Terms & Conditions

Thank you for purchasing one of our products or services! Your purchase is subject to the following terms & conditions. We know reading lengthy legalese is a drag. We appreciate you taking the time.

Confidentiality

Trade Secrets and Confidentiality. During the course of delivering the Subtextive product, the Customer and Subtextive (“the parties”) will have occasion to exchange Proprietary Information. They will respect the confidentiality of each other’s Proprietary Information, in accordance with the requirements of this section. For purposes of this section, each party is a Provider with respect to Proprietary Information it Provider, and a Receiver with respect to Proprietary Information it receives.

What is Proprietary Information? “Proprietary Information”, for purposes of this Agreement, shall include either the Customer’s or Subtextive’s proprietary business or technical information (including but not limited to trade secrets, methodologies, inventions, tools, designs, utilities, specifications, algorithms, software, software code (whether source or object code) formula, financial plans and records, marketing plans, business strategies and/or methodologies, trade secrets, present and proposed products, development and other methodologies, electrical or other design schematics, computer software programs, source code, relationships with third parties, customer lists, personnel information and information regarding customers and suppliers or compilations of any type or format whatsoever disclosed in any manner or form) and a party’s intellectual property, including all copyrights, mask works, trademarks, patents, trade secrets and or other industrial property rights or any component or characteristic thereof information identified in the delivery of any particular product as Confidential or Proprietary to either party, and such other information as may be conspicuously marked “Proprietary to (Provider)” or “Confidential”, or with similar legend, before transmittal. It may include information proprietary to a third party, such as (but not limited to) Subtextive’s subcontractors or other third parties with business relationships with either Subtextive or Customer.

When Proprietary Information Ceases being Proprietary. Proprietary Information loses that status if: (1) The information becomes publicly available (unless because Receiver breached this Agreement); (2) Receiver gets it without restrictions from a third party who has the right to hold and to disclose it; (3) Receiver develops it independently, or already knew it when Provider gave it; or (4) Provider provides it to anyone else without confidentiality limitations.

Protection and Use. Until two (2) years after the delivery of the Subtextive product to the Customer, Receiver will not disclose Proprietary Information to any third party without the Provider’s written consent, and will protect the Proprietary Information by using the same degree of care, but no less than a reasonable degree of care, as Receiver uses to protect its own similar proprietary data. Receiver will use the Proprietary Information only for purposes consistent with the mutual purposes of the purchase and delivery of the Subtextive product.

Who May have Access to Proprietary Information. Receiver may give Proprietary Information to Receiver’s employees, contractors, and consultants who have signed nondisclosure agreements with the Receiver, if they are fulfilling internal business purposes for Receiver and need access to Proprietary Information to achieve the purposes of this Agreement.

Obligation of Surrender. On request, Receiver shall surrender the original and any complete or partial copies of any Proprietary Information to Provider, or shall destroy all such originals and copies, and shall certify in writing signed by an officer of Receiver that no record of the requested Proprietary Information has been retained, provided that Proprietary Information that is part of the Subtextive product for which payment is timely made may not be recalled by Provider.

Intellectual Property Rights and Ownership of Work Product

Work Product. As used herein, the term “Work Product” means all materials, software, tools, data, inventions, works of authorship and other innovations of any kind, and any improvements or modifications to Customer's proprietary computer software programs and related materials that Subtextive may make, conceive, develop or reduce to practice, alone or jointly with others, in the course of delivering The Product, whether or not eligible for patent, copyright, trademark, trade secret or other legal protection. Customer agrees that all Work Product shall be the property of Subtextive and hereby assigns all rights it may have in the Work Product and in all related patents, patent applications, copyrights, mask work rights, trademarks, trade secrets, rights of priority and other proprietary rights to Subtextive. Customer acknowledges that Subtextive in its sole discretion, shall have the right to license the Work Product or any portion thereof, and/or incorporate the Work Product or any portion thereof into Subtextive products, for use by other licensees or clients of Subtextive.

License to Work Product. Subtextive grants to Customer a perpetual, nontransferable, nonexclusive, worldwide license to use any Work Product developed by Subtextive for Customer under this Agreement.

Joint Development. Any idea, concept, know-how or technique that is developed by the parties while this Agreement is in effect shall be jointly owned by the parties (and each party hereby assigns to the other party an equal and undivided one-half interest therein) and may (subject to applicable patents and copyrights) be freely used by either party without the consent of the other party and without any accounting to or additional consideration payable to the other party.

Customer’s Ownership Rights. Customer shall own all right, title and interest in and to the Customer’s Proprietary Information. Where Subtextive retains any copies of Customer’sProprietary Information (in any format) for archival purposes, Subtextive may only use information in furtherance of Services performed for the Customer hereunder and for the purpose of verifying any Customer’s ownership therein.

Subtextive Ownership Rights. Subtextive shall own all right, title and interest in and to its Proprietary Information, used or disclosed to Customer in connection with the Subtextive products under this Agreement, which information was either developed or in development (i) prior to or otherwise independently of Subtextive’s Services under this Agreement or; (ii) during the development of the product, if relating to trade secrets, methodologies, inventions, tools, designs, utilities, software or software code, algorithms, data and materials of general use or applicability by Subtextive in Subtextive’s business and not incorporating, or dependent for their effectiveness on any of the Customer's Proprietary Information (“Subtextive Proprietary Information”).

License to Subtextive Proprietary Information. Insofar as Subtextive incorporates any of Subtextive’s Proprietary Information into any Work Product, Subtextive hereby grants to Customer a fully paid up, non-exclusive, worldwide, perpetual, transferable, license to use Subtextive’s Proprietary Information for Customer’s internal use and development. License to Subtextuve Proprietary information excludes Customer's external distribution, sale, re-sale and other licensing of the Product.

Third Party Code and Third Party Content. Third Party Code is any software acquired from a third party, the functioning of which is integral to the operations of a Subtextive product. Intellectual property rights in Third Party Code are to be determined based on licenses obtained directly from the third party. Third Party Content is content acquired from a third party, the inclusion of which is integral to the operations of a Subtextive product. Intellectual property rights in Third Party Content are to be determined based on licenses obtained directly from the third party. To the extent that any Third Party Code or Third Party Content is included in a Subtextive product, any third party licenses required for access or use of the same shall be called out in the product.

Representations, Indemnity and Damages

Representations and Warranties. Each party represents, warrants, and covenants to the other party as follows: (a) each party has full right, power, and authority to enter into this Agreement and to perform the duties and obligations contemplated hereby; (b) the execution and delivery of this Agreement by each party does not: (i) violate any terms or provisions of any law or any order, writ, or judgment under which such party is bound; or (ii) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default under, or give to any person or entity any right of termination, cancellation, acceleration, or modification in or with respect to any contract to which such party is a party; (c) each party will use its best professional efforts in the performance and completion of any and all duties which may be assigned to it from time to time in accordance with this Agreement; and (d) each party will perform all of its duties and obligations hereunder in a good and workman-like manner, and in compliance with all Federal, State, and Local laws.

Limitation of Warranty and Liability.  SUBTEXTIVE MAKES NO WARRANTIES WITH REGARD TO THE PRODUCTS OR SERVICES PROVIDED TO CUSTOMER PURSUANT TO THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  SUBTEXTIVE DOES NOT WARRANT OR REPRESENT THAT THE PRODUCTS OR SERVICES WILL NOT DAMAGE OR OTHERWISE HARM CUSTOMER’S DATA, SOFTWARE, HARDWARE OR BUSINESS, AND CUSTOMER AGREES TO WAIVE ANY SUCH CLAIMS AGAINST CLIENT.  NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT.  REGARDLESS OF THE FORM OF ANY CLAIM MADE BY EITHER PARTY UNDER THIS AGREEMENT, THE REMEDY SHALL BE LIMITED TO THE AMOUNT OF THE FEES PAID BY CUSTOMER TO SUBTEXTIVE UNDER THIS AGREEMENT.  THE OBLIGATIONS SET FORTH IN THIS SECTION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT.

Force Majeure. Subtextive will not be liable for any delay in performance or inability to perform due to acts or omissions of any civil or military authority, acts of God, acts or omissions of Client, fires, strikes or other labor disturbances, equipment failure, capacity limitations in equipment provided by Client, fluctuations or non-availability of electric power, heat, light, air conditioning or other elements necessary and essential to Subtextive’s performance.

Customer’s obligation to Indemnify. Provided Subtextive complies with the requirements outlined below in “Notice of and Defense of Claims”, Customer will defend, indemnify and hold harmless Subtextive from and against any suit, proceeding, losses, damages or costs (including court costs and reasonable attorney’s fees) arising out of claims against Subtextive by third parties which allege that any of Customer’s materials delivered to Subtextive infringe any valid patent, copyright, trade secret or other third party intellectual property rights.

Subtextive’s obligation to Indemnify. Provided Customer complies with the requirements of section 7.8 below, Subtextive will defend, indemnify, and hold Customer, its officers, directors, agents and employees, harmless from any claims or liabilities, including attorney’s fees, costs and expense at trial, on appeal, or on any petition for review, arising out of acts or omission of Subtextive or its employees, or arising out of breach by Subtextive of any provision of this Agreement, or arising out of any claim that any work or materials delivered to Customer by Subtextive pursuant to this Agreement violate the intellectual property rights of any other party. In addition, and subject to the requirements of “Notice and Defense of Claims” below, Subtextive will defend, indemnify and hold Customer harmless from and against any suit, proceeding, losses, damages or costs (including court costs and reasonable attorney’s fees) arising out of claims against Customer by third parties which allege that Subtextive’s Services and Deliverables infringe any valid patent, copyright, trade secret or other third party intellectual property rights. If a claim of infringement under this section occurs, Subtextive will have the right, in its sole discretion, to either: (i) procure for Customer the right or license to continue to use the Deliverables free of the infringement claim; or (ii) replace or modify the product(s) or deliverable(s) to make it non-infringing provided that the replacement of the Deliverables comply with Customer’s then current specifications. If these remedies are not reasonably available to Subtextive, Subtextive may terminate this Agreement and return any fees paid by Customer in advance. Subtextive has no obligation with respect to any claim of infringement that is based upon or arises out of: (i) any modification of the Product(s) or Deliverable(s) if such modification was not made by Subtextive; or the use or combination of any of the Product(s) or Deliverable(s) with any hardware, software, products, data or other materials not specified or provided by Subtextive.

Notice of and Defense of Claims. The indemnified party will (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent that it is prejudiced thereby, and (ii) have the right, at its own expense, to employ separate counsel and participate in the defense thereof.  Neither party will (a) enter into any third-party agreements affecting the rights of the other party, or  (b) bind the other party in any manner to such third party, without the prior written consent of the other party.

Damages. Each party’s aggregate liability on all claims of any kind, whether based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, for all losses or damages arising out of, connected with, or resulting from this Agreement or from the performance or breach of it, or from any Products or Services covered by or furnished under this Agreement or any extension or expansion of it, will be limited to the amounts paid or payable for the particular Product or under the particular Statement of Work in the course of which the injury arose.  Products or Services provided by Subtextive in any attempt to provide a remedy are amounts paid by Subtextive in satisfaction of its liabilities, calculated at the then-current pricing and rates for those Products or Services.  Costs Subtextive incurs (exclusive of payroll or subcontract fees incurred to provide Services) in connection with any attempt to provide an express remedy or indemnity provided for in this Agreement will be considered to be amounts paid by Subtextive in satisfaction of its liabilities.  Neither party will be liable to the other for special, incidental, exemplary or consequential damages, including, but not limited to, damages arising from loss of: data, sales, profits or revenue, use of equipment or data; or arising from cost of capital, substitute facilities or services, downtime costs, or claims of third parties for such damages.