SLATEPLAN PLATFORM SUBSCRIPTION AGREEMENT

 

This SLATEPLAN PLATFORM SUBSCRIPTION AGREEMENT (the “Agreement”) sets forth the terms and conditions pursuant to which sympl inc., dba Slateplan, a Delaware corporation, with its principal place of business at 27 Jordan Street, Suite D, San Rafael, California 94901 (“Slateplan”) will provide you or the entity that you represent (collectively, “Subscriber”) with the right to access and use Slateplan’s software-as-a-service platform described at www.slateplan.com (the “Service”). Subscriber and Slateplan are each referred to herein as a “Party” and collectively as the “Parties”.

For Subscriber to access and use the Service, a duly authorized representative of Subscriber must check the “I Accept” box where indicated in the registration process, indicating Subscriber’s assent to the terms and conditions set forth below.  BY ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT AND USING THE SERVICE, SUBSCRIBER AGREES THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY OR ON BEHALF OF SUBSCRIBER.

Terms and Conditions


1.    ACCESS TO THE SERVICE.
1.1    Access Right.  Subject to the terms and conditions of this Agreement, Slateplan grants to Subscriber a nonexclusive, nontransferable, non-sublicensable, revocable, limited right to access and use the Service during the Subscription Period (defined below), solely for purposes of Subscriber consulting with clients regarding design plans for their home and office products.  The foregoing license includes the right for employees of Subscriber to access and use the Service solely on behalf of Subscriber, provided that Subscriber shall be responsible for all activities of such employees in connection with their access and use of the Service.  Subscriber may not use the Service for any other purpose or for the benefit of any other party, except as may be permitted in writing by Slateplan.  This access right terminates at the end of the Subscription Period (or earlier termination of this Agreement pursuant to Section 5).
1.2    Restrictions.  Subscriber shall use the Service only for purposes permitted by applicable laws, rules and regulations.  Subscriber shall not and shall not attempt to: (a) distribute, sublicense or otherwise transfer access to the Service to any third party (except as permitted in Section 1.1); (b) use the Service in a service bureau or other resale capacity; (c) reverse engineer, decompile, disassemble, translate, modify, alter or otherwise change the Service (or any part thereof); or (d) derive the source code or structure of the Service (or any part thereof).  Without limiting the foregoing restrictions, Subscriber acknowledges that the Service and all information about the Service is the confidential information of Slateplan and shall not be disclosed to any third party or used by Subscriber to create any software, platform or system which is substantially similar to the Service.
1.3    Account Information and Activity.  Subscriber shall provide Slateplan with complete and accurate account, billing and payment information and keep such information up to date during the Subscription Period.  Subscriber is responsible for all activities that occur under Subscriber’s account, and for maintaining the security and confidentiality of all passwords associated with Subscriber’s account.  If Subscriber becomes aware of any unauthorized or illegal use of Subscriber’s account, Subscriber shall immediately notify Slateplan.
2.    SUBSCRIPTION AND PRICING.
2.1    Subscription Period.  Depending on the plan elected by Subscriber during the registration process, the Service will be made available to Subscriber on either a monthly basis or an annual basis, commencing on the date of Slateplan’s receipt of Subscriber’s payment of the associated Subscription Fee (defined below) and expiring one month or one year thereafter (as the case may be), unless this Agreement is terminated earlier as set forth below (the “Subscription Period”).  Subscriber’s access to the Service may be renewed by the Parties at the conclusion of each Subscription Period on Slateplan’s then-applicable terms and conditions for the Service, subject to Subscriber’s assent to such terms and conditions and payment of the then-applicable Subscription Fee.
2.2    Subscription Fee.  For each Subscription Period, Slateplan will invoice Subscriber for the then-applicable subscription fee set forth at www.slateplan.com (the “Subscription Fee”).  The Subscription Fee excludes all applicable sales, use and other taxes.  Subscriber will be responsible for payment of all such taxes, fees, duties and charges, and any related penalties and interest, that may arise from Subscriber’s use of the Service (other than taxes based on Slateplan’s income).    
2.3    Payment Terms.  Subscriber shall pay Slateplan the Subscription Fee within 30 days of the date of invoice.  If the Subscription Fee is not paid when due, Slateplan reserves the right to charge a late payment fee of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.  If Subscriber withholds payment of any amount due under an invoice that has not been disputed in good faith and in writing prior to the payment due date, Slateplan may suspend Subscriber’s access to the Service until the outstanding balance has been paid in full.  Slateplan will restore access to the Service promptly after all outstanding amounts owed have been paid.
3.    SUPPORT.
3.1    Technical Support.  Slateplan will provide reasonable technical support by telephone and email, Monday through Friday (excluding holidays) and during the hours of 9 a.m. to 5 p.m. Pacific Time, in support of Subscriber’s access to and use of the Service.  Subscriber may contact Slateplan at support@slateplan.com.  Slateplan will respond to and complete any necessary technical repairs within a commercially reasonable amount of time.
3.2    Updates.  From time to time, Slateplan may update the server-side software and other functionality underlying the Service.  Such updates are intended to improve or enhance the Service and may take the form of bug fixes, program code updates and enhancements.  Nothing in this Agreement obligates Slateplan to provide updates or error corrections to the Service.
4.    CLIENT CONTENT.
4.1    Ownership.  Subject to the rights granted to Slateplan under this Agreement, Slateplan acknowledges and agrees that, as between the Parties, Subscriber retains full ownership of all data and other information uploaded to or otherwise made available on the Service through Subscriber’s account (collectively, the “Client Content”), and any intellectual property rights or other proprietary rights thereto.
4.2    Responsibility for Client Content. Subscriber acknowledges and agrees that, as between the Parties, Subscriber is solely responsible for all Client Content and Slateplan has no responsibility for the Client Content.  Notwithstanding the foregoing, Subscriber acknowledges and agrees that Slateplan may, but is not obligated to, review the Client Content from time to time, and may delete or remove from the Service (without notice to Subscriber) any Client Content that in Slateplan’s discretion might be objectionable.  Subscriber agrees that each time it provides Client Content to Slateplan through the Service, Subscriber will retain at least one copy of such Client Content, and Slateplan shall not under any circumstances have possession of the only copy of such Client Content.  
4.3    Licenses to Slateplan.  
(a)    License for the Service.  Subject to the terms and conditions of this Agreement, Subscriber grants Slateplan a nonexclusive, nontransferable, non-sublicensable, paid up and royalty-free, revocable, limited right to use, copy, prepare derivative works of (including excerpting, in whole or in part), distribute and display the Client Content on the Service during the Subscription Period.  In furtherance of the foregoing, Subscriber also authorizes Slateplan to store copies of any or all of the Client Content for the Subscription Period, as necessary to facilitate providing the Service to Subscriber.
(b)    License to Aggregated Data. Subscriber acknowledges that Slateplan may aggregate the Client Content with similar information collected from other subscribers of the Service, and may use and share that information with third parties in aggregated form only.  Any such aggregated information shared with a third party will not identify Subscriber (or any of Subscriber’s clients) individually.
4.4    Necessary Rights.  Subscriber represents and warrants that Subscriber has all rights, licenses, and consents necessary to grant the licenses to Slateplan in Section 4.3, including under any and all intellectual property rights, rights of privacy, rights of publicity or similar rights of any type, in or to the Client Content.  Subscriber shall not upload to or otherwise make available on the Service any Client Content for which Subscriber does not have all such necessary rights, licenses, or consents.  
4.5    Security.  Slateplan will employ measures in connection with the Service consistent with industry best practices regarding data security intended to protect all data on the Service from loss, misuse, alteration, or destruction.  NOTWITHSTANDING THE FOREGOING, SUBSCRIBER ACKNOWLEDGES THAT NO SECURITY MEASURE CAN FULLY PROTECT AGAINST COMPROMISE, AND THAT THE SERVICE IS RUN ON SOFTWARE, HARDWARE AND NETWORKS, ANY COMPONENT OF WHICH MAY FROM TIME TO TIME EXPERIENCE PROBLEMS OR BREACHES OF SECURITY BEYOND SLATEPLAN’S CONTROL.  SLATEPLAN DOES NOT GUARANTEE THAT THE SERVICE WILL NOT EXPERIENCE ANY SUCH COMPROMISE.  SUBSCRIBER ACKNOWLEDGES THAT SLATEPLAN HAS NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OF OR FAILURE TO STORE ANY OF THE CLIENT CONTENT.  
5.    TERMINATION.
5.1    Termination.  Slateplan may terminate this Agreement (and Subscriber’s right to access the Service) at any time if Subscriber does not pay the Subscription Fee when due and fails to make such payment within 30 days after receiving a reminder from Slateplan in writing.  Either Party may also terminate this Agreement (and Subscriber’s right to access the Service) prior to the end of the Subscription Period if the other Party has committed any other material breach of this Agreement and failed to cure such material breach within 30 days after receiving written notice of the breach from the non-breaching Party. 
5.2    Effects of Termination.  Upon the expiration of the Subscription Period or earlier termination of this Agreement, Slateplan will disable Subscriber’s access to the Service.  Termination of this Agreement will not relieve either Party from its obligation to comply with any terms of this Agreement that call for performance prior or subsequent to the effective date of such termination, including Subscriber’s obligation to pay for access to the Service for periods prior to such termination date. 
6.    INTELLECTUAL PROPERTY RIGHTS.
6.1    Reservation of Rights.  All rights to the Service not expressly granted herein are reserved by Slateplan.  Nothing in this Agreement is intended by the Parties to constitute a sale of any software or associated documentation underlying the Service, or any derivations thereof.  Slateplan reserves the right to modify the Service at any time in Slateplan’s discretion.
6.2    Title.  The Service (including the software and all associated documentation) is the valuable proprietary and trade secret information and property of Slateplan.  Title, ownership rights and intellectual property rights, including but not limited to, any and all copyright and patent rights, in the Service, and all derivatives thereof, shall remain with Slateplan and its licensors.  Subscriber acknowledges the ownership and intellectual property rights of Slateplan in the Service, and will not take any action to jeopardize, limit or interfere in any manner with such ownership or other rights.
6.3    Trademarks.  All trademarks, service marks, logos and trade names associated with Slateplan and/or the Service, whether registered or unregistered, are proprietary to Slateplan (or to other companies where so indicated).  Subscriber shall not use any such marks in connection with any product or service or in any manner that is likely to cause confusion, and shall not copy, imitate, or use any such marks, in whole or in part, without the prior written permission of Slateplan.
7.    INDEMNIFICATION.
Subscriber acknowledges that by providing Subscriber with access to the Service, Slateplan does not assume any responsibility or liability for any risks associated with Subscriber’s business.  Accordingly, Subscriber shall indemnify, defend, and hold harmless Slateplan and its officers, directors, employees and representatives from and against all claims by any third party arising out of or relating in any way to the conduct of Subscriber’s business or the use of or inability to use the Service, and all associated losses, costs, damages, and settlements, including reasonable legal fees and expenses.  In the event of a claim in respect of which Slateplan seeks indemnification from Subscriber under this Section 7, Slateplan will promptly notify Subscriber in writing of the claim, cooperate with Subscriber in defending or settling the claim at Subscriber’s expense, and allow Subscriber to control the defense and settlement of the claim; provided, however, that any settlement intended to bind, or which may adversely affect, Slateplan or any of its officers, directors, employees and representatives shall not be final without Slateplan’s prior written consent.
8.    DISCLAIMERS AND LIMITATIONS OF LIABILITY.
8.1    Disclaimers.  THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED. SLATEPLAN DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  SLATEPLAN DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET YOUR NEEDS OR REQUIREMENTS; THAT ANY BUDGET OR OTHER CONTENT GENERATED BY THE SERVICE WILL BE ACCURATE OR RELIABLE; THAT USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; OR THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED. 
8.2    Limitations of Liability.  IN NO EVENT WILL SLATEPLAN BE LIABLE TO SUBSCRIBER FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS; GOODWILL OR REPUTATION, OR FOR ANY OTHER CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND, EVEN IF SLATEPLAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  WITHOUT LIMITING THE FOREGOING, SLATEPLAN SHALL HAVE NO LIABILITY FOR ANY CLAIMS OF ANY OF SUBSCRIBER’S CLIENTS, INCLUDING WITHOUT LIMITATION RELATED TO ANY EQUIPMENT OBTAINED BY OR FOR SUCH CLIENT FOLLOWING SUBSCRIBER’S USE OF THE SERVICE, OR ANY INSTALLATION, PROGRAMMING OR SERVICING OF SUCH EQUIPMENT.  IN NO EVENT WILL SLATEPLAN’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED THE AMOUNTS PAID TO SLATEPLAN BY SUBSCRIBER UNDER THIS AGREEMENT. The Parties acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this Agreement would be substantially different. 
9.    MISCELLANEOUS.
9.1    Governing Law.  This Agreement shall be governed by the laws of the state of California, without reference to the choice of law or conflicts of law principles thereof.  The relationship among the Parties, including all rights and responsibilities among the Parties, and all claims relating to or arising out of this Agreement, the breach of this Agreement, or the relationship of the Parties, shall likewise be governed by the laws of the state of California without reference to the choice of law or conflicts of law principles thereof.
9.2    Arbitration of Disputes.  Any dispute, claim or controversy arising out of or in connection with this Agreement or the relationship of the Parties, or the breach, termination, enforcement, interpretation or validity of this Agreement (“Dispute”), including the determination of the scope or applicability of this Agreement to arbitrate, shall be finally decided by arbitration in accordance with JAMS Comprehensive Arbitration Rules and Procedures before a panel of three JAMS arbitrators, one selected by Slateplan, one selected by Subscriber, and the third, who shall be the chairman, selected by agreement of the two arbitrators selected by the Parties.  In the event the two arbitrators fail to agree on the selection of the third arbitrator within 30 days following the selection of the second arbitrator, the chairman shall be selected in accordance with the JAMS Comprehensive Arbitration Rules and Procedures.  Subject to any valid requirements of any applicable statute, the arbitration shall be conducted in San Francisco, California.  Each Party may be represented by counsel in any such arbitration.  During the course of any arbitration hereunder, the Parties will (i) each bear its own costs and attorneys’ fees and any expert witness fees, and (ii) each bear equally the arbitrators’ fees and expenses.  Any arbitration under this Agreement shall be confidential, and the Parties may request that the arbitrators issue appropriate protective orders to safeguard each Party’s confidential information.  Any award rendered by the arbitrators shall be final, and judgment may be entered upon it in any court having jurisdiction.  The arbitrators shall have the authority to award temporary, preliminary and permanent injunctive and equitable relief in the arbitration (in addition to any monetary relief); provided, however, that either Party may opt to seek equitable relief, including emergency injunctive relief, at any time, from a court of competent jurisdiction.  The existence of any Dispute, and any related resolution, mediation, settlement, or arbitration decision, shall be kept in confidence by the Parties, except as required in connection with the enforcement of an arbitration decision or as otherwise required by applicable law.
9.3    No Assignment.  Neither Party may assign or otherwise transfer this Agreement or any rights granted under this Agreement without the prior written consent of the other Party, and any purported assignment without such prior written consent shall be void.
9.4    Testimonials; Publicity.  Upon Slateplan’s request, Subscriber will provide Slateplan with a testimonial regarding the Service, and if approved by Subscriber in writing Slateplan may use such testimonial, along with Subscriber’s name and logo in connection with such testimonial, on Slateplan’s websites and in other marketing materials. Except as set forth in the foregoing sentence, each Party shall not use the name or any trademark of the other Party in any press release, marketing materials, or other disclosures, without the prior written consent of such other Party.
9.5    No Implied Licenses.  No other rights, immunities or licenses are granted under this Agreement by any Party, either expressly or by implication, estoppel or otherwise, except as expressly set forth in this Agreement.
9.6    No Waiver.  The waiver by any Party of any right hereunder or the failure to perform or of a breach by another Party shall not be deemed a waiver of any other right hereunder or of any other breach or failure by said other Party whether of a similar nature or otherwise.
9.7    Severability.  In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction (or arbitration panel) to be illegal, unenforceable or void, this Agreement shall continue in full force and effect to the fullest extent permitted by law without said provision, and the Parties shall amend this Agreement to the extent feasible to lawfully include the substance of the excluded term to as fully as possible realize the intent of the Parties and their commercial bargain under this Agreement.
9.8    Independent Contractors.  The relationship of the Parties is intended to be that of independent contractors.  Neither Slateplan nor Subscriber shall be deemed to be an agent, partner or joint venturer of the other for any purpose as a result of this Agreement or the transactions contemplated by this Agreement. 
9.9    Notices.  Any notice or consent required or permitted to be given under this Agreement shall be in writing, and shall be deemed to have been given when delivered personally, or sent via a nationally recognized overnight courier, or sent via registered mail return receipt requested, to the other Party’s address specified in the preamble of this Agreement (for Slateplan) or the registration process (for Subscriber).
9.10    Complete Agreement.  This Agreement constitutes the entire agreement, both written and oral, between the Parties with respect to the subject matter hereof, and all prior agreements and understandings respecting the subject matter hereof, either written or oral, express or implied, shall be abrogated, canceled and are null and void and of no effect.