Subscription Agreement

Last Modified on March 11, 2019

This Subscription Agreement (collectively, along with the Terms of Use and Privacy Policy, this “Agreement”), effective as of March 11, 2019 (the “Effective Date”), is by and between StartBlox, Inc., a Delaware Corporation with offices located at 1311 Vine St, Cincinnati OH 45202 (“StartBlox”) and you as a subscriber (“Subscriber”) and user of the Website. StartBlox and Subscriber may be referred to herein collectively as the “Parties” or individually as a “Party.”

The Parties agree as follows:

  1. Definitions.
    1. Aggregated Statistics” means data and information related to Subscriber’s use of the Platform that is used by StartBlox in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Platform and to provide the Platform to Subscriber and others.
    2. Authorized User” means Subscriber as well as Subscriber’s employees, consultants, contractors, and agents who are authorized by Subscriber to access and use the Platform under the rights granted to Subscriber pursuant to this Agreement.
    3. Documentation” means StartBlox’s information and guides relating to the Platform provided by StartBlox to Subscriber.
    4. Platform” means the StartBlox Virtual Coach platform described at the StartBlox Website and for which Subscriber has obtained a Subscription under the terms of this Agreement.
    5. StartBlox IP” means the Platform, the Documentation, and any and all intellectual property provided to Subscriber or any Authorized User in connection with the foregoing. For the avoidance of doubt, StartBlox IP includes Aggregated Statistics and any information, data, or other content derived from StartBlox’s monitoring of Subscriber’s access to or use of the Platform, but does not include Subscriber Data.
    6. Subscriber Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted through the Platform by or on behalf of Subscriber or an Authorized User through the Platform.
    7. Subscription” means the configurations and features of the Platform selected for access by the Subscriber, and descriptions of any trial period, fees, discounts, and fee payment made or to be made by Subscriber for such access. Subcscriber may view and manage their Subscription through the Website.
    8. Third-Party Products” means any third-party products described in provided with or incorporated into the Platform.
  2. Access and Use.
    1. Provision of Access. Subject to and conditioned on Subscriber’s payment of Fees and compliance with all other terms and conditions of this Agreement, StartBlox hereby grants Subscriber a non-exclusive, non-transferable (except in compliance with Section 12(f)) right to access and use the Platform during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Subscriber’s internal use. StartBlox shall provide to Subscriber tools for creating a user account, password, or other information needed to access the Platform.
    2. Documentation License. Subject to the terms and conditions contained in this Agreement, StartBlox hereby grants to Subscriber a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 12(f)) license to use the Documentation during the Term solely for Subscriber’s internal business purposes in connection with its use of the Platform.
    3. Use Restrictions. Subscriber shall not use the Platform for any purposes beyond the scope of the access granted in this Agreement. Subscriber shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Platform or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available to a third party the Platform or Documentation or access thereto; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove any proprietary notices from the Platform or Documentation; or (v) use the Platform or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
    4. Reservation of Rights. StartBlox reserves all rights not expressly granted to Subscriber in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Subscriber or any third party any intellectual property rights or licenses, nor any other right, title, or interest in or to the StartBlox IP.
    5. Suspension. Notwithstanding anything to the contrary in this Agreement, StartBlox may temporarily suspend Subscriber’s access to any portion or all of the Platform if: (i) StartBlox reasonably determines that (A) there is a threat or attack on the Platform or any of the StartBlox IP; (B) Subscriber’s use of the StartBlox IP disrupts or poses a security risk to the StartBlox IP or to any other Subscriber or vendor of StartBlox; (C) Subscriber is using the StartBlox IP for fraudulent or illegal activities; (D) subject to applicable law, Subscriber has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) StartBlox’s provision of the Platform to Subscriber is prohibited by applicable law; (ii) any vendor of StartBlox has suspended or terminated StartBlox’s access to or use of any third-party services or products required to enable Subscriber to access the Platform. StartBlox shall use commercially reasonable efforts to provide written notice of any suspension to Subscriber and to provide updates regarding resumption of access to the Platform following any suspension. StartBlox shall use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably possible after the event giving rise to the suspension is cured. StartBlox will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Subscriber or any Authorized User may incur as a result of a suspension.
    6. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, StartBlox may monitor Subscriber’s use of the Platform and collect and compile Aggregated Statistics. As between StartBlox and Subscriber, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by StartBlox. Subscriber acknowledges that StartBlox may compile Aggregated Statistics based on Subscriber Data input into the Platform. Subscriber agrees that StartBlox may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in any manner permitted under applicable law; provided that such Aggregated Statistics do not identify Subscriber or Subscriber’s Confidential Information.
  3. Subscriber Responsibilities.
    1. General. Subscriber is responsible and liable for all uses of the Platform and Documentation resulting from access provided by Subscriber, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Subscriber is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Subscriber will be deemed a breach of this Agreement by Subscriber. Subscriber shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Platform, and shall cause Authorized Users to comply with such provisions.
    2. Third-Party Products. StartBlox may from time to time make Third-Party Products available to Subscriber. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Subscriber does not agree to abide by the applicable terms for any such Third-Party Products, then Subscriber should not use such Third-Party Products.
    3. Platform Features. The Platform may include one or more features allowing Subscriber to store, upload, and manage information and files. Subscriber acknowledges that any such feature is intended to manage and store a limited amount of information relating to the Platform. StartBlox may, in its sole discretion, make any technical changes, including changing the functionality and capabilities of any such feature, to limit or prevent misuse of such features by Subscriber or another.
  4. Platform Availability. While StartBlox does not provide or guarantee a service level for the Platform, it is StartBlox’s goal to have the Platform available and accessible at all times. However, whether due to maintenance issues, a software upgrade, or technical issues the Platform may at times be inaccessible. In the event that the Platform is inaccessible, Subscriber should check the StartBlox Website for updates or contact StartBlox at support@startblox.com for more information.
  5. Fees and Payment.
    1. Fees. Subscriber shall pay StartBlox the fees (“Fees”) as selected, configured, and described in the Subscription without offset or deduction. Subscriber shall make all payments hereunder in US dollars on or before the due date described in the Subscription. If Subscriber fails to make any payment when due, without limiting StartBlox’s other rights and remedies, StartBlox may suspend Subscriber’s access to any portion or all of the Platform until such amounts are paid in full.
    2. Payment. Subscriber shall provide payment details, such as credit card information, via the Website when selecting a Subscription that is associated with any Fees. By providing any payment details, Subscriber authorizes StartBlox to submit for payment of the Fees using such payment details, as the Fees are incurred and due according to the Subscription. StartBlox will make commercially reasonable efforts to warn Subscriber of upcoming automated payment of fees using Subscriber’s payment details, and Subscriber acknowledges that it is Subscriber’s responsibility to modify the Subscription in order to avoid undesrired payment of Fees using Subscriber’s payment details if Subscriber wishes to modify ro cancel their Subscription to the Platform.
    3. Discounted Subscriptions. Some Subscriptions may include a trial period, a coupon code, discount code, an affiliate code, a organizational code, or another configuration that may change, reduce, or eliminate the Fees associated with that Subscription (a “Discounted Subscription”). Discounted Subscriptions may expire as indicated in the Subscription, or, in the case of a Discounted Subscription provided as a result of StartBlox’s relationship with a third-party, may expire upon the termination of that relationship. StartBlox reserves the right to modify or withdraw any expiring Discounted Subscription at the end of the then current Subscription Period.
    4. Taxes. All Fees and other amounts payable by Subscriber under this Agreement are exclusive of taxes and similar assessments. Subscriber is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Subscriber hereunder, other than any taxes imposed on StartBlox’s income.
  6. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
  7. Intellectual Property Ownership; Feedback.
    1. StartBlox IP. Subscriber acknowledges that, as between Subscriber and StartBlox, StartBlox owns all right, title, and interest, including all intellectual property rights, in and to the StartBlox IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
    2. Subscriber Data. StartBlox acknowledges that, as between StartBlox and Subscriber, Subscriber owns all right, title, and interest, including all intellectual property rights, in and to the Subscriber Data. Subscriber hereby grants to StartBlox a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Subscriber Data and perform all acts with respect to the Subscriber Data as may be necessary for StartBlox to provide the Platform to Subscriber, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Subscriber Data incorporated within the Aggregated Statistics.
    3. Feedback. If Subscriber or any of its employees or contractors sends or transmits any communications or materials to StartBlox by mail, email, telephone, or otherwise, suggesting or recommending changes to the StartBlox IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), StartBlox is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Subscriber hereby assigns to StartBlox on Subscriber’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and StartBlox is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although StartBlox is not required to use any Feedback.
  8. Warranty Disclaimer. THE STARTBLOX IP, INCLUDING THE PLATFORM, IS PROVIDED “AS IS” AND STARTBLOX HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. STARTBLOX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. STARTBLOX MAKES NO WARRANTY OF ANY KIND THAT THE STARTBLOX IP, THE PLATFORM, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET SUBSCRIBER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
  9. Subscriber Indemnification. Subscriber shall indemnify, hold harmless, and, at StartBlox’s option, defend StartBlox from and against any losses resulting from any third-party claim that the Subscriber Data, or any use of the Subscriber Data permitted by this Agreement, infringes or misappropriates such third party’s intellectual property rights and any third-party claims based on Subscriber’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Platform in a manner not authorized by this Agreement; (iii) use of the Platform in combination with data, software, hardware, equipment or technology not provided by StartBlox or authorized by StartBlox in writing; or (iv) modifications to the Platform not made by StartBlox, provided that Subscriber may not settle any third-party claim against StartBlox unless StartBlox consents to such settlement, and further provided that StartBlox will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice.
  10. Limitations of Liability. IN NO EVENT WILL STARTBLOX BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER STARTBLOX WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL STARTBLOX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED, DURING ANY 12 MONTH PERIOD, THE TOTAL AMOUNTS PAID TO STARTBLOX UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  11. Term and Termination.
    1. Term. The initial term of this Agreement begins on the date of the Subscription and will continue in effect, on a month-to-month basis (a “Subscription Month”), on a year-to-year basis (a “Subscription Year”), or upon another revolving basis (a “Custom Subscription Period”), as specified in the Subscription (individually, as a Subscription Month, Subscription Year, or Customer Subscription Period, a “Subscription Period”), until either Subscriber modifies or cancels the Subscription, or StartBlox ceases offering the Platform to Subscriber for any reason, at which time the Agreement will terminate at the end of the then current Subscription Period (the “Term”).
    2. Account Deactivation. Due to the nature of the Platform, StartBlox understands that Subscriber may wish to modify the Subscription to change the features accessible to their Subscription from time to time. In such cases, StartBlox recommends modifying the Subscription using the tools provided at the Website, which will provide the Subscriber with options for maintaining the Subscriber Data and other information related to their Subscription for future access and use. Subscriber acknowledges that, if Subscriber fails to maintain a Subscription as described or requests that their account be permanently deactivated, the Subscriber Data and other information related to the Subscription may be irrevocably and irreversibly deleted and will not be available for future access and use on the Platform even if the Subscription is later renewed or reactivated.
    3. Termination. In addition to any other express termination right set forth in this Agreement, StartBlox may terminate this Agreement, effective on written notice to Subscriber, if Subscriber fails to pay any amount when due hereunder, and such failure continues more than 10 days.
    4. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Subscriber shall immediately discontinue use of the StartBlox IP and, without limiting Subscriber’s obligations under Section 6, Subscriber shall delete, destroy, or return all copies of the StartBlox IP. No expiration or termination will affect Subscriber’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Subscriber to any refund.
    5. Survival. This Section 11(e) and Sections 1, 5, 6, 7, 8, 9, 10, and 12 survive any termination or expiration of this Agreement.
  12. Miscellaneous.
    1. Entire Agreement. This Agreement, together with the Terms of Use and the Privacy Policy, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Subscription Agreement, (ii) second, the Terms of Use, and (iii) third, the Privacy Policy.
    2. Force Majeure. In no event shall StartBlox be liable to Subscriber, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond StartBlox’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
    3. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    4. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    5. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted in the federal courts of the United States or the courts of the State of Ohio in each case located in the city of Cincinnati and County of Hamilton, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.
    6. Assignment. Subscriber may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without StartBlox’s prior written consent. StartBlox may provide a tool via the Platform to automatically associate a Subscription with a corporation.  Use of such a tool shall, for the purposes of this section, serve as StartBlox’s prior written consent to assignment of Subcriber’s rights under this Agreement.  Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    7. Export Regulation. The Platform utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Subscriber shall not, directly or indirectly, export, re-export, or release the Platform or the underlying software or technology to, or make the Platform or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Subscriber shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Platform or the underlying software or technology available outside the US.

 

0141544.0717746   4832-5673-8953v1