Terms and Conditions
This Subscription Agreement Terms and Conditions is between FriendMedia, Inc., with a principal place of business located at 6314 Brookside Plaza, #204, Kansas City, Missouri 64113 (“Company”), and the customer (“Customer”). This Subscription Agreement includes and incorporates these Terms and Conditions, Cover Page and Pricing Page (found on the Company’s website) (together, the “Agreement”). This Agreement is made effective as of the date of Customer’s acknowledgement and acceptance on Company’s platform (the “Effective Date”). There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. Customer further expressly understands and agrees that all follow-on orders placed with the Company will be subject to Company’s then-existing Subscription Agreement Terms and Conditions.
1. SERVICES AND SUPPORT
1.1 Services. Company delivers an automated in-practice marketing platform to medical aesthetic practices at the point of care (the “Services”).
1.2 Support. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the service level terms set forth in Section 1.3 of this Agreement. Customer will identify an administrative username and password for Customer’s Company account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate.
Subject to the terms of this Agreement, Company will provide Customer with reasonable technical support services in accordance with the Company’s standard practice by emailing firstname.lastname@example.org. Company will provide technical support for all Services and Company provided hardware, including, but not limited to, an fmStick (which includes one (1) media player and one (1) remote control) and other hardware as may be added by Company from time-to-time, (each, a “Device”, collectively, the “Devices”) supplied in support of services.
1.3 Service Level Agreement. Company guarantees that the Services provided herein will be accessible to Customer’s authorized users 99.5% of the time in any given calendar month, excluding scheduled and emergency maintenance. Scheduled maintenance windows will be published in advance at least 36-hours in advance of the state of the maintenance window. Emergency maintenance will occur as needed. Notwithstanding the above, Company does not guarantee network availability between Customer and host servers. Company will not be liable for nor provide service credits for downtime caused in whole or in part by a third-party provider or for any downtime as a result of Customer’s own connectivity issues. If Customer experiences a Service outage and is unable to access the Company Service, Customer must immediately contact Company. Company will determine in good faith whether an outage within Company’s control has occurred. If Company determines that a timely reported outage was attributable to Company, then Company will credit Customer a one (1) day of Service fees for every 4-hours of downtime Customer experienced, up to a maximum of half of that month’s Service fees. This shall be Customer’s sole remedy, and Company’s sole liability, for Company’s failure to provide the guaranteed availability set forth in this Section 1.3.
1.4 Warranty. Your Services shall include the use of one or more Devices provided by Company for your use in connecting to the Services. The following terms apply to your possession and use of any Device: (1) Customer is responsible for obtaining and providing all communications and Internet access services necessary to connect Device(s) to Company Services. Company does not provide or sell such services. (2) Customer may not use the Device for any purpose other than to access and use the Services. (3) Customer may purchase additional or replacement Devices from Company. Company will pay the cost of such Devices, including applicable shipping costs and sales, use or similar taxes. (4) Devices are covered under manufacturer’s warranty for a period of one (1) year from date of shipment to Customer. Company does not provide any additional warranty beyond the manufacturer’s warranty. (5) If you have any problems with your Device, including if your Device is damaged, you should contact email@example.com. You understand and agree that repairing or replacing a Device may cause stored content to be deleted, and/or reset a Device’s settings. (6) Customer is responsible for the care of its Device(s) and for the entire cost of service, repair or replacement of any Device that is not covered by manufacturer’s warranty. Company reserves the right to charge reasonable shipping and handling fees in connection with such work.
Company shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform the implementation services in a professional and
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workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
2. RESTRICTIONS ON USE AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation, or data related to the Services (“Software”) or Devices; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. Company owns all rights, title, and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the Services. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software, Devices or anything related thereto, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s allowed use rights and restrictions set forth in Sections 1 and 2.1 of this Agreement and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from a violation or an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.3 Customer 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, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords, if applicable) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 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 Company includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such 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, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, 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 or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title, and interest in and to (a) the Services, including any Company software used, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation of the Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right 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 Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective
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purposes in connection with the Services and other Company offerings, and (ii) disclose and share such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described on the Pricing Page in accordance with the terms therein (the “Fees”). Fees can be prepaid annually or paid in monthly installments during the Term. If Customer’s use of the Services exceeds the Service capacity or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current Renewal Term, upon thirty (30) days prior notice to Customer. If Customer is participating in a multi-sponsor subscription or a promotional offer, at the end of the Initial Term, Customer’s subscription shall automatically convert to Company’s then-current non-sponsor rates. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s Customer Support Department.
4.2 Customer agrees to provide Company with a valid credit card and complete and accurate billing and contact information. Customer authorizes Company to charge the Fees using Customer’s credit card on file. Alternatively, and at Company’s sole discretion, Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid or outstanding amounts are subject to a finance charge of one and one-half percent (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. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. Notwithstanding to the contrary in this Agreement, Company has the right to terminate the Services immediately, without notice to Customer for nonpayment.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term beginning on the Effective Date and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (each; a “Renewal Term”, collectively, the “Term”), unless either party requests termination after the Initial Service Term and at least thirty (30) days prior to the end of the then-current term. For the avoidance of doubt, if the Initial Service Term referenced in this Agreement is for a 6-month period, each Renewal Term will extend this Agreement for subsequent 6-month periods unless otherwise modified in writing by the parties or terminated in accordance with Section 5.2 below. In the event the Initial Service Term is not defined anywhere in this Agreement, the Initial Service Term and each Renewal Term shall automatically be for a 12-month period, unless otherwise agreed upon in writing by the parties.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ prior written notice (or without notice by Company in the case of nonpayment by Customer), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
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7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) 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; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (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.
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. This Agreement is not assignable, transferable, or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement 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. The parties to this Agreement are independent contractors to each other. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. 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 by facsimile 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. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflict of laws provisions. The parties to this Agreement consent to the exclusive jurisdiction and venue in any federal or state court located in New Castle County, Delaware for the resolution of all disputes arising under, or relating to, this Agreement.
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