purchase such Subscription Services; and
NOW, THEREFORE, in consideration of the promises and covenants contained herein the parties agree as of the Effective Date to the following:
“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).
“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).
- 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.
- 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 a minimum of 99.9% of the time during any 30 day period 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”.
- Prices and Payment.
4.1 Prices. 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 “Fees”).
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 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 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 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.
- 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 defined herein.
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.
- NO FURTHER WARRANTIES
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.
- 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 viaa 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”.