This is a contract between you (the Customer) and us (WhichBox Media). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese” but we have tried to make it as readable as possible. These terms are important, so much so that we cannot provide these services unless you agree to them. By using the Service or receiving the Consulting Services, or other Services described herein, you are agreeing to these terms.

We periodically update these terms and we will let you know when we do via email for as long as you are a Customer.

We have several different products, and there are some provisions that apply only to those products. In the ‘General Terms’ below, we have those that apply to all of our products, except as we explain in the ‘Product Terms’. In the ‘Product Terms’ below, we have those that apply to our specific products.

SUBSCRIPTION AGREEMENT GENERAL TERMS

1. Definitions
   1. "Agreement" means these Customer Terms of Service and all materials referred or linked to herein.
   2. "WhichBox Media”, “whichbox®", “WBM”, "we", "us" or “our” means WhichBox Media, Inc.
   3. "You", "your" or “Customer” means the person or entity using the Service or receiving the Consulting Services and identified in the applicable billing statement, online subscription process, Order Form, or Statement of Work as the customer.
   4. “Parties” means, collectively, Customer and WBM.
   5. The “whichbox® Service” ("Service") is a Subscription-Based online Audience Engagement Platform that includes technologies which can facilitate content creation, management, storage, hosting, as well as user generated content (UGC) tools, gamification, and community management tools. Use and access to portions of the Service are defined in this Agreement, including specific rates and charges as defined herein.
   6. “UGC” means ‘User Generated and Contributed Content.’
   7. “Website” is defined as a collection of related web pages, videos, images or other digital assets (i.e.: content), which are cohesively organized around a common URL (Uniform Resource Locator).
   8. “User” refers to individuals or persons who are authenticated (means they have an active or inactive account created by you or by themselves) users of the Service. This includes authenticated users of any type, including the full range between administrative (Customer employee) and 3rd Party outside authenticated user with no special privileges.
   9. “Visitor” means a non-authenticated visitor to the Service website(s).
   10. "Administrative Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service for your benefit and have unique roles, user identifications and passwords for the Service.
   11. “Content” means any content and/or any media materials and/or assets published by Customer in the Service. This can include but is not limited to original content from Customer, User Generated Content (UGC), artwork, photos, images, text, audio, video, logos and marks, marketing materials, ads, downloadable documents, feeds, branded content, or any source Customer may use for content to be published/displayed within the Service.
   12. “Documentation” is defined as written or online materials specifically identified as operating instructions or procedures. This excludes ordinary ongoing communications, such as emails, or other materials of a similar nature, or communications within the Web Based Support System. Official “Documentation” will be identified as such.
   13. "Billing Period" means the period for which you agree to prepay fees under an Order Form.
   14. “Confidential Information” means all information provided by you or us ("Discloser") to the other (“Receiver”), whether orally or in writing that is designated as confidential. Further, Confidential Information means:
       1. Means all information that is not generally known by the public and that is obtained by one party from the other, or, is learned, discovered, developed, conceived, originated, or prepared by either party during the provision of the Service for Customer, and/or relates directly to the business or assets of either party, as well as any additional non-public information that is orally or visually disclosed and as to which the disclosing party makes a contemporaneous oral statement and then describes and confirms as confidential in a writing sent to the other party within 30 days of the original disclosure.
       2. Shall include, but shall not be limited to: proprietary information, inventions, discoveries, trade secrets, and know how; computer software code, designs, routines, algorithms, and structures; product information; research and development information; lists of clients and other information relating thereto; financial data and information; business plans and processes; and any other information that Parties inform each other, or that Parties should know by virtue of their respective positions.
   15. "Consulting Services" means the professional services provided to you by us, which may include ad-operations services, content creation and management services, ideation and strategy services, training services, or other consulting services.
   16. "Customer Data" means all information that you submit or collect via the Service.
   17. "Customer Materials" means all materials that Customer provides or posts, uploads, inputs or submits for public display through the Service.
   18. "Intellectual Property Rights" means all rights, title, and interest in and to:
       1. All rights of invention and all U.S. or foreign patents or any division, continuation, continuation in part, reissue, or extension thereof and any applications (including provisional applications) therefore;
       2. All trade secrets and trade secret rights arising under the common law, state law, federal law and/or laws of foreign countries;
       3. All copyrights, and all other literary property and author rights, whether or not copyrightable, and any registrations and applications for registration therefore;
       4. All personal, publicity or privacy rights
       5. All trademark, service mark, slogans, trade name, logo, trade dress, branding, and domain name rights, and any registrations and applications for registration therefore,
       6. Any other protectable intellectual and/or intangible proprietary rights anywhere in the world.
   19. "WBM Content" means all WBM owned or licensed information, data, text, messages, software, sound, music, video, photographs, graphics, images, templates, pre-formed designs, and tags that we incorporate into the Service or Consulting Services.
   20. "Order Form" or "Order" means the WBM-approved form or online subscription process by which you agree to subscribe to the Service and purchase Consulting Services. Most Orders are completed through our online payment process. The purchase form may be referred to as a "Statement of Work" if you are purchasing only Consulting Services.
   21. "Sensitive Information" means credit or debit card numbers; personal financial account information; Social Security numbers; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as the Health Insurance Portability and Accountability Act and the Payment Card Industry Data Security Standards.
   22. "Subscription Fee" means the amount you pay for the Service.
   23. "Subscription Term" means the Initial Subscription Term and all Renewal Subscription Terms.
   24. "Third-Party Products" means non-embedded products and professional services that may be provided by third parties which interoperate with or are used in connection with the Service.
   25. "Third-Party Sites" means third-party websites linked from within the Service.
2. The Service
   1. Access. During the Subscription Term, we will provide you access to use the Service as described herein.
   2. Limits. Limits may apply to various characteristics of the Service, which may also change as features and capabilities are added or change. Any limits will be specified herein and in your Order Form.
   3. Modifications. We modify the Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. We might provide elements of the Service through third party service providers.
   4. Additional Features. During the Term, should you wish to add Features, Options or Services, you may subscribe to such by agreeing to a new, additional Order Form. This does not change existing Subscription commitments, but can add items to your overall Service Subscription with WBM.
   5. During the Term, should you wish to upgrade to a higher level of Subscription Service, please contact sales@whichboxmedia.com at WBM in order to work out a migration plan and the specific features and options you wish to include, timetables, costs and specific deliverables.
3. Deliverables
   1. WBM Deliverables:
      1. WBM agrees to deliver and operate the Service under the terms and conditions set forth herein.
      2. Training (see Order Form).
      3. After sign-up, Customer will receive a list of deliverables that are to be provided to WBM. Subject to WBM’s sole approval, WBM will review deliverables for compatibility with the Service.
         1. Professional Level Service. The Professional Level Service will be delivered within 5-10 business days, excluding Holidays, unless Parties mutually agree in writing to other arrangements.
         2. Enterprise Level Service. The delivery schedule of the Customized Service will depend upon the complexity of the intended result, the time and availability of Customer to provide the necessary input and assets, and the corresponding scheduling of WBM’s development, creative or other team resources.
      4. WBM will provide the purchased Services only in accordance with applicable laws and government regulations.
   2. Customer Deliverables:
      1. Customer is required to deliver to WBM various information, graphic elements, taxonomies, digital assets, etc., as appropriate for the selected Service Plan. Work to build and launch the Service for Customer cannot begin until all of these deliverables are provided to WBM, to WBM’s specifications. We can’t configure your Service unless you provide the necessary information! WBM will provide Customer with a detailed list of deliverables upon Subscription activation.
      2. NOTE: After Customer deliverables have been delivered and approved by WBM, when Customer has access to the Service (pre-launch and after launch), Customer will be responsible for directly entering its content into the Service, and for all subsequent ongoing management of the site, moderation of content and UGC, scheduling, curation, editing, etc. WBM is only responsible for providing the Service capabilities. Customer is responsible for all aspects of *using* the Service. In the event that Customer desires to request operational assistance from WBM, Content Management services, including services such as content creation, input, editing and other contract services are available from WBM at an additional charge. Please contact sales@whichboxmedia.com for more information.
      3. Delays on the part of Customer to provide deliverables to WBM will not change the payment schedule due dates.
4. Customer Support. Customer Support options are described on the Order Form.
5. Availability. We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
6. Responsibility for Content
   1. Customer is solely responsible for the creation, acquisition, delivery, input, editing, and ongoing upkeep and maintenance of any and all Content required for the Service.
   2. WBM is responsible only for providing the Service, as detailed herein. WBM will not be obligated to publish the Content if it is deemed un-satisfactory in the sole judgment of WBM, including without limitation that the Content is not appropriate for the Service, is deficient, violates any law or any rights of any third party, is provided in breach of the Terms of Service and related policies, or is unlawful, harassing, vulgar, harmful, abusive, obscene, pornographic, is spam, does further phishing, spoofing or similar unlawful acts, indecent, threatening, libelous, slanderous, hateful, discriminatory, defamatory, false, misleading or otherwise objectionable. WBM shall have the right to cease displaying and distributing any Content in the Service in WBM's sole and exclusive discretion.
   3. WBM is not responsible for the Content and is not responsible for verification of it. Any verification made by, or on behalf of WBM, or any failure by WBM to verify it, shall not constitute a defense for Customer in any action based upon a breach of any of the warranties made by Customer herein. Customer is solely responsible for all Content including derivatives of such Content. No revisions made by Customer and/or WBM to the Content shall be deemed to affect or limit Customer's warranties or indemnity made hereunder, which shall also apply to the revised and/or derivative Content.
   4. Customer agrees to register its Service “powered” website with the United States Copyright office and designate an official DMCA agent for its organization. If the Customer implementation is to be operated in countries other than, or in addition to, the United States, then Customer agrees to perform appropriate similar registration in those countries. Customer agrees to register for other, similar protections as they may become available. The purpose of these is to provide an official contact and process for legal notification in the event of copyright infringement. At the time of this writing, the (United States) URL for this was: http://www.copyright.gov/onlinesp/ and form at this URL: http://copyright.gov/onlinesp/agent.pdf, and form for amended designations at this URL: http://copyright.gov/onlinesp/agenta.pdf.
   5. Exclusive of Customer provided Content, logos, marks, and other Intellectual Property Rights of Customer, WBM retains all intellectual Property Rights associated with the Service as well as WBM provided art, images, photographs, video, audio, music and text (i.e.: content) as well as layouts, templates, creative, appearance, styling and functionality associated with the Service.
   6. No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
7. General Confidentiality. The Receiver of Confidential Information will:
   1. Protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care.
   2. Not use any Confidential Information for any purpose outside the scope of the Terms of Service and related policies.
   3. Not disclose Confidential Information to any third party (except our third party service providers.
   4. Limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
   5. Customer Agrees and Acknowledges that the Software and Documentation associated with the Service is Confidential, and agrees to protect its confidentiality, per the above. Customer shall use its best efforts to see that any user of the Service complies with the Terms of Service and related policies.
   6. Parties hereby acknowledge and agree that during the Term of this Service Subscription, and due to the nature of the relationship between Parties, that Parties may have access to each other’s Confidential Information.
   7. During the Term of this Service Subscription and for 3 (three) years after termination, Parties shall keep the Confidential Information strictly confidential. Parties shall not disclose the Confidential Information to any person, firm, or corporation other than their employees, provided that such employees have a need to know such Confidential Information and are under a written obligation of confidentiality no less restrictive on the disclosure and use of the Confidential Information than the provisions contained herein. Parties agree that if Parties subcontractors or agents violate or breach Confidential Information, that that Party and its agent or subcontractor shall be jointly and severably liable for such breach. Parties further agree that each will not use the Confidential Information for any purpose other than in the performance of Parties obligations herein. The foregoing confidentiality obligation of Parties shall not be applicable to the Confidential Information, which the other Party can demonstrate are, or hereafter become, generally available to the public through no fault of said Party. Promptly upon termination of this Service Subscription, or upon notice, Parties shall return to each other (a) all other Confidential Information in each Party’s possession or control, and all documents and other tangible media containing or reflecting such Confidential Information; and (b) all other property of the other Party. Parties shall not retain or cause to be retained any copies of the foregoing. Parties hereby agree that all of the foregoing shall be and remain the property of the respective Party and be subject at all times to the owning Party’s discretion and control.
   8. Client, Contacts and Relationship Information: Parties have a legitimate, protectable business interest in their clients, contacts, and relationships. Parties may gain special knowledge of and familiarity with each other’s capabilities and protected relationships, including clients and other vendors/suppliers (“Clients”). Parties understand that each have spent a great deal of time, resources and money developing its relationships with such Clients, and Parties mutually warrant and represent that they will at no time disclose any Client names or information of the other party to third parties without the written consent of the other party.
8. Service Subscription
   1. This is a Service Subscription for access to and use of the Service. This is not a License Agreement. You are not granted a license for any assets or services or any software by this Service Subscription.
   2. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the WBM Content, the Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us.
   3. The Service (“whichbox® Service”), the whichbox® logos, and other marks that we use from time to time are our trademarks, and are protected by intellectual property laws. These services belong to WBM and are the property of WBM and its licensors (if any). WBM retains all rights, ownership, patents, trade secret rights, copyrights, marks and intellectual property rights to the programming, technology, Service-specific content, look-and-feel, styling, images, media, layouts or other content provided by WBM, and characteristics of the Service.
   4. The appearance, layout, color scheme, and design of the Service are protected trade dress. You may not use any of these without our prior written permission.
   5. Customer retains all rights, patents, trade secret rights and copyright to Customers registered marks, its own intellectual property, and it’s owned or licensed Content. Customer retains all rights to the finished and unique look-and-feel, insofar as the finished look-and-feel are unique, have not been created using purchased templates from a third party, and are separate from that of WBM’s core Service, templates, sites and properties. In simple terms, Customer retains its rights to “Content” that it owns, but not to the technology or framework provided by WBM. Customer does not own any license, interest or rights to software, programming, widgets, applications, frameworks, WBM Content, or other parts or aspects of the Service and technologies.
   6. Images and layouts and content provided by WBM, if such are common to the Service and are available for use by other Customers, then such are not unique to Customer. Customer retains rights to that which is specifically and individually created without the use of 3rd party purchased templates and licensed (if any) for Customer alone.
   7. Unless otherwise permitted under this Service Subscription or by law, Customer shall not itself and shall not permit any employee, contractor, consultant, or other third party to:
      1. Reproduce, copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert or apply any process to the Service Software or Documentation in order to derive for any purpose, the source code or source listings for the Software or any trade secret information or process embodied in the Software.
      2. Transfer, sell, assign, sublicense, rent, lease, convey or distribute the Service Software or Documentation to any third party.
      3. Modify, merge or compile all or any portion of the object code of the Service Software into an Information System. The term “Information System” is defined as any combination of information technology, i.e.: software, and user activity of that technology to support research, operations, management, decision-making, or other purposes.
      4. License the Service Software or any Documentation, including but not limited to manuals, instructions, flow charts, etc., or any methods, data structures, or other proprietary technology therein to any third party.
      5. Remove any identification, copyright notices, or other proprietary notices or restrictions from the Service Software or Documentation.
9. Consulting Services: You may purchase Consulting Services through an Order Form or Statement of Work.
10. Fees and Payments
    1. Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you:
       1. Exceed your any specific limits set by your Subscription Plan, Service Plan or Consulting Services Agreements.
       2. Subscribe to additional Services or Options. We will charge you under the new price structure, starting with the next Billing Period in the Subscription Term, except as may be otherwise provided in the Order Form. In order to avoid additional charges, you should purchase the appropriate tier of Service for your anticipated needs.
    2. Delays on the part of Customer will not change the payment schedule due dates.
    3. Payments
       1. All prices quoted are “cash” prices (ie: cash, wire, check or cashier's check), not including any applicable sales tax. Sales Tax, credit card fees, transaction charges, wire fees, or any other fees or charges related to the payment transaction will be billed in addition to quoted prices. See the section below, “Sales and Income Taxes” for more information on Taxes.
       2. Unless otherwise mutually agreed upon in writing by both Parties, all Payments must be made by credit card provided by Customer to WBM at signing of the Service Subscription.
       3. Customer hereby authorizes WBM to charge that credit card throughout the Term for the WBM charges that become due. Customer further authorizes WBM to use a third party to process payments, and consent to the disclosure of Customer’s payment information to such third party. Customer also agrees to keep such payment information up-to-date.
       4. Monthly Recurring Charges are charged as an automatic draft, or similar method, on the first day of each month during the Term. Non-Recurring Charges are charged as they are incurred. Implementation charges are charged on execution of this Service Subscription.
       5. Set-up and Implementations fees are charged prior-to the beginning of work by WBM. They are required in order for WBM to begin the set-up process. Set-up charges must be paid and cleared before WBM will begin work.
       6. Rush Fee. At any time, should Customer wish to accelerate the work schedule, WBM may propose a Rush Fee, to be mutually agreed upon by Parties. Customer acknowledges that such changes would impact the work schedules of other WBM Customers, and that WBM is under no obligation to agree to such request.
    4. Late Fees
       1. If scheduled fees and charges are not paid in full by the due date, WBM may charge a late payment administrative processing fee of $100.00. If full payment is a calendar month late, Customer shall be charged an additional 5% of balance due fee. After two calendar months, Customer shall be charged an additional 10% of balance due. After three calendar months, Customer shall pay a 20% of balance due fee.
       2. WBM may charge Customer for any costs WBM pays to a collection agency to collect unpaid balances from Customer.
       3. If scheduled fees are not paid on time, WBM reserves the right to suspend any ongoing services, including delivery/hosting of the Customer Service. When the account is fully paid and current, WBM may reschedule any planned release dates, work schedule and milestones giving priority to other Customers. In other words, service and work will stop until payment is made in full, and then all work will be rescheduled. Reconnection of the Service may take two to four business days.
       4. See “Suspension or Modification of Services” in section Termination for more information on other WBM options in the event scheduled payments are not made on time.
    5. Returned Check, Insufficient Funds, and Refused Payment Policy
       1. It is understood and agreed that upon presentation of a credit card for services provided by WBM, that Customer is entering into a contractual Service Subscription that obligates and holds Customer responsible for any and all penalties, costs, and incidental damages allowable under law, but not limited to, insufficient funds charges, return charges, chargebacks, state surcharges, interest, collection costs, legal expenses, attorney fees and expenses incidental to the principal obligation on any payment that is returned non-payable or any unsuccessful draft of funds from credit card provided by Customer.
       2. WBM may charge Customer, up to the highest amount permitted by law, for payments paid by Customer and denied for any reason by a financial institution. Acceptance of payments (even if marked ‘paid in full’) does not waive WBM’s right to collect all amounts that Customer owes. WBM may restrict accepted payment methods to cashier’s check, money order, or other similar secure form of payment at any time for good reason.
    6. All fees, including but not limited to set-up and customization fees, maintenance and support fees, special service fees, as well as all monthly fees, are non-refundable.
    7. Sales and Income Taxes.
       1. WBM pricing does not include Taxes. Any Taxes are in-addition to the WBM pricing. All fees are exclusive of taxes, which WBM will charge as applicable. Parties are separately and individually responsible for any sales or income taxes, value added tax, or any other taxes based on respective net income and revenue from Service or any other taxes otherwise resulting from this Service Subscription.
       2. Customer hereby agrees to pay any taxes applicable to Customer’s use of the Service, performance of Consulting Services or other services. If Customer is located in the European Union, all fees are exclusive of any VAT and Customer represents that Customer is registered for VAT purposes in its member state. At WBM’s request, Customer will provide WBM with the VAT registration number under which Customer is registered in its member state. If Customer is subject to GST, all fees are exclusive of GST. If Customer is required to deduct or withhold any tax, Customer must pay the amount deducted or withheld as required by law and pay WBM an additional amount so that WBM receives payment in full as if there were no deduction or withholding.
    8. U.S. Dollars. All fees quoted and payments made herein shall be in U.S. Dollars.
11. Aggregate Data. We may monitor use of the Service by all of our customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any identifiable user data.
12. Use and Limitations of Use
    1. Acceptable Use. You will comply with our Acceptable Use Policy at (http://whichboxmedia.com/acceptable-use-policy).j
    2. Prohibited and Unauthorized Use. You will not:
       1. Use or launch any automated system, including, "robots," "spiders," or "offline readers," that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser.
       2. Use the Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Service.
       3. Attempt to gain unauthorized access to the Service.
       4. Access the Service other than through our interface.
       5. Use the Service for any purpose or in any manner that is unlawful or prohibited by this Service Subscription.
    3. You will notify us right away of any unauthorized use of your Users’ identifications and passwords or your account using the Web-Based Support System to create a security support request.
13. Third-Party Sites and Products. Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warranty the Third-Party Site or Product.
14. Indemnity
    1. Indemnification Against Liability for Infringement: WBM shall indemnify Customer and any of its officers, directors, employees or agents against all claims, liabilities, costs, damages, fees and expenses (including reasonable attorney fees) arising from any breach or alleged breach of warranty under this Service Subscription or any claim or suit alleging infringement by the Service, Background Technology or Deliverables, as defined herein, of any patent, copyright, trade secret or trademark rights or any other rights of any third party.
    2. Customer shall promptly notify WBM in writing of any third party claim or suit and WBM shall have sole control of the defense of any such action and all negotiations for its settlement or compromise. Customer may participate at its own expense in the defense of any such action at its sole discretion.
    3. Customer shall indemnify and hold WBM and its directors, officers, agents, employees, and affiliates harmless from and against any and all fines, penalties, losses, costs, charges, claims, injuries, exposure. Liabilities, costs (including reasonable attorneys' fees) and damages resulting from, arising out of or related to breaches any of the representations and warranties by Customer set forth in this Service Subscription, or any third party claim that the Content infringes, misappropriates or violates any Intellectual Property Right.
    4. If either Party (the "Indemnified Party") becomes aware of any matter it believes is indemnifiable hereunder involving any claim, action, suit, investigation, arbitration or other proceeding against the other Party by any third party (each an "Action"), the Party shall give the other Party (the "Indemnifying Party") prompt written notice of such Action.
    5. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
15. Rights Clearance
    1. Customer will not publish to its Service or provide to WBM any Content, including UGC, for which the provision, use, modification, reproduction, hosting, distribution, performance and transmission of will violate any law or any Intellectual Property Rights of any third party.
    2. Customer warrants and represents and unconditionally guarantees that any and all such Content or Materials published into the Service, are owned or appropriately licensed by Customer and that the published or provided Content does not violate the rights, DRM, copyrights, marks, registrations, permissions and consents of any and all relevant third parties and does not infringe on or otherwise misappropriate any trademark, copyright, patent, trade secrets or any other rights of any third party. Customer, at its sole cost and expense, will hold harmless, protect, and defend WBM and its employees and/or agents from any claim or suit arising from the use of such Content or Materials provided by Customer.
    3. If such Content or Materials published or provided by Customer require permission from others, including but not limited to: any writings, drawings, photographs, trademarks, trade names, screens, on-line material, or other material in and/or on the Content for publication of the Content or for the exercise or disposition of any of the rights granted to WBM hereunder, then Customer shall obtain proper and complete written permission from the owner of said materials, at Customer’s sole cost and expense, prior to publication of said materials to its Service or delivery to WBM. In the event that any of these rights, licenses or permissions to said content are challenged, and upon request by WBM or WBM’s agent, Customer shall deliver copies of any such required written permissions to WBM.
    4. WBM is not responsible for fees or any license, legal, financial or other obligations incurred by Customer as a result of content posted to Customer’s Service. This includes, but is not limited to, license fees, master use license fees, synchronization license fees, and/or other collecting rights society's fees. WBM shall not make any payments to any third party, including, without limitation, any record labels, collecting rights society's and the like. Customer is solely responsible for any such fees or obligations.
    5. Warranty of Title: WBM represents and warrants that WBM owns, or has the necessary license, and has the complete right to provide, without any encumbrances, the Service and Deliverables covered by this Service Subscription. WBM further represents and warrants that WBM has obtained all required registrations, permissions and consents from all third parties necessary to deliver the Service, and Deliverables.
    6. Warranty Against Intellectual Property Infringement: WBM represents and warrants that the Service and Deliverables shall not infringe or otherwise misappropriate any trademark, copyright, patent, trade secrets or any other rights of any third party. To the extent the Service or the Deliverables infringe upon or otherwise misappropriate the rights of any third party, WBM shall develop a workaround solution, or otherwise obtain a license or consent from such third party permitting the use of the Service and Deliverables.
    7. Warranty Disclaimer: Except for the representations and warranties set forth herein, each party hereby disclaims any and all representations and warranties, whether express or implied, including without limitation all warranties of merchantability and fitness for a particular purpose. The Service is provided “AS IS” and “WHERE IS”; WBM expressly disclaims all warranties, express and implied regarding the Service, environment and materials.
16. Liability
    1. No Indirect Damages: Exclusion of Consequential and Related Damages. In no event shall either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.
    2. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICE, DATA MADE AVAILABLE FROM THE SERVICE, WBM CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SERVICE, WBM CONTENT AND CONSULTING SERVICES, ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SERVICE, AND THE CONSULTING SERVICES INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
    3. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR INDEMNITY OBLIGATIONS, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS SERVICE SUBSCRIPTION, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
    4. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OR ARE ASSOCIATED WITH THE SERVICE.
    5. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICE SUBSCRIPTION TO YOU.
17. Renewal, Termination, Suspension and Expiration
    1. The Service Subscription is annual, and is paid all at once at the beginning of the Term or signup, or in monthly installments.
    2. Subscription Term. The initial Subscription Term shall begin on the effective date of your Subscription, and includes the initial set-up time, with an automatic renewal, unless terminated earlier by either party under the terms of this Subscription.
    3. The Subscription will automatically renew for additional one (1) year periods (each a “Renewal Term”), unless either party gives written notice to the other party of its intent not to renew, no later than ninety (90) days before the expiration of the then current term. ("Initial Subscription Term") Upon such termination, all amounts owed to WBM under this Service Subscription shall become due and payable as defined in the Order Form
    4. Bankruptcy or Insolvency. Either party may terminate this Service Subscription immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors.
    5. If this Service Subscription is terminated by Customer because of WBM's default of WBM’s obligations herein, Customer may, after thirty (30) days written notice to WBM and a reasonable opportunity to cure: require WBM to provide Customer with temporary access to the Service, so that Customer may retrieve data from Customer’s account. This excludes WBM owned or licensed content, creative, art, styles, devices, etc. After such notice, Customer may pursue all legal and equitable remedies against WBM.
    6. If this Agreement Service Subscription is terminated early by Customer with no default of WBM’s obligations herein, WBM shall require Customer to pay all outstanding amounts owed, as well as for the balance of the monthly fees due for the current Term. In other words, if Customer cancels or abandons the Service Subscription outside of the annual Renewal of Term mechanism, then Customer must immediately pay the balance of the term’s scheduled payments. For example, if cancelled or abandoned in Month 10 of any term, the scheduled payments for Months 11 and 12 are immediately due and payable at time of termination. All other amounts due by Customer, such as for other work or services, are also immediately due at time of Termination. Also, WBM may pursue all legal and equitable remedies against Customer. WBM, at its sole discretion, may retain all of Customers Content until such time that outstanding balances are paid in full.
    7. If WBM terminates this Service Subscription because of Customer's breach or default, after a thirty (30) day written notice to Customer and an opportunity to cure, WBM shall require Customer to pay all amounts then due to WBM under this Service Subscription for any work or services which have been completed and provided by WBM, including any outstanding balance of monthly fees for the entire remaining balance of the original term of the Service Subscription, (in other Words: if the Service Subscription is cancelled early in month 10 of any term, the remaining payments for months 11 and 12 are due and payable at the time of termination) and WBM may pursue all legal and equitable remedies against Customer.
    8. Suspension or modification of Services
       1. Suspension for Non-Payment. Upon being late with your payment for 10 days, we may suspend your access to all or any part of the Service. If the Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Service.
       2. WBM incurs ongoing and sometimes significant expenses to provide the Service. For contractual reasons, as well as to protect WBM’s financial, business and operational interests, WBM reserves the right to throttle bandwidth, terminate hosting or take other actions as determined solely by WBM if Customer does not make its scheduled payments for the service on time. These steps may precede actual Termination, solely at the discretion of WBM.
       3. Suspension for Prohibited Acts. We may suspend any User’s access to the Service for:
          1. WBM may suspend, terminate, withdraw, or discontinue all or part of the Services or Customer’s access or one or more Users' access upon receipt of a subpoena or law- enforcement request, or when WBM believes, in its sole discretion, that Customer (or your Users) are involved in any fraudulent, misleading, or illegal activities.
          2. Repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
          3. Suspension for Present Harm. If your use of, the Service:
             1. Is being subjected to denial of service attacks or other disruptive activity
             2. Is being used to engage in denial of service attacks or other disruptive activity
             3. Is creating a security vulnerability for the Service or others
             4. Is consuming excessive bandwidth
             5. Is causing harm to us, or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Service. We will try to limit the suspension to the affected portion of the Service and promptly resolve the issues causing the suspension of the Service.
    9. Effect of Termination or Expiration. Upon termination or expiration of this Subscription, you will stop all use of the Service and any WBM Content.
    10. Retrieval of Customer Data. As long as you have paid all fees owed to us, and if you make a written request within thirty (30) days after termination or expiration of your Subscription, we will provide you with temporary access to the Service, so that you may retrieve data from your account. If you need support to migrate the data to another platform or other services, this would be managed under Consulting Services rates and terms. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
18. General Provisions
    1. Authorization: WBM and Customer each hereby represent and warrant that the execution, delivery and performance of this Service Subscription has been duly authorized and that the Service Subscription is a legal, valid and binding agreement of WBM and Customer, enforceable in accordance with its terms. WBM and Customer further represent that this Service Subscription does not breach or violate any agreement to which it is a party or to which it is bound.
    2. Complete Agreement: This Service Subscription (including each Order Form and, if applicable, Statement of Work), or other Policies is the sole and entire Agreement between Parties for the Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
    3. Dispute Resolution and Arbitration. It is the intent of the parties that any dispute be resolved informally and promptly through good faith negotiation between WBM and Customer. Either party may initiate negotiation proceedings by written notice to the other party setting forth the particulars of the dispute. The parties agree to meet in good faith to jointly define the scope and a method to remedy the dispute. If these proceedings are not productive of a resolution, then the parties shall promptly submit any dispute to mediation with an independent mediator located in Dallas, Texas. In the event mediation is not successful in resolving the dispute, the parties agree to submit the dispute to binding arbitration as provided below.
    4. Any controversy, dispute or claim arising out of or related to this Agreement or breach of this Agreement shall be settled solely by confidential binding arbitration by a single arbitrator in accordance with the commercial arbitration rules of the American Arbitration Association in effect at the time the arbitration commences. The award of the arbitrator shall be final and binding. The arbitration shall be held in Dallas, Texas. Notwithstanding the above, nothing herein shall prevent either party from seeking injunctive or other equitable relief as necessary to protect its Intellectual Property Rights.
    5. Marketing: Parties grant consent to each other to include mention of Customer’s use of the Service in their respective marketing and PR efforts. Parties grant each other a nonexclusive right to use each other’s regular trade names, trademarks, titles and logos (“Licensed Marks”) in their marketing and PR efforts.
    6. Promotion: All Service instance web pages include a web page footer stating that the Service is “Powered by whichbox®. Fueled by organic storytelling®” or similar, such wording to be determined solely by WBM. WBM reserves the right to indefinitely retain service exemplars of non-confidential Customer Content, web pages, etc., for the purposes of Service demonstrations/examples to prospective customers and investors.
    7. Modification to Agreement: Modifications and amendments to this Agreement shall be enforceable only if they are in writing and are signed by authorized representatives of both parties.
    8. Choice of Law / Venue. This Agreement is governed in all respects by the laws of the State of Texas (without regard to its conflicts of laws) as such laws are applied to agreements entered into and to be performed entirely within Texas between Texas residents. The Parties irrevocably consent to the exclusive personal jurisdiction of the federal and state courts located in Dallas Texas, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in Texas, such personal jurisdiction shall be nonexclusive.
    9. Assignment. Customer may not assign this Agreement or any rights or duties hereunder, whether by operation of law or otherwise, to any person or entity without WBM's prior written consent. Such consent shall not be unreasonably withheld or delayed. Any attempt to do so without such consent will be void. Notwithstanding the foregoing, Customer may, on notice to WBM, assign this Agreement to a purchaser of all, or substantially, all, of such party’s business (whether by merger, sales of assets, sale of stock or otherwise). If Customer does assign this Agreement to a purchaser, all rights, and obligations of this Agreement herein, and as reiterated in the paragraph Survival, shall apply to and bind such purchaser. WBM may freely assign this Agreement and any rights or obligations hereunder. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
    10. Waiver. An effective waiver under this Service Subscription must be in writing signed by the party waiving its right. A waiver by either party of any instance of the other party's noncompliance with any obligation or responsibility under this Service Subscription will not be deemed a waiver of subsequent instances.
    11. No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.
    12. No Third Party Beneficiaries. Nothing in this Service Subscription, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Service Subscription.
    13. Actions Permitted. Except for the following exclusions, no action, regardless of form, arising out of or relating to this Service Subscription may be brought by either party more than one (1) year after the cause of action has accrued.
        1. Actions for nonpayment
        2. Breach of a party’s proprietary rights
        3. Violations of WBM’s Acceptable Use Policy
        4. Violations of Law, Statute or Regulation
    14. Independence. The parties to this Service Subscription are independent parties. Neither party is an agent, representative, or partner of the other party. Neither party shall make any deduction from any payments due to the other for federal and state tax purposes.
    15. Notice: All notices or reports permitted or required under this Service Subscription shall be in writing and shall be by personal delivery, facsimile transmission, or by certified or registered mail, return receipt requested, and deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices shall be sent to the addresses set forth in the Order Form or such other address as either party may specify in writing.
    16. Compliance with Laws. Customer shall comply fully with all applicable federal, state and local laws, ordinances, rules, orders and regulations in our provision of the Service and Consulting Services, if any. Without limiting the generality of the foregoing, Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Service Subscription without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
    17. Survival. Notwithstanding the termination or expiration of this agreement, the following shall survive Termination of this Service Subscription:
        1. Definitions
        2. Responsibility for Content
        3. General Confidentiality
        4. Fees and Payments
        5. Subscription Term and Renewal
        6. Customer Data
        7. Indemnity
        8. Liability
        9. Rights Clearance
        10. Disclaimers; Limitations of Liability
        11. Termination, Suspension and Expiration
        12. General Provisions
        13. Also, Confidentiality shall survive for an additional 3 (three) years beyond Termination date.
    18. Contract for Services. This Service Subscription is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
    19. Headings: The headings contained in this Service Subscription are for the purposes of convenience only and are not intended to define or limit the contents of this Agreement.
    20. Reasonable Costs: In the event of any controversy concerning or related to this Agreement or the performance of this agreement, the prevailing party shall be entitled to recover its reasonable expenses (including reasonable attorneys' fees) incurred in resolving such controversy, in addition to any other relief that may be available.
    21. Reliance/Interpretation. Each party agrees and acknowledges that, except as set forth in this Agreement, it is not relying upon any representations, statements or interpretation of the other party or its agents and representatives in entering into this Agreement or otherwise. This Agreement has been negotiated by the parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party.
    22. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, or any other cause beyond the reasonable control of such party. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted or caused by such party, or its employees, officers, subcontractors, agents or affiliates. If the affected party is unable to resume performance of obligations hereunder within thirty (30) days, the unaffected party may terminate this Agreement.
    23. Severability: If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect, provided that such unenforceability does not materially affect the parties' rights under this Agreement.
    24. Electronic Signature. This Service Subscription may be mutually agreed to and executed electronically. Any modifications will have to be in writing.