SUBSCRIPTION SERVICES AGREEMENT
THIS SUBSCRIPTION SERVICES AGREEMENT (“AGREEMENT”) GOVERNS YOUR 30-DAY FREE TRIAL OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
IF YOU DO NOT PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR ONGOING USE OF THE LIMITED SUBSCRIPTION SERVICES AVAILABLE FOR FREE FROM RISE VIRTUAL PERSONAL TRAINING( HERE IN KNOWN AS “RISEVPT”).
BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are RiseVPT’s direct competitor, except with RiseVPT’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement is between the entity or individual entering into this Agreement (“Customer”) and RiseVPT Limited (“RiseVPT”). It is effective between Customer and RiseVPT as of the date of your acceptance of this Agreement (“the Effective Date”).
THIRTY DAY FREE TRIAL
When offered RiseVPT will make the Subscription Services available to Customer on a trial basis free of charge until the thirtieth day after Customer’s acceptance of this Agreement. After the thirtieth day if the Subscription Services are not paid for then Customer will only have access to a very limited number of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMISATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING THE THIRTY DAY FREE TRIAL MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED BY THE TRIAL.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING THE THIRTY DAY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with RiseVPT or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
1.2 “Subscription Services” means the hosted service which packages web-based access and the right-to-use the supported applications and associated reference, user and technical guides as named and described in Schedule 1 of this Agreement.
1.3 “Customer Data” means all electronic data or information submitted to the Subscription Services by Customer, the third party on behalf of Customer, or as directed by Customer.
1.4 “Order” means (i) the agreed ordering document for the purchase of the Services, (ii) that is subject to this Agreement, and (iii) that identifies the particulars of the purchase and fees to be paid.
1.5 “Capacity” means the amount of access to the Subscription Services purchased as specified in an Order.
1.6 “User Guide” means the online documentation for the Subscription Service, which includes functional guides and technical specifications, as updated by RiseVPT from time to time.
Subject to Customer’s payment of applicable fees, RiseVPT will provide Customer with access to the Subscription Service as set forth in this Agreement and the applicable Order. An Order may be entered into under this Agreement by and between (a) RiseVPT or an Affiliate of RiseVPT; and (b) the Customer or an Affiliate of Customer. With respect to an Order, the terms “RiseVPT” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two-party agreement between such entities, and RiseVPT will separately invoice the Customer named in the Order for the associated subscription fees. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into an Order.
3.1 Access Rights. Subject to the terms of this Agreement, RiseVPT hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Subscription Services (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the Order.
3.2 RiseVPT Responsibilities. RiseVPT will (i) provide the Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) use commercially reasonable efforts to maintain the security of Customer passwords; (iii) provide the support described on RiseVPT’s website (“Support”) to Customer for the Subscription Services, which may be changed by RiseVPT upon prior notice to Customer. For more information, please visit our support portal and knowledge base.
3.3 Customer Responsibilities and Restrictions.
3.3.1 Customer will (i) prevent unauthorized access to, or use of, the Subscription Services, and notify RiseVPT promptly of any such unauthorized access or use, and (ii) comply with all applicable laws in using the Services.
3.3.2 Customer will not (i) modify, copy or create derivative works based on the Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the Subscription Services; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks; (ix) use any components provided with the Services separately from the Services; or (x) distribute, rent, lease, sublicense or provide the Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
FEES AND PAYMENT.
4.1 Fees. The fees payable and method of payment for the Subscription Services will be set out in the Order and are incorporated into this Agreement by reference and are legally binding.
4.2 Timing of Payment.
4.2.1 Monthly Account. Customer’s credit/debit card (details of which are provided in the Order) will be charged the fees set out in the Order on the same date of each month beginning with the date the Subscription Services were first purchased.
4.2.2 Yearly Account. Customer’s credit/debit card (details of which are provided in the Order) will be charged the fees set out in the Order on the same date each year beginning with the date the Subscription Services were first purchased.
4.2.3 No refunds. Once a Customer has made a payment (including any additional services, custom apps, and add-on features), pursuant to clause 4.2.1 or 4.2.2, the Customer has purchased the Subscription Services for the corresponding period of time and RiseVPT will be under no obligation to refund any payment made if the Customer then chooses to terminate this Agreement or no longer wishes to use the Subscription Services at an earlier date than the end of such period of time.
4.3 Auto-Renewal. If the Customer does not terminate this Agreement in accordance with clause 5 below, then the Agreement will continue and payments will continue to be taken from the Customer’s credit/debit card as per this clause 4 and the Order until such time as this Agreement is properly terminated. All services automatically renew at the standard* rate using the same payment method, unless you request a change or choose to cancel. Prices ex. VAT. *RiseVPT often offers promotions and special offers to Customers during their initial term. These special offers are limited-time promotional prices that are available to new Customers only and are valid for the initial term only. Upon renewal, the Customer will be billed at the regular rates, as are set out in the Order.
4.4 Taxes. Customer will pay or reimburse RiseVPT or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on RiseVPT’s net income or arising from the employment relationship between RiseVPT and its personnel) imposed in connection with the fees paid for the Services, which are exclusive of these taxes.
4.5 Suspension of Subscription Services. In addition to its other rights and remedies, RiseVPT reserves the right, without liability to the Customer, to suspend any and all access to the Subscription Services if Customer’s account becomes more than thirty (30) days past due until all accounts are paid in full. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
TERM AND TERMINATION.
5.1.1 Agreement. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Clause 5.2 below.
5.1.2 Order(s). Each Order will begin on the start date specified in the relevant Order and continue for the subscription term as specified in this Agreement.
5.2.1 Termination for Convenience.
188.8.131.52 Monthly Account. Upon 3 day’s written notice, either party may terminate this Agreement for its convenience.
184.108.40.206 Yearly Account. Upon 30 days’ advance written notice, either party may terminate this Agreement for its convenience. An Order may not be terminated for convenience unless otherwise agreed.
5.2.2 Termination for Cause. Either party may terminate this Agreement for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately 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.
5.2.3 Suspension of Services for Cause. In addition to its other rights and remedies, RiseVPT reserves the right, without liability to Customer, to immediately suspend any and all access to the Services if Customer commits a material breach of this Agreement or an Order until such material breach is cured. If such material breach is (i) unable to be cured, or (ii) is not cured within 30 business days, then RiseVPT may immediately terminate the Agreement and/or the Order.
5.3 Effects of Termination. Upon termination pursuant to 5.2 above, all rights and licenses granted herein will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to RiseVPT. Upon written request by Customer made within 30 days after the effective date of termination, RiseVPT will make available to Customer a file containing the Customer Data. After such 30-day period, RiseVPT shall have no obligation to maintain or provide any Customer Data and may thereafter delete Customer Data.
LIMITED WARRANTY. RiseVPT warrants to Customer that the Subscription Service (i) will perform in substantial accordance with the then-current on-line user guide available via the Subscription Service and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and RiseVPT’s sole obligation for breach of the warranty in this Clause 6 will be RiseVPT’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the applicable user guide, or replace the non-conforming portion of the Subscription Service within a reasonable period of time, or if RiseVPT cannot have the Subscription Service perform in substantial accordance with the user guide or replace the Subscription Service within such time period, then RiseVPT will refund the amount paid by Customer for the Subscription Service, pro-rated from the date of the notice of the claim. Customer’s rights and RiseVPT’s obligations in this Clause 6 are conditioned upon Customer’s providing RiseVPT with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, RiseVPT, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SERVICES OR USE THEREOF. RiseVPT, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. RiseVPT, its Affiliates or licensors retain all right, title and interest to the Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. RiseVPT owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports and any other items used to deliver the Subscription Services or made available to Customer as a result of the Subscription Services (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. RiseVPT reserves any rights not expressly granted to Customer.
7.2 “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to RiseVPT, and its licensors, the Services; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.3 Notice Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, requests for information, or documents in legal proceedings, summons , or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information. Notwithstanding the foregoing, Customer agrees that RiseVPT may refer to Customer as a customer of RiseVPT, both internally and in externally published media.
7.4 Customer Data. As between RiseVPT and Customer, Customer owns all rights, title and interest in and to Customer Data. Customer Data are deemed Confidential Information under this Agreement. RiseVPT will use the Customer Data only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Data from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including applicable privacy laws and regulations and its agreements with third parties who generate and/or process the Customer Data, relating to the collection, use, processing and transfer of Customer Data. Customer acknowledges and consents that Subscription Services provided may require Customer Data to be transferred to a country outside of Customer’s country or the country where the Customer Data originated. Customer is solely responsible for the transmission of Customer Data to RiseVPT and to the Subscription Services.
DISCLAIMERS AND LIMITS ON LIABILITY.
8.1 Disclaimer Customer acknowledges that, except as otherwise expressly provided herein, RiseVPT, its affiliates and licensors make no warranty, express, implied or statutory with respect to the Subscription Services or use thereof. RiseVPT, its affiliates and licensors hereby expressly disclaim all other warranties, including, without limitation, any warranty that services will be uninterrupted, error free or without delay, and the implied warranties of merchantability, fitness for a particular purpose, non-interference, non-infringement and information content.
8.2 Disclaimer of Damages. Except for a breach of Clause 3.3 and each party’s responsibilities in Clause 9, neither party or its affiliates are liable for any special, indirect, incidental, punitive or consequential damages relating to or arising out of this Agreement or the Subscription Services (including, without limitation, lost profits, lost computer usage time, and damage to, or loss of use of, data), even if advised of the possibility of such damages, and irrespective of any negligence of a party or whether such damages result from a claim arising under tort or contract law.
8.3 Limits on Liability. Except for a breach of Clause 3.3 and each party’s responsibilities in Clause 9, neither party or its affiliates shall have aggregate liability arising out of or related to this agreement or the services, whether in contract, tort or under any other theory of liability, exceeding the amounts actually paid by and due from customer pursuant to the order giving rise to liability.
9.1 Indemnification by RiseVPT. If a third party asserts a claim against Customer asserting that Customer’s use of the Services in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then RiseVPT will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Services. If RiseVPT believes the Services may violate a right, then RiseVPT will, at its expense: (a) modify the Services, or (b) procure the right to continue using the Services, and if (a) or (b) are not commercially reasonable, terminate Customer’s right to use the Services and issue a pro-rata refund for the unexpired pre-paid portion of such Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against RiseVPT asserting that the Customer Data or Customer’s use of the Subscription Service in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights, or otherwise harms the third party (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify RiseVPT for any damages finally awarded against RiseVPT based on the Claim.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of England and Wales, and any disputes arising here from shall be exclusively subject to the jurisdiction of the Commonwealth of Massachusetts
MISCELLANEOUS. RiseVPT is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond RiseVPT ‘s reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from RiseVPT and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including any Order constitutes the entire agreement between Customer and RiseVPT and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with RiseVPT licensors and RiseVPT’s licensors have no liability to Customer. No modification or waiver of any provision hereof will be effective unless made in a writing signed by both RiseVPT and Customer. Customer may not assign or transfer this Agreement or the Services to a third party, whether by merger or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by RiseVPT and do not apply. Any additional documents presented to a RiseVPT representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void.