Subscription Agreement | Gridiron Software

(Last Updated: December 6, 2010)

The following Subscription Agreement (the "Agreement") governs Your use of the GridIron Service provided to you ("You") by GridIron Software, Inc. ("GridIron") and, by Your use of the GridIron Service, You are agreeing to them. This Agreement, together with any other policies or guidelines posted on the GridIron web site (the "Site") and any other written agreements between You and GridIron (collectively, the "Other Agreements"), shall govern Your use of the GridIron Service. Please read this Agreement carefully before using the GridIron Service. Should you have any questions concerning this Agreement, please contact flowsupport@gridironsoftware.com. The GridIron Service is available ONLY TO USERS 18 YEARS OF AGE OR OLDER. Key Terms used but not defined herein are defined in the GridIron Key Terms Definition, incorporated herein by reference. Hyperlinks to the GridIron Key Terms Definitions are provided on the first use of each Key Term herein.

1. PRIVACY

You understand and agree that by using the GridIron Service, You consent to the collection and use of certain information about You and Your use of the GridIron Service in accordance with the GridIron Privacy Policy. For more information, please read the full GridIron Privacy Policy. You further understand and agree that any information collected by GridIron may be transferred to the United States and/or other countries for storage, processing and use by GridIron and/or its affiliates.

2. MODIFICATIONS TO THIS AGREEMENT

GridIron reserves the right, in its sole discretion, to change, modify or otherwise alter this Agreement at any time. You can find the most recent version of the Agreement on the Site, with the date of last modification noted above. Such modifications shall become effective immediately upon posting. Therefore, GridIron encourages You to check the date of the latest version of the Subscription Agreement whenever You visit the Site to check if it has been updated. You must review this Agreement on a regular basis to keep Yourself apprised of any changes. If You do not agree to the revised Subscription Agreement, Your sole recourse is to immediately stop all use of the GridIron Service and GridIron Technology. Your continued use of the GridIron Service following the posting of modifications will constitute Your acceptance of the revised Subscription Agreement.

3. USE RIGHTS AND RESTRICTIONS; YOUR RESPONSIBILITIES

3.1 Use Rights; Restrictions. Subject to the terms of this Agreement, GridIron grants to You during the Subscription Term the non-transferable, non-exclusive right to use the GridIron Service (and any GridIron Materials provided to You), solely for Your own internal business operations. The rights granted to You in this Agreement are subject to the following restrictions: (i) You shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit or make the GridIron Service or the GridIron Materials available to any third party; (ii) You shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the GridIron Service or GridIron Materials, or access or use the GridIron Service or GridIron Materials in order to build a similar or competitive product or service; (iii) You may not use the Agent in connection with any software product or any other software as a service not provided by GridIron including but not limited to use of the Agent to populate databases in any software program or software as a service not provided by GridIron unless otherwise agreed to in writing by GridIron; (iv) except as expressly stated herein, no part of the GridIron Service or GridIron Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (v) You shall not attempt to harm, disrupt or otherwise engage in activity that diminishes the Site, computer systems, networks or the GridIron Service or interfere with anyone else's use of the Site or GridIron Service; and (vi) You acknowledge and agree that GridIron shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the GridIron Service (including the Agent), the GridIron Materials, and any suggestions, enhancement requests, feedback, recommendations or other information provided by You relating to the GridIron Service or the GridIron Materials.

3.2 Agent. You will receive license rights to the Agent in connection with your use of the GridIron Service, with each user account being entitled to one license to the Agent. The Agent is subject to an end user license agreement distributed therewith.

3.3 General Requirements for Use of the GridIron Service. In order to use the GridIron Service, You must have access to the Internet and provide all equipment necessary to make and maintain such connection. In order to use the GridIron Service, you will be required to register with GridIron. You agree to: (a) provide true, accurate, current and complete information about Yourself as prompted by the registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Except as otherwise provided in this Agreement, You further agree that GridIron may provide any and all notices, statements, and other communications to You through either e-mail to the Your e-mail address provided in the Registration Data or posting on the GridIron Service.

3.4 Passwords, Access. You will maintain a unique, and be responsible for the confidentiality and use of Your, user name and password. GridIron will act as though any electronic communications it receives under Your passwords and user names have been sent by You. You agree to immediately notify GridIron if You become aware of any loss or theft or unauthorized use of any of Your passwords and user names. You agree not to access the GridIron Service by any means other than through the interfaces that are provided by GridIron.

3.5 Transmission Of Data. You understand that the technical processing and transmission of Your Data and Metadata (including possibly transmission of Your Data and Metadata outside its country of origin) is necessary to Your use of the GridIron Service, and consent to GridIron's interception and storage of Your Data and Metadata. You understand that You or GridIron may be transmitting Your Data or Metadata over the Internet, and over various networks, only part of which may be owned and/or operated by GridIron. You agree that GridIron is not responsible for any portions of Your Data or Metadata that are lost, altered, intercepted or stored without authorization during the transmission of Your Data or Metadata across networks not owned and/or operated by GridIron.

3.6 Storage And Collection of Metadata. You acknowledge and agree that through the Agent, the GridIron Service will monitor, record, collect and transmit Metadata relating to Your Data. Such Metadata may be stored and maintained in the Gridiron Service both during and after expiration or termination of this Agreement indefinitely. Further, notwithstanding any expiration or termination of this Agreement, provided that the Agent is still installed and running on any particular computer, the Agent will continue to monitor, record, collect and transmit Metadata for inclusion in the GridIron Service and all other authorized uses. You will be provided with an option (accessible through Your use of the Agent on Your device in which the Agent has been installed) to render the Agent inoperable. YOU UNDERSTAND AND AGREE THAT IN ORDER TO STOP THE MONITORING, RECORDING, COLLECTION AND TRANSMISSION OF THE METADATA, YOU MUST UNINSTALL THE AGENT OR OTHERWISE RENDER IT INOPERABLE. YOU FURTHER UNDERSTAND AND AGREE THAT THE AGENT MAY NOT BE RENDERED INOPERABLE THROUGH YOUR ONLINE USER ACCOUNT, ONLY THROUGH THE AGENT INTERFACE.

4. SUPPORT

During the Subscription Term, You will be entitled to Support as offered by GridIron from time to time.

5. SUBSCRIPTION FEES; PAYMENT

5.1 Fees. The fees for the GridIron Service are available at http://www.gridironsoftware.com/products and are payable in advance for the period selected (monthly, yearly or otherwise), irrevocable and non-refundable except as set forth in Section 5.2 below. GridIron reserves the right to change the fees and to institute new charges at any time, upon thirty (30) days prior notice to You (which may be sent by email to the address You provided in Your Registration Data). Late payments shall be subject to a service charge of one and a half percent (1.5 %) per month, or the maximum charge permitted by law, whichever is less.

5.2 Refunds. When You cancel Your account, You will not be issued a refund for Your most recent (or any previous) billing. The single exception to this is annual subscribers. Annual subscribers who wish to cancel and request a refund may do so within 30 days of the day on which they were charged for their account; in these cases, only a partial refund equivalent to 80% of the annual fee will be returned. Other requests for refunds may be processed at the sole discretion of GridIron. All cancellations are processed automatically. To cancel, please click the link that says "Click here to cancel your account" and follow the instructions. Cancellation requests sent via email to GridIron will not be processed and will be replied to with an automatic response. You must use the GridIron form to process Your cancellation.

5.3 Non-Payment. GridIron reserves the right to suspend Your access and/or use of the GridIron Service for which any payment is overdue. You agree that GridIron shall not be liable to You nor to any third party for any suspension of the GridIron Service resulting from Your non-payment of fees. Upon payment in full of all amounts overdue (including any interest owed), You may request the reactivation of Your account. GridIron shall promptly reactivate Your account, provided that (a) GridIron has not already terminated this Agreement pursuant to Section 8; and (2) You have paid GridIron in advance all applicable reactivation fees. GridIron will not terminate an Agreement for non-payment until thirty (30) days after having suspending access and/or use of the GridIron Service.

6. INTELLECTUAL PROPERTY RIGHTS; YOUR DATA; CONFIDENTIALITY

6.1 Intellectual Property Rights. GridIron and its licensors own all right, title and interest to the GridIron Technology, the GridIron Service and any modifications, ideas, or recommendations provided by You. This Agreement does not convey or transfer any ownership rights in the GridIron Service or GridIron Technology.

6.2 Your Data and Metadata. In the course of using the GridIron Service, You may submit to GridIron or the GridIron Service may collect Your Data and Metadata. As between You and GridIron, You shall remain the sole owner of Your Data and Metadata. You hereby grant to GridIron the perpetual, irrevocable, worldwide, royalty-free, fully-paid up, non-exclusive, sublicensable right to access, use, copy, modify, make derivative works of, delete, distribute, transfer, transmit, publish and display Your Data and Metadata (a) solely in connection with GridIron's operation of the GridIron Service and (b) without limitation in any manner GridIron determines appropriate provided that Your Data and the Metadata is aggregated with other data and no longer contains any Personal Information. You, not GridIron, shall have responsibility for the accuracy, integrity, and reliability of Your Data and Metadata, and GridIron shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data or Metadata. GridIron will protect any of Your Data provided to GridIron by You in the course of using the GridIron Service as confidential in accordance with Section 6.3 below. YOU ACKNOWLEDGE AND AGREE THAT METADATA IS NOT PROTECTED AS CONFIDENTIAL INFORMATION UNDER SECTION 6.3 BELOW AND THAT GRIDIRON MAY DISCLOSE METADATA TO THIRD PARTIES IN THE COURSE OF GRIDIRON'S OPERATION OF THE GRIDIRON SERVICE.

6.3 Confidential Information. For purposes of this Agreement, confidential information shall include Your Data, the GridIron Service and GridIron Materials, and any other information that is clearly identified in writing at the time of disclosure as confidential ("Confidential Information"); provided, however, that Confidential Information shall not include any information contained in Metadata. Each party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those officers and employees, if any, of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as 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 such Confidential Information). GridIron may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for GridIron. Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient; or (5) was independently developed by the recipient without use of or reference to any Confidential Information belonging to the disclosing party. This Section 6.3 will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.

7. WARRANTIES; LIABILITY LIMITATIONS; INDEMNIFICATION

7.1 Customer Warranties. By completing the registration process for the GridIron Service, You represent and warrant that You have read, understand, have the legal capacity to, and hereby agree to be legally bound by this Agreement. You further warrant that You have all necessary rights in and to all Your Data as provided to GridIron for its authorized use hereunder.

7.2 Disclaimer of Warranties. GRIDIRON PROVIDES THE GRIDIRON SERVICES “AS IS,” “AS AVAILABLE,” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. GRIDIRON DOES NOT WARRANT THAT THE GRIDIRON MATERIALS OR GRIDIRON SERVICE WILL BE ERROR-FREE. GRIDIRON IS IN NO WAY LIABLE FOR AND UNDER NO CIRCUMSTANCES SHALL GRIDIRON BE HELD ACCOUNTABLE FOR THE LOSS OF METADATA OR YOUR DATA. THERE ARE NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT.

7.3 Limitation of Liability. YOU ACKNOWLEDGE AND AGREE THAT THE CONSIDERATION CHARGED BY GRIDIRON HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY GRIDIRON OF THE RISK OF YOUR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GRIDIRON BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOST PROFITS OR LOSS OF OTHER ECONOMIC ADVANTAGE) ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR GRIDIRON'S PERFORMANCE HEREUNDER, INCLUDING WITHOUT LIMITATION (A) THE GRIDIRON SERVICE, (B) ANY INTERRUPTION OF USE OF THE GRIDIRON SERVICE, OR (C) FOR LOSS, INACCURACY OR CORRUPTION OF YOUR DATA OR THE METADATA, EVEN IF GRIDIRON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL GRIDIRON'S LIABILITY HEREUNDER EXCEED THE AMOUNT THAT YOU PAID TO GRIDIRON UNDER THIS AGREEMENT DURING THE PREVIOUS TWELVE MONTHS.

7.4 Indemnification. You agree to indemnify, defend and hold harmless, GridIron, its affiliates, and their respective officers, directors, employees, agents, licensors, representatives, and third party providers, to and from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of this Agreement by You or any other actions connected with Your use of the GridIron Service; provided that GridIron (a) promptly gives You notice of the claim, suit, action, or proceeding; (b) gives You sole control of the defense and related settlement negotiations, subject to a right of approval by GridIron of any settlement which shall impose a financial or other obligation on GridIron; and (c) provides You with all reasonably available information and assistance necessary to perform Your obligations under this Section. GridIron reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by You, in which event You will fully cooperate with GridIron in asserting any available defenses.

8. TERM AND TERMINATION

8.1 Initial Term; Renewal Terms. The Subscription Term shall commence upon the date set forth at the time You register and shall continue for the period of time set forth in your registration confirmation. Unless specifically agreed upon in writing between You and GridIron at the commencement of a Subscription Term, or unless You notify GridIron via flowsupport@gridironsoftware.com (with cancellation confirmation from GridIron) no later than fourteen days prior to the conclusion of the term, at the conclusion of any Subscription Term, whether monthly, yearly, or otherwise, GridIron will automatically renew the service for the same term and will charge the Your credit card or PayPal account on the first day of the renewal term.

8.2 Termination; Effect of Expiration or Termination. In the event of any breach of this Agreement by either party, the non-breaching party shall have the right to terminate the Agreement for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. GridIron shall also have the suspension rights set forth in Section 5.3 in the event of non-payment. Upon any termination of the Agreement, (a) Your right to access and use the GridIron Service and GridIron Materials shall terminate; and (b) if GridIron notifies You that it needs to remove the Agent installed on Your machines, You agree to promptly remove the Agent and confirm such removal in writing to GridIron. UPON ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT, YOU AGREE THAT (A) GRIDIRON HAS NO OBLIGATION TO RETAIN THE METADATA, YOUR DATA OR ANY GRIDIRON TECHNOLOGY REQUIRED TO PROVIDE YOU THE GRIDIRON SERVICES AND (B) ALL MAY BE IRRETRIEVABLY DELETED FROM THE GRIDIRON SERVICE; provided, however, GridIron is permitted to retain such Metadata pursuant to Section 3.6. Your obligation to make a payment of any outstanding, unpaid fees and reimbursable expenses shall survive termination of this Agreement. In addition, the following provisions shall survive any termination of this Agreement: Sections 6, 7, 8.2, and 9. Further, should you choose not to deactivate the Agent at the time this Agreement terminates, Your License for the Agent shall survive termination of this Agreement.

9. GENERAL PROVISIONS

9.1 Notice. Notices regarding this Agreement to GridIron shall be in writing and sent by first class mail or overnight courier (if from within the USA), or international courier, addressed to GridIron at the address provided on http://www.gridironsoftware.com/gridiron/contact. GridIron may give notice applicable to GridIron's general GridIron Service customer base by means of a general notice on the GridIron Service, and notices specific to You by electronic mail to Your e-mail address on record with GridIron, or by written communication sent by first class mail or overnight courier (if to an address within the USA), or international courier, to Your address on record with GridIron. All notices shall be deemed to have been given three days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or 12 hours after sending by confirmed facsimile, e-mail or posting to the GridIron Service.

9.2 Force Majeure. Except for Your obligation to pay for the GridIron Service, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof.

9.3 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of California and controlling U.S. federal law. The Uniform Computer Information Transactions Act, the United Nations Convention on the International Sale of Goods, and choice of law rules of any jurisdiction will not apply to this Agreement. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in Los Angeles County, California, and each party hereby submits to the personal jurisdiction of such courts and waives any defense relating to venue or forum non convenience.

9.4 Integration; Modification. This Agreement together with any Other Agreements, represents the parties' entire understanding relating to the GridIron Service and the GridIron Technology, and supersedes any prior or contemporaneous, conflicting or additional, communications. Except as otherwise set forth herein, the terms and conditions of this Agreement may only be amended by written agreement of the parties.

9.5 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.

9.6 Relationship of Parties. No joint venture, partnership, employment, or agency relationship exists between GridIron and You as a result of this Agreement or use of the GridIron Service.

9.7 Assignment. You may not assign this Agreement without the prior written approval of GridIron. Any purported assignment in violation of this Section shall be void. GridIron reserves the right to provide some or all of the GridIron Service (including but not limited to Support) from locations, and/or through use of third party providers, located worldwide.

9.8 Waiver. The failure of either party 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 such party in writing.