With your acceptance of the Terms and Conditions contained herein, THIS SUBSCRIPTION AGREEMENT (the "Agreement") is made as of January 21, 2019 (the “Effective Date”) by and between YOU (“CUSTOMER”), and Modernmeal, Inc. a Delaware Corporation (“Supplier”), (sometimes collectively referred to as the "Parties").
(A) The Supplier has developed certain software applications which it makes available to the Customer via a web and mobile platform on a subscription basis for the purpose of menu and meal planning, recipe and client management and social connectivity (the “Services”);
(B) The Customer wishes to use the Services in its business and/or personal operations; and
(C) The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier's Services subject to the terms and conditions of this Agreement.
1.1 "Affiliate(s)" means any entity directly or indirectly controlling or controlled by or in common control with a Party, where "control" is defined as the ownership of at least fifty percent (50%) or more of the voting stock or other interest entitled to vote.
1.2 “Authorized Users” those employees, agents and independent contractors of the Customer who are authorized by the Supplier and the Customer to use the Services as further described herein.
1.3 "Confidential Information" means any information, regardless of the form in which it is communicated or contained, considered by the disclosing Party to be confidential, proprietary, or non-public; including but not limited to, data, books, records, properties, contracts, concepts, ideas, know-how, techniques, computer programs, diskettes, marketing plans, customer names, and any other technical, financial, or business information. Confidential Information excludes information that: (a) becomes generally available to the public other than as result of a disclosure by a Party or any of the Party's employees, representatives or agents in violation of this Agreement; (b) was available to a Party on a non-confidential basis prior to the disclosure of such information pursuant to this Agreement; (c) is wholly and independently developed by a Party without the use of Confidential Information; (d) is approved for release by written authorization of the disclosing Party, but only to the extent of and subject to the conditions imposed by such written authorization; or (e) is rightfully furnished to either Party by a Third Party.
1.4 “Customer Data” the data inputted by the Customer or any Authorized User for the purpose of using the Services.
1.5 “Subscription Fees” the fees payable by the Customer to the Supplier for the User Subscriptions, as set out herein.
1.6 “Subscription Term” has the meaning given in Clause 11.1
1.7 "Supplier Intellectual Property" means any and all patents, trade secrets, know-how, copyrights, trademarks (whether registered or not) and other intellectual property rights that may exist now or that may be created subsequent to the Effective Date, inclusive of all renewals, continuations, continuations-in part, and extensions thereof, insofar as they relate to the Services and/or are owned by Supplier.
1.8 "Third Party" means any person or entity other than Supplier, any of their Affiliates and Customer.
1.9 “User Subscriptions” a monthly or yearly subscription purchased by the Customer which entitle the Customer to access and use the Services in accordance with this Agreement.
1.10 “Virus” any thing or device which may prevent, impair or otherwise adversely affect the operation of the Services including the reliability of any program or data or adversely affect the user experience, including worms, trojan horses and other similar things.
2. USER SUBSCRIPTIONS & LIMITATIONS OF USE
2.1. Subject to the Customer purchasing the User Subscriptions in accordance with the terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Customer and any additional Authorized Users to use the Services during the Subscription Term solely for the Customer's internal business or personal operations.
1.1 In relation to the Authorized Users, the Customer undertakes that:
(a) the maximum number of Authorized Users that it authorizes to access and use the Services shall not exceed the number of User Subscriptions it has purchased;
(b) it will not allow any User Subscription to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Services; and
(c) each Authorized User shall keep a secure password for his or her use of the Services, and that each Authorized User shall keep his or her password confidential.
2.2. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or causes damage or causes injury to any person or property; and the Supplier reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.3. The Customer shall not, except as may be allowed by any applicable law or to the extent expressly permitted by this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software within the Services or access all or any part of the Services in order to build a product or service which competes with the Services. Additionally, Customer shall not (i) use the Services to provide information or services to Third Parties; (ii) license, sell, rent, lease transfer, assign, distribute, display, disclose or otherwise commercially exploit or otherwise make the Services available to any Third Party except the Authorized Users; or (iii) attempt to obtain or assist Third Parties in obtaining access to the Services.
2.4. The Customer shall use all reasonable endeavours to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify the Supplier in writing of such unauthorized use.
2.5 The rights provided under this Clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3. CUSTOMER DATA
3.1. The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data provided that Customer hereby grants Company the perpetual right to use, reproduce, adapt, and publicly perform the Customer Data as necessary to provide the Services, and to the create anonymized aggregated data and/or statistics that do not identify Customer.
3.2. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with its archiving procedure. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any Third Party.
3.3. The Supplier shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data available at modernmeal.com or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.
5. CHARGES & PAYMENTS
5.1 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this Clause 5.
5.2 In order to use the Services, the Customer shall on the Effective Date provide Supplier with valid, up-to-date and complete credit card details along with relevant contact and billing information. All Customer data and information will be held by a Third Party payment processor. The Customer hereby authorizes the Third Party payment processor to bill such credit card the Subscription Fees on the Effective Date and every month thereafter. In the event the Customer chooses to select a yearly User Subscription plan, Customer hereby irrevocably consents to being charged the entire yearly Subscription Fee up-front
5.3 If an issue arises with Customer’s credit card or the Supplier has otherwise not received payment within 30 days after the applicable billing month, and without prejudice to any other rights and remedies of the Supplier: the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the payment remains unpaid; and interest shall accrue on such due amounts at a rate of 3%, commencing on the due date and continuing until fully paid, whether before or after judgment.
5.4 All amounts and fees stated or referred to in this Agreement shall be payable in US dollars and shall be non-cancellable and non-refundable
5.5 The Supplier shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 30 days' prior written notice to the Customer.
6. OWNERSHIP & DISCLAIMER OF WARRANTIES
Supplier Intellectual Property is part of the Services herein and is not sold to the Customer as part of this Agreement. Supplier retains ownership of all Supplier Intellectual Property and all rights not specifically granted herein. Customer acknowledges and agrees that it has no ownership interest in the Supplier Intellectual Property. Customer expressly acknowledges and agrees that the Supplier Intellectual Property is provided "AS IS" and without warranty of any kind and Supplier expressly disclaims all warranties and/or conditions, express or implied, including, but not limited to, the implied warranties and/or conditions of merchantability or satisfactory quality and fitness for a particular purpose and non-infringement of third party rights. Supplier does not warrant that the functions contained in the Services and/or the Supplier Intellectual Property will meet your requirements, or that the operation of the Supplier Intellectual Property will be uninterrupted or error-free, or that defects in the Supplier Intellectual Property will be corrected. No oral or written information or advice given by Supplier or an authorized representative of Supplier shall create a warranty or in any way increase the scope of this warranty.
7. CUSTOMER'S OBLIGATIONS
7.1 The Customer shall provide the Supplier with all necessary cooperation in relation to this Agreement and all necessary access to such information as may be required by the Supplier in order to render the Services. In addition the Customer shall:
(a) comply with all applicable laws and regulations with respect to its activities under this Agreement;
(b) ensure that the Authorized Users use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorized User’s breach of this Agreement;
(c) be solely responsible for procuring and maintaining its network connections and telecommunications to access the Services and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet shall be the responsibility of Customer and Customer alone; and
(d) notify the Supplier, in writing, of any infringement, counterfeiting or passing off of any of the Supplier Intellectual Property which comes to its knowledge or attention.
Each party, unless otherwise provided by the written consent of the other, shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth herein, and shall use reasonable efforts not to disclose such Confidential Information to any Third Party. Without limiting the foregoing, each of the Parties shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other Party under this Agreement. Each Party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party's Confidential Information.
9. LIMITATION OF LIABILITY
9.1 Subject to the provisions of Clause 10 below, this Clause 9 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its Affiliates, employees, agents or contractors) to the Customer in respect of: (i) any breach of this Agreement; (ii) any use made by the Customer of the Services or any part of them; and (iii) any representation, statement or tortious act or omission (including any negligence) arising under or in connection with this Agreement.
9.2 Except as may be otherwise and specifically provided for in this Agreement: the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer. The Supplier shall have no liability for any damages caused by errors or omissions in any information, instructions, recipes, or data provided by the Supplier to the Customer in connection with the Services. Nothing in this Agreement excludes the liability of Supplier for fraud or fraudulent misrepresentation.
9.3 Subject to Clauses 9.1 and 9.2, the Supplier shall not be liable whether in tort, contract, misrepresentation or otherwise for any consequential, indirect, incidental, punitive, or special damages, of any kind or character, including loss of revenue or profits, failure to realize savings or other benefits, loss of data or use, and claims by any Third Party, with respect to the subject matter of this Agreement, even if the other Party has been advised of the possibility of such damages. The Supplier’s total aggregate liability shall be limited to the total Subscription Fees paid for the User Subscriptions during the twelve (12) months immediately preceding the date on which the claim arose.
10.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services provided that: (i) the Customer is given prompt notice of any such claim; (ii) the Supplier provides reasonable cooperation to the Customer in the defense and settlement of such claim and (iii) the Customer is given sole authority to defend or settle the claim.
10.2 The Supplier shall, subject to Clause 10.4, defend the Customer against any claim that the Services infringe any Third Party intellectual property right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that: (i) the Supplier is given prompt notice of any such claim; (ii) the Customer provides reasonable cooperation to the Supplier in the defense and settlement of such claim and (iii) the Supplier is given sole authority to defend or settle the claim.
10.3 In the defense or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, immediately terminate this Agreement without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
10.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on (i) a modification of the Services by anyone other than the Supplier; (ii) the Customer’s use of the Services in a manner contrary to their intended purpose; or (iii) the Customer’s use of the Services after noticed of the alleged or actual infringement from the Supplier or any appropriate authority.
10.5 The foregoing states the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier’s employees', agents' and sub-contractors’) entire obligations and liability, for infringement of any Third Party intellectual property right or right of confidentiality.
11 TERM & TERMINATION
11.1 This Agreement shall commence on the Effective Date and shall continue on a monthly or yearly basis (the “Initial Subscription Term”) as indicated by the Customer’s choice upon registration for the Services. Thereafter, it shall be automatically renewed for successive periods (the “Renewal Terms”) unless either Party notifies the other Party of termination, in writing, at least thirty (30) days before the end of the Initial Subscription Term or any Renewal Term. The Initial Subscription Term together with any subsequent Renewal Terms shall constitute the Subscription Term. The Company can be contacted at firstname.lastname@example.org
11.2 Without prejudice to any of the other rights or remedies to which the Parties may be entitled, either Party may terminate this Agreement without liability in the event either Party commits a material breach of any of the terms of this Agreement and fails to remedy such breach within thirty (30) days of being notified in writing of the breach.
11.3 On termination of this Agreement for any reason: any rights to the Services granted to Customer hereunder shall immediately terminate and each Party shall return and make no further use of the Services.
12.1 Force Majeure – The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
12.2 Severance – If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
12.3 Entire Agreement - This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover
12.4 Assignment - The Customer shall not, without the prior written consent of the Supplier, assign or transfer all or any of its rights or obligations under this Agreement. The Supplier may freely assign, transfer, charge, sub-contract or deal in any manner it wishes with all or any of its rights or obligations under this Agreement.
12.5 No Partnership or Agency – Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorize either party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
12.6 Governing Law – This Agreement and any disputes or claims arising out of or in connection with it or its subject matter are governed by and construed in accordance with the laws of Delaware.
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