BAM!™ SUBSCRIPTION AGREEMENT
BY INDICATING YOUR ASSENT TO ENTER THIS BAM!™ SUBSCRIPTION AGREEMENT (THE “AGREEMENT”), YOU SUBMIT TO POP ART, INC., AN OREGON CORPORATION (“POP ART”), AN OFFER TO OBTAIN THE RIGHT TO USE THE HOSTED SERVICE AND/OR MOBILE APP UNDER THE PROVISIONS OF THIS AGREEMENT AND HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE PERSON AND/OR ENTITIE(S) (COLLECTIVELY, THE “CUSTOMER”) WISHING TO USE THE PRODUCTS AND SERVICES LISTED ON THE WRITTEN OR ELECTRONIC QUOTATION, ORDER FORM(S) AND/OR OTHER DOCUMENTS (EACH AN “ORDER FORM”) WHICH WE PROVIDE TO CUSTOMER IN CONNECTION WITH THE PURCHASE OF LICENSES TO ACCESS AND USE THE HOSTED SERVICE. THE TERMS OF EACH ORDER FORM WILL SET FORTH THE SPECIFIC TERMS OF THE ORDER BUT ALL APPLICABLE TERMS AND CONDITIONS BELOW SHALL APPLY.
IF YOU DO NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER OR YOU OR THE CUSTOMER DO NOT AGREE TO ANY OF THE TERMS BELOW, POP ART IS UNWILLING TO PROVIDE THE HOSTED SERVICE OR MOBILE APP TO CUSTOMER, AND YOU SHOULD DISCONTINUE THE ORDER, AND/OR REGISTRATION PROCESS.
Pursuant to this Agreement, Customer may order from Pop Art licenses to access and use (a) one or more of Pop Art’s proprietary asset management module(s) currently marketed as BAM!™ to be hosted and made available by Pop Art on a software-as-a-service basis (the “Hosted Service”) and/or (b) any related Pop Art mobile application (a “Mobile App”). The specifics of each Customer order will be set forth on one or more Order Forms. All Order Forms are incorporated herein by reference.
2. USE RIGHTS AND RESTRICTIONS.
2.1 Administrative Rights. The Hosted Service will include a restricted-access administrative interface component (“Administrative Interface”) to allow employees or specific independent contractors designated by Customer (“Administrative Users”) to access the configuration and settings components of the Hosted Service to manage, configure and monitor the Hosted Service for Customer’s benefit, which such configuration may include enabling the Hosted Service to interact with a Mobile App. Each Administrative User will be provided access to and use of the Administrative Interface (“Admin User Access”). Customer shall be responsible for ensuring the security and confidentiality of all Admin User Access. Customer acknowledges that it will be solely and fully responsible for all liabilities incurred through use (permitted or unpermitted) of any Admin User Access.
2.2 Access to Hosted Service.
2.2.1 License Rights. During the applicable Subscription Term (as defined below) and subject to the terms and conditions of this Agreement, Pop Art hereby grants to Customer’s designated internal and/or external users (each, a “User”) a limited, worldwide, non-exclusive, non-transferable license to: (i) access and use the Hosted Service set forth in each Order Form; and (ii) use and make a reasonable number of copies of any descriptions, instructions, or other documentation made available by Pop Art that describes functionality of the Hosted Service, if any (collectively, the “Documentation”), in each case solely for Customer’s internal business purposes. For purposes of clarification, Customer acknowledges and agrees that all Mobile Apps shall be made available to Users solely in accordance with the terms of the then-current end user license agreement under which each such Mobile App is made available (the “EULA”), which such EULA shall supersede any conflicting terms or conditions of this Addendum with respect to any access to and use of the Mobile Apps. Customer shall be liable and responsible for the full compliance of Users with the terms of this Agreement.
2.2.2 Access Requirements. Customer is solely responsible for (i) obtaining and maintaining any equipment or ancillary services needed to access or otherwise use the Hosted Service, including, without limitation, modems, hardware, software, and long distance or local telephone service and any fees associated therewith, (ii) ensuring that such equipment or ancillary services are compatible with the Hosted Service and (iii) procuring all necessary rights from applicable third parties to any related third party product(s) not provided by Pop Art that may be necessary for Customer and Users to fully utilize the Hosted Service.
2.3 Restrictions. Except as otherwise expressly permitted under this Agreement, Customer agrees that no User shall: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Hosted Service or any portion thereof; (b) distribute, transfer, grant sublicenses, or otherwise make available the Hosted Service (or any portion thereof) to third parties other than Users, including, but not limited to, making such Hosted Service available as an application service provider, service bureau, or rental source; (c) embed or incorporate in any manner the Hosted Service (or any element thereof) into applications of Customer or third parties; (d) create modifications to or derivative works of the Hosted Service; (e) reproduce the Hosted Service or Documentation; (f) use the Hosted Service in a manner not authorized under the Documentation or in violation of any applicable law, rule or regulation, including any export/import laws, or (g) in any way access, use, or copy any portion of the Hosted Service code (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Hosted Service.
3. IMPLEMENTATION AND DELIVERY; SUPPORT SERVICES; CUSTOMER CONTENT; SECURITY.
3.1 Implementation and Delivery; Support and Maintenance. Pop Art and Customer shall each use commercially reasonable efforts to implement the Hosted Service for Customer within the initial 30-day period following the effectiveness of an Order Form. Customer acknowledges that the timely and successful implementation of the Hosted Service requires good faith cooperation by Customer. In the event that any failure by Customer to provide such cooperation results in any delay or deficiency in implementation of the Hosted Service, Pop Art shall not be deemed in breach of this Agreement for such delay. During the applicable Subscription Term, subject to Customer’s payment of all related fees, Pop Art or its third party hosting provider will (a) set-up and host the Hosted Service, including obtaining and maintaining all computer hardware, software, communications systems, network and other infrastructure (“Hosting Infrastructure”) necessary to permit Customer to access and use the Hosted Service in accordance with this Agreement; (b) manage and install all updates and upgrades that Pop Art makes generally available to its customers for the Hosted Service within the Hosting Infrastructure; and (c) provide technical support services to Customer regarding Customer’s operation and use of the Hosted Service as set forth in the applicable Order Form, as further described in Exhibit A (“Support Services”).
3.2 Customer Content; Usage Data. Customer: (a) is solely responsible for any and all content, including personally identifiable data (“Customer Content”), that may be collected or utilized by Customer or Users through its use of the Hosted Service; (b) acknowledges that Pop Art has no control over and will not monitor the content of the Customer Content except in connection with its performance of Support Services hereunder; and (c) represents and warrants that it will not store or otherwise use any Customer Content in connection with the Hosted Service that: (i) violates this Agreement; (ii) is defamatory, libelous, abusive, illegal, profane, indecent, pornographic, obscene, hateful, offensive, harassing, or threatening in any way; (iii) constitutes or encourages conduct that would be considered a criminal offense or give rise to civil liability, or otherwise intentionally or unintentionally violate any law, rule or regulation; or (iv) violates any third party’s copyright, trademark, patent, trade secret, or other personal or proprietary right.
Pop Art shall have the right to use, create derivative works of, distribute and otherwise exploit anonymous, aggregate usage data derived from Customer Content (“Usage Data”) such as the aggregate number of transactions that occur within a particular Hosted Service provided that in no event will Pop Art disclose or make available any Usage Data in a manner that does or reasonably could permit the recipient of such information to determine that such Usage Data pertained to Customer or any User in particular.
3.3 Security. Pop Art shall (i) establish and maintain appropriate technical and organizational measures to protect against accidental damage to, or destruction, loss, or alteration of, Customer Content; (ii) establish and maintain appropriate technical and organizational measures to protect against unauthorized access to the Customer Content; and (iii) establish and maintain network and internet security procedures, protocols, security gateways and firewalls with respect to the Hosted Service. Pop Art is not responsible for the security of Customer Content while in transit over the Internet.
4.1 Fees. Subject to the terms and conditions below, all one-time and recurring fees for, as applicable, the Hosted Service and/or Mobile App (collectively, the “Fees”) will be set forth on the applicable Order Form.
4.2 Payment Terms. Unless otherwise agreed to in writing by the parties, Customer will pay to Pop Art all undisputed Fees owed within thirty (30) days, or such other period as may be specified in the Order Form, after Pop Art’s issuance of an invoice pertaining thereto. If applicable, payments will be sent to the address included on the invoice. All amounts payable shall be in the currency of the United States and specifically exclude (and Customer is responsible for) any and all applicable sales, use and other taxes, (other than taxes based on Pop Art’s income). Unless otherwise set forth in an Order Form, each party is responsible for its own expenses under this Agreement. In cases where Customer fails to make payment under this Agreement, Customer shall bear default interest after the due date at the rate of 18% per year or the highest amount permitted by applicable law (whichever is less), which shall be calculated on a per diem basis of a year of 365 days.
5. TERM AND TERMINATION
5.1 Term of Agreement. This Agreement shall continue in effect until terminated as set forth herein. The initial subscription term for each Hosted Service license purchased by Customer will be as set forth in the applicable Order Form and subject to any renewal as set forth in Section 5.2 below (collectively, the “Subscription Term”).
5.2 Subscription Terms; Renewal. Each Subscription Term will commence on the date that both parties have executed the applicable Order Form under which Customer acquires such license, unless a later commencement date is expressly set forth on such Order Form, and will continue for the initial Subscription Term. Thereafter, each Hosted Service license will automatically renew (i) for the renewal period specified on the applicable Order Form, if any, or, if not specified, for a period of one (1) year and (ii) at the same Fees applicable during the immediately preceding term (based upon the latest applicable pricing tier) unless either party notifies the other at least thirty (30) days prior to the commencement of the renewal term that it does not intend to renew the Subscription Term upon the same terms.
5.3 Termination. This Agreement and/or any Order Form, if applicable, may be terminated (a) by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party, or (b) as set forth in Section 9. Additionally, a particular Order Form may be temporarily suspended or terminated by Pop Art in the event that Customer fails to pay applicable Fees when due or otherwise violates any of the use restrictions set forth herein.
5.4 Effect of Termination. Upon any termination of this Agreement or an Order Form, without prejudice to any other rights or remedies which the parties may have, (a) all rights licensed and obligations required thereunder shall immediately cease; provided that Sections 2.3, 4, 5.4, 6, 7, 8.3, 9, 11 and 12 shall survive termination, (b) Customer will promptly delete and destroy all copies of the Documentation in its possession or control, and (c) Customer shall pay to Pop Art any outstanding Fees that have accrued under the Agreement and/or Order Form prior to the date of termination.
6. PROPRIETARY RIGHTS.
As between the parties, (i) Pop Art will retain all ownership rights in and to the Hosted Service and Mobile Apps, all updates and/or upgrades thereto, the Documentation, and other derivative works of the Hosted Service, Mobile Apps and/or Documentation that are provided by Pop Art, and all intellectual property rights incorporated into or related to the foregoing and (ii) Customer will retain all ownership rights in and to the Customer Content, and all intellectual property rights incorporated into or related to the foregoing. The trademarks and service marks and other Pop Art logos and product and service names are trademarks of Pop Art (the “Pop Art Marks”). Likewise, the trademarks and service marks and other logos and product and service names of Customer are trademarks of Customer (collectively “Customer Marks”). Without the other party’s prior written permission, the parties agree not to display or use in any manner, the Pop Art Marks or Customer Marks, as applicable. All rights not expressly licensed by Pop Art and Customer under this Agreement are reserved. As between the parties hereto, Customer will retain all ownership rights in and to all Customer Content
7. CONFIDENTIAL INFORMATION.
“Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, performance results, pricing, and other confidential or proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or reasonable should have known, under the circumstances, was considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such. The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least the same degree of care that receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information. The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information: (a) was known to the receiving party on or before effective date of this Agreement without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or otherwise required by law, provided that, to the extent legally permissible, the receiving party will notify the disclosing party promptly of such required disclosure and reasonably assists the disclosing party in efforts to limit such required disclosure.
8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
8.1 Mutual. Each party represents, warrants and covenants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a party, (c) this Agreement constitutes the legal, valid and binding obligation of such party when executed and delivered and (d) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations.
8.2 By Pop Art. Pop Art warrants that (a) all Support Services shall be provided in a professional, competent and workmanlike manner in accordance with the prevailing industry standards, (b) the Hosted Service, when used in accordance with the Documentation, will perform in all material respects as specified in such Documentation during the applicable Subscription Term, and (c) Pop Art will not knowingly introduce any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines within the Hosted Service that are intentionally designed to permit unauthorized access to or use of either the Hosted Service’s or Customer’s computer systems (“Viruses”). In the event of any breach of the warranties in subsection (a) or (b) above, Pop Art shall, as its sole liability and Customer’s sole remedy, diligently remedy any deficiencies that cause the Support Services and/or Hosted Service to not conform to such warranties promptly after its receipt of written notice from Customer. Pop Art will not be liable to the extent that any breach of the foregoing warranties are caused by (i) third-party components (including in combination or as integrated with the Hosted Service) not provided by Pop Art; (ii) unauthorized use or use of the Hosted Service other than in accordance with the Documentation or (iii) Viruses introduced by Customer or its agents (collectively, “Exclusions”).
8.3 Disclaimers. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE EXCLUSIVE WARRANTIES OFFERED BY EITHER PARTY AND ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. POP ART DOES NOT WARRANT THAT CUSTOMER’S USE OF THE HOSTED SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
9. INDEMNIFICATION, LIMITATION OF LIABILITY.
9.1 Indemnification. Pop Art will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Hosted Service infringes any United States copyright or misappropriates any trade secret rights and Pop Art will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Customer will defend at its own expense any action against Pop Art brought by a third party to the extent that the action is based upon a claim that Customer has breached Section 3.2 above and Customer will pay those costs and damages finally awarded against Pop Art in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on the indemnified party notifying the indemnifying party promptly in writing of such action, the indemnified party giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnified party cooperating and, at the indemnifying party’s reasonable request and expense, assisting in such defense. If the Hosted Service (or any component thereof) becomes, or in Pop Art’s opinion is likely to become, the subject of an infringement claim, Pop Art may, at its option and expense, either (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement, or (b) replace or modify the Hosted Service so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options are, in Pop Art’s reasonable opinion, commercially reasonable, Pop Art may terminate this Agreement and will refund to Customer a pro-rata portion of any applicable prepaid Fees. Notwithstanding the foregoing, Pop Art will have no obligation under this Section 9.1 or otherwise with respect to any infringement claim based upon any Exclusions. This Section 9.1 states Pop Art’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
9.2 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER, IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE HOSTED SERVICE, MOBILE APP, SUPPORT SERVICES AND INTELLECTUAL PROPERTY PROVIDED HEREUNDER SHALL NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, THE TOTAL OF THE FEES ACTUALLY PAID AND THE FEES PAYABLE TO POP ART BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.
During the term of this Agreement, unless otherwise set forth in the applicable Order Form, Customer hereby agrees that Pop Art shall have the right, but not the obligation, to include Customer’s name and logo as a customer who uses the Hosted Service on the Pop Art website and in other materials promoting the Hosted Service.
11. INJUNCTIVE RELIEF.
The parties acknowledge that the Hosted Service and each party’s Confidential Information are unique property, and the unauthorized use thereof will cause the injured party irreparable harm that may not be adequately compensated by monetary damages. Accordingly, the parties agree that the injured party will, in addition to other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement.
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of Oregon, without regard to Oregon conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Multnomah County, Oregon. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. Collectively this Agreement and related Order Forms constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Pop Art. The terms on any purchase order or similar document submitted by Customer to Pop Art will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the applicable Order Form.
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EXHIBIT A –SUPPORT SERVICES
- Customer Obligations. Customer agrees to provide Pop Art with all information and materials requested by Pop Art for use in replicating, diagnosing and correcting an error or other problem with the Hosted Service reported by Customer. Customer acknowledges that Pop Art’s ability to provide satisfactory Support Services is dependent on Pop Art having the information necessary to replicate the reported problem with the Hosted Service.
- Items Not Covered by Support Services. Pop Art is not obligated to provide Support Services for errors or problems caused by the following:
- (a) third-party components not provided by Pop Art; or
- (b) use of the Hosted Service other than as described in the Documentation.
- Support Services. Pop Art shall provide the following Support Services for the Hosted Service:
Available by phone or email during business hours
9:00 am – 5:00 pm Pacific (Monday – Friday)
(Excluding Nationally Recognized Holidays)