Master Subscription Agreement - Terms and Conditions
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
This Agreement was last updated on October 1, 2021. It is effective between You and Us as of the date You are accepting this Agreement.
"We","Us" or "Our" means the yolBe Inc. Company.
"You" or "Your" means, in the case of an individual accepting this Agreement on their own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have entered into this agreement.
"Services" means the products and services that are ordered by You under an Order Form or Scope of Work or provided to You free of charge (as applicable) or under a free trial, and made available online by Us, including associated offline or mobile components, as described in the Documentation. "Services" exclude Data and Non-yolBe IncApplications.
"Network Data" means electronic data and information submitted by a network's organization or by designed others to the Services such as job postings, events, and training opportunities.
"User Data" means electronic data and information submitted by users of the Services such as user profiles, personally identifiable information and social interactions.
"Generated Data" means aggregate or derivative electronic data and information obtained by processing aggregate User data or Network data.
All hiring or employment made possible by or resulting from this Agreement there (1) will not be any discrimination against any qualified employee or qualified applicant for employment because of sex, race, religion, color, national origin or ancestry, age, disability, lawful source of income, marital status, sexual orientation, gender identity or expression, past or present membership in the military service, familial status, or based upon affiliation with, or perceived affiliation with any protected categories, and affirmative action will be taken to ensure that applicants are employed and that employees are treated during employment without regard to their sex, race, religion, color, national origin or ancestry, age, disability, lawful source of income, marital status or sexual orientation or familial status.This requirement shall apply to but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, lay-off or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. They shall be posted in conspicuous places available to employees and applicants for employment, notices required or to be provided by federal or state agencies involved in setting forth the provisions of the clause. All solicitations or advertisements for employees shall state that all qualified applicants will receive consideration for employment without regard to sex, race, religion, color, national origin or ancestry, age, disability, lawful source of income, marital status or sexual orientation or familial status.No person in the United States shall, on the ground of sex, race, religion, color, national origin or ancestry, age, disability, lawful source of income, marital status or sexual orientation or familial status, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. We will comply with all requirements imposed by or pursuant to the regulations of the appropriate federal agency effectuating Title VI of the Civil Rights Act of 1964.We will cause the foregoing provisions to be inserted in all subcontracts, if any, for any work covered by this Agreement so that such provisions will be binding upon each subcontractor, provided that the foregoing provisions shall not apply to contracts or subcontracts for standard commercial supplies or raw materials.We agree that we and any subcontractors will comply with all applicable requirements of the Americans with Disability Act of 1990, 42 U.S.C. 12101, et seq.USE OF SERVICES
Purchased Services are purchased as subscriptions with either monthly or yearly renewalsYour Responsibilities. You will (i) be responsible for compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Network Data, the means by which You acquired Network Data and Your use of Network Data with our Services, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, and (iv) comply with terms of service of any Non-yolBe Applications with which You use Services.
FEES & PAYMENTS
You will pay all fees specified in delivered invoices. Fees are based on Service subscriptions purchased and not actual usage unless specifiedInvoicing and Payment. You will provide our billing system with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to our billing system, You authorize Us to charge such credit card for all Purchased Services listed in the Scope of Work or Order Form for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either annually or monthly. We will invoice You in advance. Invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late simple interest at the rate of 1.0% of the outstanding balance per month.Payment Disputes. We will not exercise Our rights under Section Overdue Charges above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). We are solely responsible for taxes assessable against Us based on Our income, property and employees.Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features not outlined in the Scope of Work or Order Form, or dependent on any oral or written public comments made by Us regarding future functionality or features.
PROPRIETARY RIGHTS AND LICENSES
Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our Affiliates, Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.Access to and Use of Content. You have the right to access and use our applicable Services.License to Host Network Data and Applications. You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, display and use any Non-yolBe Applications and program code created by or for You using a Service or for use by You with the Services, and Network Data, each as reasonably necessary for Us to provide, and ensure proper operation of, our Services and associated systems in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any Network Data, Non-yolBe Application or such program code.License to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’ services.License to Generate Data. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ to create Generated Data, such as reports and studies, that is based on User Data obtained from interacting with Network Data. We acquire no right, title or interest from You for Generated Data, such as reports and students generated directly from Network Data, this data will remain the sole property of You.
Definition of Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Network Data; Our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such parties. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party, or was User Data.The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this "Confidentiality" section. Notwithstanding the foregoing, We may disclose the terms of this Agreement to a subcontractor or Non-yolBe Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a "Claim Against You"), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under "Warranties" above, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that our Services are the basis of the Claim Against You; (2) a Claim Against You arises from the use or combination of our Services or any part thereof with software, hardware, data, or processes not provided by Us, if our Services or use thereof would not infringe without such combination; (3) a Claim Against You arises from Services under an Order Form for which there is no charge; (4) a Claim against You is based on traditional online storefront commerce functionality that is or was in general use in the industry; or (5) a Claim Against You arises from Content, a Non-yolBe Application or Your use of the Services in violation of this Agreement, the Documentation or applicable Order Forms.Indemnification by You. You will defend Us and Our Affiliates against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that (a) any Network Data or Your use of Network Data with our Services, (b) a Non-yolBe Application provided by You, or (c) the combination of a Non-yolBe Application provided by You and used with Our Services, infringes or misappropriation such third party’s intellectual property rights, or arising from Your use of the Services in an unlawful manner or in violation of the Agreement, and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR OTHERWISE, QUALITY OR USEFULNESS OF THE TECHNOLOGY OR THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
LIMITATION OF LIABILITY
Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE "FEES AND PAYMENT (5)" SECTION ABOVE.Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW TERM AND TERMINATION
Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.Term of Purchased Subscriptions. The term of each subscription in the Scope of Services. Subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless We provide You notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section Termination, We will refund You any prepaid fees covering the remainder of the term after the effective date of termination. If this Agreement is terminated by Us, You will pay any unpaid fees covering the remainder of the term. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.Network Data Portability and Deletion. Upon request by You made within 90 days after the effective date of termination or expiration of this Agreement, We will make Network Data available to You for export or download as provided in the Documentation. After such 90-day period, We will have no obligation to maintain or provide any of Your Network Data, and as provided in the Documentation may thereafter delete or destroy all copies of Network Data in Our systems or otherwise in Our possession or control, unless legally prohibited.We shall maintain records of artifacts and matters associated with the execution of this agreement for purchased services for 7 years after the final payment of this agreement.