SUBSCRIPTION AGREEMENT DETAILS
1. SERVICES AND SUPPORT
1.1 The applicable Services are offered by Smart Studio, Inc., and its subsidiaries and affiliated entities (“Smart Studio”, “we”, “us” and “our”) subject to your (“Company”, "you", "your") unconditional agreement to the terms set forth in this Subscription Agreement (“Agreement”). This Agreement includes the terms of the subscription to the Service that Company selects via the Smart Studio platform (“Subscription”). The specific terms and conditions of the Subscription (including, Subscription level, price, and other terms) selected by Company may be reviewed at any time on the Sign Up Page.
1.2 Subject to the terms of this Agreement and the payment of applicable fees, Smart Studio will use commercially reasonable efforts to provide Company and Company Customers (defined below) the Service during the Term.
1.3 Company Customer accounts are for use by individuals who are authorized to use the Service by Company and who successfully register as a customer of Company (“Company Customers”). Company Customer accounts cannot be shared or used by more than one Company Customer. As part of the registration process, Company will identify an administrative Company Customer name and password for Company’s Smart Studio account.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Company represents, covenants and warrants that Company will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (ii) attempt to gain unauthorized access to the Service or its related systems or networks or circumvent any use restrictions; (iii) use the Service in violation of any applicable law or regulation or in violation of the rights of any third party; (iv) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (v) circumvent any Company Customer limits or other timing or use restrictions that are built into the Service; (vi) remove any proprietary notices, labels, or marks from the Service or documentation; (vii) frame or mirror any content forming part of the Service; (vii) access the Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Service.
2.2. Company represents, covenants, and warrants that Company will use the Services only in compliance with Smart Studio’s standard published license, privacy and other policies provided to Company via the Service or otherwise (the “Policy”) and all applicable laws and regulations. Each Company Customer shall also be required to agree to and comply with any Policy set forth in the Service. Although Smart Studio has no obligation to monitor Company’s or any Company Customer’s use of the Services, Smart Studio may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing or any other restrictions set out in this Agreement. Prior to restricting access to the Service, Smart Studio will provide Company or the Company Customer, as applicable, reasonable notice and a reasonable opportunity for Company to resolve such concerns, unless doing so places Smart Studio at risk of violating any law or regulation or the rights of any third party.
2.3 Company shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Upon request, Smart Studio will advise Company on the type of Equipment needed to support the Services. Company shall also be responsible for maintaining the security of the Equipment, Company account, passwords (including but not limited to administrative and Company Customer passwords) and files, and for all uses of Company account or the Equipment with or without Company’s knowledge or consent.
2.4 Smart Studio may provide certain sample forms and templates for Company to use in connection with establishing Company policies, terms, and other agreements with Company Customers as part of the provision of Services (collectively, the “Forms”). All Forms are provided for convenience only and on an “AS IS” basis without any representations and warranties, either express or implied, as to the accuracy, completeness, compliance with laws, or use therewith, all of which are expressly disclaimed by Smart Studio to the fullest extent permitted by law.
2.5 Company hereby agrees to abide by and comply with any applicable privacy standards and requirements of any federal or state law and its own privacy policies and procedures, each as may be amended from time to time, for use in connection with Company Customers or otherwise. Company shall be responsible for any failure to comply with the foregoing.
3. PRIVACY AND SECURITY
3.2 Data Backup. The Services do not replace the need for Company to maintain regular data backups or redundant data archives. SMART STUDIO HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF COMPANY DATA.
3.3 Company Control and Responsibility. Company has and will retain sole responsibility for: (i) all Company Data, including its content and use; (ii) all information, instructions and materials provided by or on behalf of Company or any Company Customer in connection with the Services; (iii) Company’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Company or through the use of third-party services (“Company Systems”); (iv) the security and use of Company’s and its Company Customers’ access credentials; and (v) all access to and use of the Services and Service Content directly or indirectly by or through the Company Systems or its or its Company Customers’ access credentials, with or without Company’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
3.4 Access and Security. Company shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (i) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (ii) control the content and use of Company Data, including the uploading or other provision of Company Data for using in connection with the Services.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Smart Studio includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Company includes Company Data (as defined below). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, but in no event shall the precautions to protect such information be less than the Receiving Party implements to protect its own confidential and proprietary information; and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public through no act or omission of the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, as shown through written documentation, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party as show through written documentation. Notwithstanding the foregoing, if any Propriety Information is required to be disclosed by law, rule or regulation or court order, the Receiving Party will promptly notify the Disclosing Party in writing prior to making any disclosure and will reasonably cooperate with any effort by the Disclosing Party to obtain a protective order or other remedy.
4.2 Except for the limited rights granted herein, Company shall own all right, title and interest including all Intellectual Property Rights in and to all data and information provided, or made available to Smart Studio via the Services, by Company or Company Customers (“Company Data”), and all Company trademarks, trade names, service marks, copyrights and logos (“Company Marks”) that are provided to Smart Studio by Company in connection with this Agreement. Company hereby grants to Smart Studio a non-exclusive, worldwide, royalty-free and fully paid license to use the Company Data and Company Marks as necessary for purposes of providing the Services.
4.3 Notwithstanding anything to the contrary, Smart Studio shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Company Data and data derived therefrom), and Smart Studio will be free (during and after the term hereof) to (i) use such information and data (in anonymous, aggregate form) to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Smart Studio offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business, and Company is not entitled to receive any royalties or payment in connection with such rights. No rights or licenses to Company Data are granted to Smart Studio except as provided and set forth herein.
4.4 The Services and associated content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation, and interactive features included with or available through the Services (“Service Content”) and all Intellectual Property Rights to the same, including, without limitation, all trademarks, service marks, trade names and trade dress that may appear in our Services, are owned by Smart Studio, its licensors, or both. Except for the limited use rights granted to Company under this Agreement, neither Company nor Company Customers acquire any right, title or interest in our Services or any Service Content. Any rights not expressly granted in this Agreement are expressly reserved by and for Smart Studio.
4.5 For purposes of this Agreement, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
4.6 Smart Studio shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service or any other offerings any suggestions, enhancement requests, recommendations or other feedback provided by Company or its Company Customers relating to the operation of the Service.
5. PAYMENT OF FEES
5.1 In consideration for the provision of the Services, Company will pay Smart Studio the fees associated with the Subscription selected by Company, as well as any other charges as may be accepted by Company from time-to-time (the “Fees”). Unless otherwise expressly noted in the terms for the Subscription selected, all fees are billed in advance on an monthly basis starting on the Subscription start date. If Company’s use of the Services exceeds any applicable Subscription capacity or limits, Company shall be billed for such usage, and Company agrees to pay the additional fees in the manner provided herein. Smart Studio reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the applicable Subscription Term, upon thirty (30) days’ prior notice to Company (which may be sent by email).
5.2 All Fees are exclusive of taxes. Company shall be solely responsible for all sales, service, value-added, use, excise, consumption and any other taxes, duties and charges of any kind, if any, imposed by any federal, state or local governmental entity on any amounts payable by Company under this Agreement.
5.3 All Fees are non-refundable and non-cancelable. No prorated refunds, credits or upgrade or downgrade related refunds will be provided under any circumstances. Company hereby authorizes Smart Studio to collect fees by charging the credit card provided to Smart Studio as part of Company’s account information or otherwise, either directly or indirectly, via a third party online payment service (“Electronic Payment”). If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, Smart Studio or its service providers reserve the right to collect any applicable return item, rejection or insufficient funds fee and to process any such payment as an Electronic Payment. Any unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
5.4 We utilize the services of Priority Integrated Solutions, LLC (“Priority I.S.”), a payment service provider, to process credit card payment transactions and manage routing of customer information through credit card networks. We are not affiliated with Priority I.S. and expressly disclaim responsibility and liability for services provided by Priority I.S.; accordingly, you hereby agree that Smart Studio shall not be responsible for loss or injury as a result of your use of Priority I.S. Use of Priority I.S. to process payments is subject to [Insert URL to Priority I.S. terms], which Company automatically agrees to upon acceptance of this Agreement.
6.1 Term: Subject to earlier termination as provided below, this Agreement is for the Subscription Term as specified with the Subscription selected, and shall be automatically renewed for additional periods of the same duration as the Subscription Term (collectively, the “Term”), unless either party requests termination at least fifteen (15) days prior to the end of the then-current term.
6.2 Termination: In addition to any other remedies it may have:
(i) either party may terminate this Agreement by written notice to the other party effective as of the date specified in such notice, if the other party materially breaches this Agreement or such Service Order and such breach: (a) cannot be cured; or (b) being capable of cure, remains uncured 30 days after the breaching party receives written notice thereof;
(ii) Smart Studio may terminate this Agreement, effective immediately, by written notice to Company if: (a) there is a material adverse change in Company’s business or financial condition; (b) Company ceases doing business; or (c) applicable laws may materially interfere with Smart Studio’s ability to provide the Services; and
(iii) Smart Studio may terminate this Agreement, at any time without cause, upon 60 days’ prior written notice to Company. In such case, Smart Studio shall be entitled to keep Fees paid for Services rendered and will, as applicable refund to Company any pre-paid Fees for any periods after the termination of the Service (less any outstanding moneys owed by Company to Smart Studio).
6.3 In the event of termination of this Agreement, all sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnification and limitations of liability.
7. WARRANTY AND DISCLAIMER
7.2 DISCLAIMER OF WARRANTIES
ALL SERVICES AND SERVICE CONTENT, INCLUDING ANY PROFESSIONAL SERVICES AND DELIVERABLES, ARE PROVIDED “AS IS” AND SMART STUDIO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET COMPANY’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN COMPANY AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER SMART STUDIO NOR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO THE SERVICES OR ANY SUBJECT MATTER OF THIS AGREEMENT, OR TERMS AND CONDITIONS RELATED THERETO, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (I) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (II) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (III) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (IV) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY COMPANY TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 Subject to this Agreement, Smart Studio shall defend, indemnify and hold Company harmless against any loss, damage or costs (including reasonable attorneys’ fees) awarded to a third party against Company by a court of competent jurisdiction in any actions, lawsuits, or proceedings made or brought against Company by a third party alleging that the use of the Service as contemplated hereunder infringes any US patent, copyright or other intellectual property right of a third party (“IP Claims”), subject to the condition that Company (i) promptly gives written notice of each IP Claim to Smart Studio; (ii) gives Smart Studio sole control of the defense and settlement of each IP Claim (provided that Smart Studio may not settle or defend any IP Claim unless it unconditionally releases Company of all liability); and (iii) provides to Smart Studio all reasonable assistance in respect to each IP Claim.
9.2 If (i) Smart Studio becomes aware of an actual or potential IP Claim, or (ii) Company provides Smart Studio with notice of an actual or potential IP Claim, Smart Studio may (or in the case of an injunction against Company, shall), at Smart Studio’s sole option and determination: (a) procure for Company the right to continue to use the Service; or (b) replace or modify the affected part of the Service with equivalent or better functionality so that Company’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Service and refund to Company any pre-paid Fees for any periods after the termination of the Service, less any outstanding moneys owed by Company to Smart Studio.
9.3 Notwithstanding anything in this Agreement to the contrary, Smart Studio’s indemnification obligations do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by Smart Studio with other products, software or services not provided by Smart Studio; (ii) any IP Claim related to any Company Data, or (ii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
9.4 Subject to this Agreement, Company shall defend, indemnify and hold Smart Studio harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with: (i) Company or Company Customer’s use of the Service; (ii) violation of this Agreement by Company or Company Customer; (ii) violation of any rights of another or any applicable law or regulation by Company or Company Customer; and (iii) any actions, lawsuits, or proceedings made or brought against Smart Studio by a third party alleging that the Company Data, Company Materials, or Company’s use of the Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party or has caused damage to a third party’s property (“Company Claims”); provided, that Smart Studio (a) promptly gives written notice of each Company Claim to Company; (b) gives Company sole control of the defense and settlement of each Company Claim (provided that Company may not settle or defend any Company Claim unless it unconditionally releases Smart Studio of all liability); and (c) provides to Company, at Company’s cost, all reasonable assistance in respect to each Company Claim.
10. FORCE MAJEURE
In no event will Smart Studio be liable or responsible to Company, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Smart Studio’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, epidemic, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
11. NO CLASS ACTION
TO THE EXTENT ALLOWED BY LAW, EACH PARTY WAIVES ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
12. DISPUTE RESOLUTION & ARBITRATION
12.1 The parties agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents/information and the proposed resolution. If after 60 days the parties are unable to resolve any dispute raised under the previous provision, the dispute may only be submitted to arbitration consistent with the terms below.
12.2 The parties agree that any claim or dispute between arising under this Agreement, including any claim by either of us against any agent, employee, successor, or assign of the other, including, to the full extent permitted by applicable law, shall be resolved by binding arbitration in Georgia administered by the JAMS under its commercial rules and procedures in effect when the claim is filed and as set forth at www.jamsadr.com.
12.3 The parties further acknowledge and agree that the foregoing arbitration terms and any proceedings thereunder shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. Any award by the arbitrator(s) may be entered as a judgment in any court having jurisdiction.
13.1 This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
13.2 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
13.3 This Agreement is not assignable, transferable or sublicensable by Company except with Smart Studio’s prior written consent; Smart Studio may freely assign this Agreement and/or delegate its responsibilities hereunder.
13.4 This Agreement (together with any attachments and any other documents or terms incorporated herein) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
13.5 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Company does not have any authority of any kind to bind Smart Studio in any respect whatsoever.
13.6 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
13.7 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. All notices to Smart Studio shall be directed to firstname.lastname@example.org.
13.8 Smart Studio has the right to refer to the Company, and the Company’s use case of the Service, in marketing materials, press releases, white papers and other sales and marketing materials.
13.9 This Agreement shall be governed by the laws of the State of Georgia without regard to its conflict of laws provisions. Any litigation concerning this Agreement or any aspect of the relationship between the parties created by this Agreement shall be submitted to and resolved exclusively by a court of competent jurisdiction in Georgia.