Master Subscription Agreement


CLICKING THE “SUBMIT” BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, OR COMPLETING A WRITTEN ORDER FORM INDICATES YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF SmartBuilder'S ONLINE SERVICE, SMARTBUILDER, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE “SERVICE”). 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 TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT SELECT THE “SUBMIT” BUTTON AND MAY NOT USE THE SERVICE.

Welcome

SmartBuilder will provide you with use of the Service, pursuant to this Agreement and the relevant Order Form, including a browser interface and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the SmartBuilder website incorporated by reference herein, including but not limited to SmartBuilder's privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.

1. Privacy & Security; Disclosure

SmartBuilder's privacy and security policies may be viewed at http://www.smartbuilder.com/privacy. SmartBuilder reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users, when they initially log in, may be asked whether or not they wish to receive marketing and other non-critical Service related communications from SmartBuilder from time to time. They may opt out of receiving such communications at that time or at any subsequent time by changing their preferences. Note that because the Service is a hosted, online application, SmartBuilder occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that SmartBuilder can disclose the fact that you are a paying customer of the Service.

2. License Grant & Restrictions

SmartBuilder hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by SmartBuilder and its licensors.

You may not access the Service if you are a direct competitor of SmartBuilder, except with SmartBuilder's prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the SmartBuilder Content in any way; (ii) modify or make derivative works based upon the Service or the SmartBuilder Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any SmartBuilder Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.

You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

3. Your Responsibilities

You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify SmartBuilder immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to SmartBuilder immediately and use reasonable efforts to stop immediately any copying or distribution of SmartBuilder Content that is known or suspected by you or your Users; and (iii) not impersonate another SmartBuilder user or provide false identity information to gain access to or use the Service.

4. Account Information and Data

SmartBuilder does not own any data, information or material that you submit to the Service in the course of using the Service (“Customer Content”). You, not SmartBuilder, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Content. SmartBuilder shall use commercially reasonable efforts standard in the industry to safeguard your Customer Content from destruction, damage or loss while in SmartBuilder's control. In the event this Agreement is terminated (other than by reason of your breach), SmartBuilder will make available to you all materials, including courses, lessons, raw media, and assets available for download for a period of thirty (30) days at no extra fee if you so request at the time of termination.

5. Intellectual Property Ownership

SmartBuilder alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to SmartBuilder, the SmartBuilder Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, SmartBuilder or the Intellectual Property Rights owned by SmartBuilder. The SmartBuilder name, the SmartBuilder logo, and the product names associated with the Service are trademarks of SmartBuilder or third parties, and no right or license is granted to use them.

6. Confidentiality

Each party agrees to keep confidential all Confidential Information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that neither party shall have any such obligation with respect to use of disclosure to others not parties to this Agreement of such confidential information as can be established to: (a) have been known publicly; (b) have been known generally in the industry before communication by the disclosing party to the recipient; (c) have become know publicly, without fault on the part of the recipient, subsequent to disclosure by the disclosing party; (d) have been known otherwise by the recipient before communication by the disclosing party; or (e) have been received by the recipient without any obligation of confidentiality from a source (other than the disclosing party) lawfully having possession of such information.

Without limiting the above, SmartBuilder shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Content. SmartBuilder shall not (a) modify Customer Content, (b) disclose Customer Content except as compelled by law or as expressly permitted in writing by you, or (c) access Customer Content except to provide the Service or prevent or address service or technical problems, or at your request in connection with customer support matters.

7. Charges and Payment of Fees

You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. In the case of free trial users, no fee shall be due unless you become a paid user by completing a SmartBuilder order form. Payments shall be made in accordance with the terms and conditions set forth by a SmartBuilder order form, or as otherwise mutually agreed upon. All payment obligations are noncancelable and all amounts paid are nonrefundable. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. Except for free trial users, you must provide SmartBuilder with valid credit card or approved purchase order information as a condition to signing up for the Service. An authorized License Administrator may add licenses by executing an additional written Order Form. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. SmartBuilder reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.

8. Billing and Renewal

Approximately thirty (30) days in advance of the expiration of any License Term, SmartBuilder may send you a statement for renewal (“Renewal Notice”) for the following renewal term (one-year, unless otherwise stated in the Renewal Notice), which Renewal Notice may set forth additional terms and prices in the same manner as in the initial Order Form. Payment of the fee specified in the Renewal Notice prior to the expiration of the then-applicable term constitutes acceptance of SmartBuilder's offer to renew the subscription in accordance with the terms of the Renewal Notice as tendered to you and this Agreement. The renewal charge will be equal to the then-current number of total User licenses times the license fee in effect during the prior term, unless SmartBuilder has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. SmartBuilder's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on SmartBuilder's income.

All entities will be billed in U.S. dollars. If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

9. Non-Payment and Suspension

In addition to any other rights granted to SmartBuilder herein, SmartBuilder reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or SmartBuilder initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that SmartBuilder may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.

SmartBuilder reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that SmartBuilder has no obligation to retain Customer Content and that such Customer Content may be irretrievably deleted if your account is 30 days or more delinquent.

10. Termination upon Expiration/Reduction in Number of Licenses

This Agreement commences on the Effective Date. Except for free trial accounts, the Initial Term is one year, or as otherwise specified in the Order Form, commencing on the date you agree to pay for the Service by completing the written Order Form. Upon the expiration of the Initial Term, you may renew this Agreement for successive renewal terms equal in duration to the Initial Term at SmartBuilder's then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), SmartBuilder will make available to you a file of the Customer Content within 30 days of termination if you so request at the time of termination. You agree and acknowledge that SmartBuilder has no obligation to retain the Customer Content, and may delete such Customer Content, more than 30 days after termination.

11. Termination for Cause

Any breach of your payment obligations or unauthorized use of SmartBuilder or Service will be deemed a material breach of this Agreement. SmartBuilder, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, SmartBuilder may terminate a free account at any time in its sole discretion. You agree and acknowledge that SmartBuilder has no obligation to retain the Customer Content, and may delete such Customer Content, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

12. Representations & Warranties and Disclaimers

Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. SmartBuilder represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online SmartBuilder help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 12, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED STATUTORY OR OTHERWISE AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.

13. Mutual Indemnification

13.1 Indemnification by SmartBuilder
SmartBuilder shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Service as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney's fees incurred by, You in connection with any such Claim; provided, that You (i) promptly gives SmartBuilder written notice of the Claim; (ii) give SmartBuilder sole control of the defense and settlement of the Claim (provided that SmartBuilder may not settle any Claim unless the settlement unconditionally releases You of all liability); and (iii) provide to SmartBuilder all reasonable assistance, at SmartBuilder's expense. If the Service or any portion thereof becomes, or in SmartBuilder's opinion is likely to become, the subject of a valid claim of infringement or the like under any U.S. patent, copyright or trade secret law, SmartBuilder shall have the right, at its option and expense, either (1) to obtain a license permitting the continued use of the Service or such portion, (2) to replace or modify such Service so that it becomes noninfringing, or (3) to terminate the Service thereof and refund the depreciated value of the subscription fees paid by You for the Service.

13.2 Indemnification by You
You shall defend SmartBuilder against any Claim made or brought against SmartBuilder by a third party alleging that Your Customer Content, or Your use of the Service in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify SmartBuilder for any damages finally awarded against, and for reasonable attorney's fees incurred by, SmartBuilder in connection with any such Claim; provided, that SmartBuilder (i) promptly gives You written notice of the Claim; (ii) gives You sole control of the defense and settlement of the Claim (provided that Licensee may not settle any Claim unless the settlement unconditionally release SmartBuilder of all liability); and (iii) provides to You all reasonable assistance, at Your expense.

14. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE.

15. Additional Rights

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

16. Local Laws and Export Control

Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) you shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction.

17. Notice

SmartBuilder may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in SmartBuilder's account information, or by written communication sent by first class mail or pre-paid post to your address on record in SmartBuilder's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to SmartBuilder (such notice shall be deemed given when received by SmartBuilder) at any time by any of the following: letter sent by confirmed facsimile to SmartBuilder at the following fax number: (760) 635- 5709; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to SmartBuilder at the following address: SmartBuilder, 523 Encinitas Blvd. Ste 202, Encinitas CA, 92024 addressed to the attention of: Chief Financial Officer.

18. Assignment; Change in Control

This Agreement may not be assigned by you without the prior written approval of SmartBuilder but may be assigned without your consent by SmartBuilder to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of SmartBuilder directly or indirectly owning or controlling 50% or more of you shall entitle SmartBuilder to terminate this Agreement for cause immediately upon written notice.

19. General

This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in California. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and SmartBuilder as a result of this agreement or use of the Service. The failure of SmartBuilder to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by SmartBuilder in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and SmartBuilder and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

20. Definitions

As used in this Agreement and in any Order Forms now or hereafter associated herewith: “Agreement” means these online terms of use, any Order Forms, whether written or submitted online, and any materials available on the SmartBuilder website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by SmartBuilder from time to time in its sole discretion; “Confidential Information” means all confidential information disclosed by a party to the other 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; “SmartBuilder Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service; “Customer Content” means any data, media, information or material provided or submitted by you to the Service in the course of using the Service; “Effective Date” means the earlier of either the date this Agreement is accepted by completing a written Order Form or by selecting the “I Accept” option presented on a screen during the login process or the date you begin using the Service; “Initial Term” means the initial period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g., if the billing frequency is quarterly, the Initial Term is the first quarter); “Renewal Notice” means a statement for renewal of the subscription; “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “License Administrator(s)” means those Users designated by you who are authorized to purchase licenses by executing written Order Forms and to create User accounts and otherwise administer your use of the Service; “License Term(s)” means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s); “Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement; “SmartBuilder” means collectively Strategic Technology Solutions, dba SmartBuilder, a California corporation, having its principal place of business at 523 Encinitas Blvd. Ste 202, Encinitas CA, 92024; “SmartBuilder” means all of SmartBuilder's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by SmartBuilder in providing the Service; “Service(s)” means SmartBuilder's learning content management system and authoring tools or other online learning services identified during the ordering process, developed, operated, and maintained by SmartBuilder, accessible via http://www.smartbuilder.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by SmartBuilder, to which you are being granted access under this Agreement, including SmartBuilder and the SmartBuilder Content; “User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by SmartBuilder at your request).

Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@smartbuilder.com.