Creativebug Subscription Agreement
Terms and Conditions
This Subscription Agreement (“Agreement”) consists of the Order Form and these Terms and Conditions and is made between Creativebug, LLC, a Delaware limited liability company, 424 Treat Avenue, Unit A, San Francisco, CA 94110 (“Creativebug”), and the Subscriber listed on the Order Form. Creativebug and Subscriber may be referred to collectively as the “Parties” or individually as a “Party.”
Subscriber desires to access the Services, and Creativebug desires to provide Subscriber and its patrons (members) access to the Services, subject to this Agreement. In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
- “Aggregated Data” means any data and information submitted, posted, or otherwise transmitted by or on behalf of Subscriber or an Authorized User through the Services; or any data and information related to Subscriber and an Authorized User’s use of the Services, including any data and information automatically collected by or on behalf of Creativebug.
- “Authorized User” means an individual having a valid and active Subscriber library card or membership who is authorized by Subscriber to access and use the Services under the rights granted to Subscriber pursuant to this Agreement.
- “Creativebug Content” means all works created by or on behalf of Creativebug for: (a) incorporation in Creativebug’s online classes, including, but not limited to, educational videos, transcripts, materials lists, and lookbooks; and (b) use in connection with the Services.
- “Creativebug IP” means the Services, Creativebug Content, Aggregated Data, and any and all intellectual property rights associated therewith.
- “Creativebug Trademarks” means the Creativebug® trademark; creativebug.com; and all other future trademarks applied-for, registered, or licensed by Creativebug in connection with the Services.
- “Fees” means the subscription fees in the Order Form.
- “Services” means the services provided by Creativebug on its website (www.creativebug.com) for delivering proprietary educational video classes, including all material associated with Creativebug Content.
2) Access and Use.
- Use Restrictions. Subscriber shall not use the Services, or encourage any Authorized User to use the Services, for any purpose beyond the scope of the access granted in this Agreement. Subscriber shall not at any time, directly or indirectly: (1) copy, modify, or create derivative works of the Services or Creativebug Content, in whole or in part; (2) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Creativebug Content; (3) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (4) remove any proprietary notices from the Services or Creativebug Content; or (5) use the Services or Creativebug Content in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- Reservation of Rights. Creativebug reserves all rights not expressly granted to Subscriber in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Subscriber or any third party any intellectual property rights or other right, title, or interest in or to the Creativebug IP.
- Suspension. Creativebug may temporarily suspend Subscriber’s and any Authorized User’s access to any portion or
all of the Services if:
- Creativebug reasonably determines that (a) either Subscriber or an Authorized User has infringed or misappropriated any Creativebug IP; (b) Subscriber or any Authorized User is using the Services in a manner that violates applicable laws; (c) the events in Section 10(b)(3) occur to Subscriber; or (d) Creativebug’s provision of the Services to Subscriber or any Authorized User is prohibited by applicable law; or (e) Creativebug determines in its sole discretion that suspension is required in order to comply with any federal, state or local law or regulation;
- any vendor of Creativebug has suspended or terminated Creativebug’s access to or use of any third-party services or products required to enable Subscriber to access the Services; or
- in accordance with Section 4(a)(2).
- Aggregated Data. Creativebug may monitor Subscriber’s and any Authorized User’s use of the Services and collect and compile Aggregated Data. Subscriber agrees that Creativebug may use Aggregated Data to the extent and in the manner permitted under applicable law.
3) Subscriber Responsibilities. Subscriber shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, such as notifying Authorized Users that they will be subject to Creativebug’s Terms.
4) Fees and Payment.
- Fees. Subscriber shall pay Creativebug the Fees in accordance with the Order Form without offset or deduction. If Subscriber fails to make any payment when due, without limiting Creativebug’s other rights and remedies: (1) Subscriber shall reimburse Creativebug for all costs incurred by Creativebug in collecting any late payments, including reasonable attorneys’ fees, court costs, and collection agency fees; and (2) if such failure continues for 10 days or more, Creativebug may terminate this Agreement or suspend Subscriber’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
- Taxes. All Fees and other amounts payable by Subscriber under this Agreement are exclusive of taxes and similar assessments. Subscriber is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Subscriber hereunder, other than any taxes imposed on Creativebug’s income.
- Auditing Rights and Required Records. Subscriber will maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for three years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due. At its own expense (except as provided below), and upon reasonable prior notice, Creativebug may periodically inspect and audit Subscriber’s records, and if the inspection and audit reveals that Subscriber has underpaid Creativebug with respect to any amounts due to Creativebug, Subscriber shall promptly pay the amounts necessary to correct such underpayment, together with interest in accordance with Section 4(a). Subscriber shall pay for the costs of the audit if the audit determines that Subscriber’s underpayment equals or exceeds 5% for any quarter. Creativebug’s inspection and audit rights will extend through the Term and for three years after the termination or expiration of this Agreement.
5) Confidential Information. Either Party may disclose or make available to the other Party information about its
business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and
other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or
not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”).
Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party.
The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (1) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (2) to establish a Party’s rights under this Agreement, including to make required court filings.
On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Notwithstanding the forgoing, each party agrees that receiving Party’s computer system may automatically retain back-up copies of Confidential Information as part of its normal back-up and disaster recovery procedures, and as such, some copies cannot be destroyed or returned, and each Party will not access or use such copies after receipt of a request to return or destroy the Confidential Information. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; except with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), the obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6) Intellectual Property Ownership. Subscriber acknowledges that, as between Subscriber and Creativebug, Creativebug solely owns all right, title, and interest in and to the Creativebug IP.
7) Warranty Disclaimer. THE CREATIVEBUG IP IS PROVIDED “AS IS” AND CREATIVEBUG HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CREATIVEBUG SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CREATIVEBUG MAKES NO WARRANTY OF ANY KIND THAT THE CREATIVEBUG IP OR ANY USE THEREOF WILL MEET SUBSCRIBER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
- Creativebug Indemnification.
- Creativebug shall indemnify, defend, and hold harmless Subscriber from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Subscriber resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Subscriber promptly notifies Creativebug in writing of the claim, cooperates with Creativebug, and allows Creativebug sole authority to control the defense and settlement of such claim.
- If such a claim is made or appears possible, Subscriber agrees to permit Creativebug, at Creativebug’s sole discretion, to (a) modify or replace the Services, or component or part thereof, to make it non-infringing, or (b) obtain the right for Subscriber to continue use. If Creativebug determines that neither alternative is reasonably available, Creativebug may terminate this Agreement in its entirety or with respect to the affected component or part effective immediately on written notice to Subscriber.
- This Section 8(a) will not apply to the extent that the alleged infringement arises from: (a) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Creativebug or authorized by Creativebug in writing; or (b) modifications to the Services not made by Creativebug.
- Subscriber Indemnification. Subscriber shall defend, indemnify and hold Creativebug, its shareholders, directors, officers, employees, agents, affiliates, suppliers, artists, partners, service providers, and licensors (“Indemnified Persons”) harmless from any Losses from a Third-Party Claim arising out of Subscriber’s: (1) use of the Services; (2) violation of any provision of this Agreement; (3) infringement or misappropriation of any Creativebug IP or third-party intellectual property rights; or (4) unauthorized use of any Aggregated Data collected from any Authorized User. If Subscriber is obligated to provide indemnification, the involved Indemnified Person may, in its sole and absolute discretion, control the disposition of any Claim at Subscriber’s sole cost and expense. Without limiting the foregoing, Subscriber may not settle, compromise, or in any other manner dispose of any Third-Party Claim described in this Section 8(b) without the written consent of the respective Indemnified Persons.
- Sole Remedy. This Section 8 sets forth Subscriber’s sole remedies and Creativebug’s sole liability and obligation for any actual, threatened, or alleged claims that the services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
9) Limitations of Liability. IN NO EVENT WILL CREATIVEBUG BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT SERVICES, IN EACH CASE REGARDLESS OF WHETHER CREATIVEBUG WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL CREATIVEBUG’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO CREATIVEBUG UNDER THIS AGREEMENT DURING THE PRECEDING CALENDAR YEAR PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
10) Term and Termination.
- Term. The Term begins on the Effective Date and will continue in effect for the period identified on the Order Form. This Agreement will automatically renew on each anniversary of the Effective Date for identical, successive periods. The Minimum Term, if any, is identified on the Order Form.
- Termination. In addition to any other termination right in this Agreement:
- Creativebug may terminate this Agreement at any time if Subscriber: (a) fails to pay any amount when due and such failure continues more than 10 days after notice to Subscriber; or (b) breaches any of its obligations under Section 2(b) or Section 5;
- Either Party may terminate this Agreement, with or without cause, upon 30 days’ written notice to the other Party; or
- Either Party may terminate this Agreement at any time if the other Party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Cancellation or termination of this Agreement for any reason before expiration of the Minimum Term will result in guaranteed fees owed to Creativebug by Subscriber for the Minimum Term.
- Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Subscriber shall immediately discontinue use of the Creativebug IP and, without limiting Subscriber’s obligations under Section 5, Subscriber shall delete, destroy, or return all copies of the Creativebug IP and certify in writing to Creativebug that the Creativebug IP has been deleted or destroyed. No expiration or termination will affect Subscriber’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Subscriber to any refund.
- Survival. This Section 10(d) and Sections 1, 4(c), 5, 6, 7, 8, 9, and 11 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement shall survive the expiration or earlier termination of this Agreement.
- Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications (each, a “Notice”) must be in writing and addressed to the Parties at the addresses on the Order Form (or to such other address that may be designated in accordance with this Section). A Notice is effective when: (a) received by the receiving Party; or (b) when sent by certified US mail, return receipt requested; or by private courier service (e.g. UPS, FedEx) to the Party’s address on the Order Form.
- Unavoidable Delay. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, interruptions or disruptions in utility service or in other networks or connections necessary for the provision or hosting of websites or the Services on the internet / world wide web, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
- Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of Ohio without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of Ohio. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of Ohio in each case located in Summit County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- Assignment. Subscriber may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Creativebug. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Subscriber, Section 2(b) or Section 2(d)(1)(a), (b) or (c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
- Counterparts. This Agreement may be signed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.