This constitutes the Software License and Services Agreement (this “Agreement“) between STOCKPRESS CORPORATION (“Stockpress“), and you (“You” or “Client“). Stockpress and Client are entering into this Agreement in order to memorialize the terms and conditions under which Stockpress will grant to Client a license to use the Software (defined below) and render the Services (defined below).
By clicking the “accept” button, (A) You accept this Agreement and agree that You are legally bound by its terms; and (B) You represent and warrant that: (i) You are of legal age to enter into a binding agreement and (ii) You have the right, power and authority to enter into this Agreement and bind Client to its terms. This Agreement comprises the entire agreement between Stockpress and Client and supersedes any prior or contemporaneous agreements, promises, representations, or descriptions pertaining to the subject matter contained herein. If You do not agree with the terms and conditions of this Agreement, You may not download, access, install or use the Software or the Services.
Software. Stockpress has developed and is the owner of all right, title and interest in a digital asset management platform and its related components, titled “Stockpress” (the “Software“), which includes online document storage, file sharing, hosting and asset management. Client wishes to obtain a license to use the Software, and Stockpress hereby licenses the Software to Client in accordance with this Agreement.
Upgrades. Stockpress, at its sole discretion, may make available future upgrades or updates to the Software. Upgrades or updates, if any, may not necessarily include all existing software features or new features that Stockpress releases. The terms of this Agreement will govern any software upgrades or updates provided by Stockpress that replace and/or supplement the original Software, unless such upgrade or update is accompanied by a separate license in which case the terms of that license will govern.
Reproduction of Materials. To the extent that the Software may be used to reproduce materials, it is licensed to Client only for reproduction of non-copyrighted materials, materials in which Client owns the copyright, or materials Client is authorized or legally permitted to reproduce. If Client is uncertain about Client’s right to copy any material, Client should consult a legal advisor.
2. LICENSE AND RELATED MATTERS.
Grant of License and Reservation of Rights. Stockpress hereby grants to Client a limited, nontransferable, nonexclusive license to use the Software during the Term (as defined below) solely on the terms set forth herein. Except as expressly set forth in this Agreement, Stockpress reserves all rights in and to the Software. Client expressly acknowledges and understands that the Software is licensed to Client, not sold. Accordingly, except for the limited license granted to Client hereunder, Stockpress retains all right, title and interest in and to the Software and related media and documentation, all copies thereof, and all proprietary rights therein, including any copyrights, trademarks, patents, and trade secret rights. Stockpress reserves the right to use, and to license other third parties to use, the Software for any purpose Stockpress may determine, during the Term (defined below) or otherwise.
Use of the Software. While Client uses Stockpress’ digital asset management, document storing and document sharing services via the Software, Client shall be entitled to use the Software interactively, as necessary in furtherance of Client’s needs and specific functional requests, if any.
Data Processing. Stockpress will use, at a minimum, industry standard technical and organizational security measures to store and process Client’s data (“Client Data”) through the Software. These measures are designed to protect the integrity of Client Data and guard against the unauthorized or unlawful access to, use and processing of Client Data. Client agrees that Stockpress may store and process Client Data in the United States and locations other than the Client’s country. To the extent that Client Data is subject to EU Data Protection Laws and is processed by Stockpress as a data processor acting on the Client’s behalf (as a data controller), Stockpress will use and process such Client Data as the Client instructs in order to provide the Services and fulfill Stockpress’s obligations under this Agreement. “Client Data” means the files and structured data stored on the Software or submitted to the Software by the Client and the account and contact information created by the Client in connection with Client’s use of the Software.
3. SERVICES. In connection with Client’s license of the software, Stockpress may render support, troubleshooting and/or related services (the “Services”) on the terms and subject to the conditions set forth in this Agreement.
4. TERM AND RELATED MATTERS.
Free Account Period. The free account period shall commence upon Client clicking the “accept” button and shall continue until the account reaches 5 GB of storage. Stockpress will provide the Software and the Service to Client free of charge during the Free Account Period. During the Free Account Period, You will be presented with an option to choose a subscription tier upon sign-in to your Stockpress workspace and you will need to select a subscription tier in order to continue using the Software and the Service following the Free Account Period. If You do not select a subscription tier, Client’s upload capability to the Software and the Service will be limited.
Term. The term of this Agreement shall include the Free Account Period and if Client selects a subscription tier, the term shall continue for the monthly period selected. The Term shall automatically renew every month unless terminated by the Client. If paying for 1 year upfront, the Term shall automatically renew for additional one (1) year periods unless terminated by either party in accordance with Section 4(C) below.
Termination. Client may terminate this Agreement and the use of the Software and the Service upon written notice to Stockpress (notice by email deemed sufficient) or by electing to terminate on the Stockpress website: (i) during the Free Account Period, in which case the termination shall take immediate effect, (ii) at any time for month-to-month subscriptions outside the Free Account Period, in which case the termination shall take effect on the last day of the first full month period following termination, or (iii) at least thirty (30) days prior to the end of the subscription period for annual subscriptions outside the Free Account Period, in which case the termination shall take effect on the next annual anniversary date. In the event Client terminates prior to the end of an applicable annual subscription outside of the Free Account Period, Client shall be entitled to a refund for the remainder of the applicable annual subscription term by reaching out to Stockpress support. Upon any termination of this Agreement, all rights granted to Client hereunder shall automatically terminate and revert to Stockpress, and Client shall immediately and permanently discontinue all use of the Software. Thereafter, neither Client nor any of its affiliates, contractors, receivers, trustees, employees, assignees or other representatives shall have the right to use or in any way deal with or access the Software. Upon Stockpress’ request, Client shall, at Client’s sole expense, immediately take all action and sign, acknowledge and deliver any and all documents necessary to evidence or confirm the termination of this Agreement and the exclusive rights of Stockpress with respect to the Software. Stockpress reserves the right to remove Client’s remote access to the Software in the event Client fails to comply with the terms of this Agreement. Any termination of this Agreement shall be without prejudice to any rights or claims which Stockpress may otherwise have against Client.
Modification of Agreement. Stockpress reserves the right, at its sole discretion, to modify, supplement or delete any of the terms and conditions of this Agreement. Stockpress may modify, suspend, or discontinue any aspect of the Software and related Services at any time. Stockpress may also impose limits on certain features or restrict Client’s access to parts or all of the Software without notice or liability. Client has no interest, monetary or otherwise, in any feature or content contained in the Software.
CONSIDERATION AND RELATED MATTERS.
Subscription Fees. Following the Free Account Period, the Software and the Service are available through monthly and/or annual subscriptions. Subscription fees will be automatically charged to your payment method on file each month or year, as applicable, until You cancel or otherwise terminate your subscription in accordance with Section 4(C) of this Agreement. Stockpress reserves the right to cancel any subscription if Stockpress is unable to successfully charge your payment method on file. All subscription fees are fully earned upon payment. You hereby expressly agree that Stockpress may submit periodic charges (e.g., monthly or annually) without further authorization from you until Stockpress receives written notice from you or until you elect to cancel or terminate your subscription via the Stockpress website. You represent and warrant that (a) all billing information You supply is true and complete; (b) charges incurred by You will be honored by your bank and/or your credit card company; and (c) You will pay the charges incurred by You at the posted prices, including any applicable taxes.
LIMITATION ON LIABILITY.
Limited Warranties. Stockpress warrants that the Software, as delivered, will be free of defects in all material respects and will have the functional capabilities for which the Software is intended to be used. If the Software fails to meet the foregoing standards upon delivery, then Stockpress shall at its own expense correct any such defect that is within Stockpress’s control within ten (10) business days of receiving notification of such defect; provided that Stockpress’ sole responsibility, and Client’s sole remedy, under this Agreement with respect to any defect in the Software shall be for Stockpress to use commercially reasonable efforts to correct such defect within ten (10) business days of receiving notice, or if the defect cannot be corrected by Stockpress and is under Stockpress’s control, to refund payments made by Client for the period during which the material defect was present after Client has uninstalled the Software. It is understood that Stockpress is under no obligation to refund payments made by Client if the defect for which the Software is being uninstalled is caused by any third party platform or otherwise outside of Stockpress’s control.
No Other Warranty.
Except for the express warranty set forth in Section 6(A) above, Stockpress is providing the Software on an “as is” basis, and Client’s use of the Software is at its own risk. Stockpress does not make any, and hereby disclaims all, other express and implied warranties, including warranties of merchantability, fitness for a particular purpose, non-infringement and title, and any warranties arising from course of dealing, usage or trade practice.
Except for the express warranty set forth in Section 6(A) above, Stockpress has not made, and is not now making, any other promises, guarantees, representations or warranties of any kind or nature, express or implied, regarding the Services to be provided hereunder, and Stockpress hereby expressly disclaims all of the same, including any warranty of a particular result or a particular benefit to be realized by Client as a direct or indirect result of the Services to be provided, warranty of fitness for a particular purpose, non-infringement, and any warranties arising from course of dealing, usage or trade practice.
Limits on Liability.
NEITHER STOCKPRESS NOR ANY OF ITS PARENT, SUBSIDIARIES OR AFFILIATES SHALL BE LIABLE TO CLIENT IN ANY WAY FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF THE SOFTWARE AND RELATED SERVICES OR ANY USE OF THE SOFTWARE OR RELATED SERVICES, INCLUDING WITHOUT LIMITATION, INACCESSIBILITY TO CONNECT TO THE INTERNET, LOSS OF DATA OR PROPRIETARY INFORMATION, OR ANY RELATED CORRUPTION OR ERROR ASSOCIATED WITH TRANSMISSION OF DATA.
STOCKPRESS SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS OF SERVICE, INCLUDING WITHOUT LIMITATION, SERVER DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OR CORRUPTION OF CLIENT DATA OR DISRUPTION OF SERVICE. IN NO EVENT WILL STOCKPRESS BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL STOCKPRESS’S LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED (IN THE AGGREGATE) THE TOTAL FEES PAID BY CLIENT TO STOCKPRESS DURING THE NINETY (90) DAYS IMMEDIATELY PRIOR TO THE TIME SUCH CLAIM AROSE. CLIENT HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD STOCKPRESS HARMLESS FROM AND AGAINST ANY CLAIM, LIABILITY, LOSS, LOSS OF PROFIT, FINES, PENALTIES, CAUSES OF ACTION, INJURY, COST OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES) INCURRED BY STOCKPRESS ARISING OUT OF OR FROM CLIENT’S USE OF THE SOFTWARE AND RELATED SERVICES. THIS INDEMNITY PROVISION SHALL SURVIVE THE TERMINATION AND/OR BREACH OF THIS AGREEMENT AND THE ANY RELATED ADDENDUMS. NOTWITHSTANDING THE FOREGOING, CLIENT’S DUTY TO INDEMNIFY AND HOLD HARMLESS STOCKPRESS SHALL NOT APPLY WHEN THE CLAIM ARISES OUT OF THE NEGLIGENCE OR WILLFUL MISCONDUCT OF STOCKPRESS, OR THOSE ACTING ON BEHALF OF STOCKPRESS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CLIENT.
CLIENT ACKNOWLEDGES THAT STOCKPRESS HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE LIMITATIONS OF LIABILITY AND WARRANTIES AND THE DISCLAIMERS SET FORTH ABOVE, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THE AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
7. OWNERSHIP; RESTRICTIONS ON USE.
Exclusive Ownership. Client acknowledges that, except as expressly provided in this Agreement, Stockpress is claiming and retaining sole and exclusive ownership of the Software, and nothing in this Agreement shall be deemed or construed to convey to Client any right or proprietary interest in or to the Software.
Unauthorized Use. Client shall not use or attempt to use the Software in any manner that is inconsistent with the license granted to Client hereunder or in connection with any business, enterprise, operation, good or service other than as permitted hereunder. Client shall not (a) copy, transmit or distribute the Software; (b) reverse engineer, decompile, disassemble, modify or create works that are derivative of the Software; (c) sell, resell, license or lease the Software; or (d) use the Software or Services for activities where use or failure of the Software or Services could lead to physical damage, death or personal injury, unless this restriction is prohibited by law. (e) Distribute or store inappropriate or malicious materials through the Software. Any such unauthorized use may result in immediate suspension of Client’s account or access to the Software.
Unauthorized Access. Client will prevent unauthorized use of the Software by any of its users and terminate any unauthorized use of or access to the Software. The Software is not intended for any users under the age of 13 and Client will ensure that it does not allow any person under 13 to use or access the Software. Client will promptly notify Stockpress of any unauthorized use of or access to the Software within five (5) business days of becoming aware of such unauthorized use or access.
8. NOTICE. All notices under this Agreement shall be sent by e-mail, at the following:
If to Stockpress: firstname.lastname@example.org
9. ASSIGNMENT, TRANSFER, SUB-LICENSE OR ENCUMBRANCE. Client shall not assign, transfer, sub-license, encumber or otherwise grant to any third party any of the rights obtained pursuant to this Agreement without Stockpress’ advance written consent, which consent Stockpress may withhold in its sole and absolute discretion, and provided that any such assignment, transfer, sub-license, encumbrance or other grant be made in strict accordance with the terms and conditions of this Agreement. Client acknowledges that any attempted assignment, transfer, sub-license, encumbrance or other grant of any of the rights obtained pursuant to this Agreement in violation of the foregoing shall be null and void, and shall result in an immediate and automatic termination of this Agreement and revocation of the license granted to Client hereunder.
10. INDEMNIFICATION. Client shall indemnify, defend, protect and hold harmless Stockpress and each of its shareholders, directors, officers, partners, joint venturers, employees, agents, representatives, successors and assigns, from and against any and all any and all claims, demands, damages, costs, losses and expenses (including attorneys’ fees), arising out of or in connection with: (i) a breach or threatened breach by Client of any its representations, warranties, covenants or agreements set forth in this Agreement; or (ii) any unauthorized modification or use of the Software.
Proprietary Rights Indemnification. Stockpress agrees to indemnify, defend, and hold harmless Client (including, its directors, officers, agents, employees, partners, affiliates, volunteers or independent contractors) (“Client lndemnitee“) from and against any and all claims, including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Client lndemnitee, by reason of any claim arising out of or relating to the Stockpress digital asset management platform and its related components infringing or misappropriating any United States or foreign patent, copyright, trade secret, trademark, or other proprietary right. In the event that Stockpress is enjoined from providing the Stockpress digital asset management platform or any of its related components and such injunction is not dissolved within thirty (30) calendar days, or in the event that Client is adjudged, in any final order of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or misappropriated any patent, copyright, trade secret, trademark, or other proprietary right in the access or use of the Stockpress digital asset management platform or any of its related components, then Stockpress shall, at its expense: (a) obtain for Client the right to continue using such Stockpress digital asset management platform and related components; (b) replace or modify such Stockpress digital asset management platform and related components so that they do not infringe upon or misappropriate such proprietary right and is free to be used by Client; or, (c) in the event that Stockpress is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, Stockpress may terminate this Agreement.
11. REMEDIES. Client hereby agrees that Stockpress would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore Client agrees that Stockpress shall be entitled to seek appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Stockpress may otherwise have available to it under applicable laws. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation shall be entitled to recover from the other party all the costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
12. SURVIVAL. The provisions of Sections 5,6,7, 9, 10 and 11 shall survive termination of this Agreement.
13. MARKETING. Client hereby agrees to receive marketing emails from Stockpress at the email address provided by Client.
14. RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be construed to create any employment, partnership, joint venture or other relationship between Stockpress and Client. Neither party shall hold itself out contrary to that relationship, and neither party shall become liable by reason of any representation, act or omission contrary to that relationship, unless agreed to in advance by both parties.
15. MISCELLANEOUS. This Agreement constitutes the entire agreement among the parties and supersedes any prior agreements, representations, warranties, or communications, whether oral or written, among the parties relating to the Software, the Services or the subject matter herein. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. Except as otherwise provided in this paragraph, any dispute arising from this Agreement shall be submitted to binding arbitration by a single arbitrator supplied by JAMS. The arbitration proceeding will be located in New York, New York, and conducted in accordance with JAMS’ rules and procedures applicable to the arbitration of commercial disputes, as such rules and procedures are then in effect. Notwithstanding the foregoing, any claim or action for indemnification, contribution, interpleader or injunctive relief arising out of a third party claim may be brought in the applicable state and federal court where the third party claim was filed. THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS HEREBY KNOWINGLY AND VOLUNTARILY WAIVED BY OPERATION OF THIS SECTION. Failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of such rights, and a waiver by either party of a default in one or more instances shall not be construed as a continuing waiver or as a waiver in other instances. If any term or provision of this Agreement is for any reason held to be invalid, such invalidity shall not affect any other term or provision, and this Agreement shall be interpreted as if such term or provision had never been contained in this Agreement. All notices, statements and other documents that any party is required or desires to give to any other party hereunder shall be given in writing and shall be served in person by express mail, by certified mail, by overnight delivery, or by facsimile at the respective addresses of the parties as first set forth above. This Agreement may be executed in any number of counterparts, and each of which shall be deemed an original, but all such counterparts together shall constitute but one agreement.