This Subscription License Agreement (“Agreement”) sets forth the terms and conditions upon which Tempesta Media, LLC (“Tempesta”) grants you (“Customer”) the Subscription License to use the Tempesta Platform, as more particularly described herein. This Agreement will be subject to one or more written and separate quotes, sales orders, service orders, purchase orders, etc. (collectively, “Order”) as provided by Tempesta to Customer, which Orders are incorporated herein by reference . To the extent that such Order contains legal and/or pricing terms that differ from this Agreement, such terms of the Order shall prevail. The parties agree to the following terms:
“Content” means custom written content generated for Customer by Tempesta’s writing staff and delivered through the Tempesta Platform.
“Claims” means any third party lawsuit, claim, action or demand.
“Credits” mean the credits included within Client’s Subscription License which can be applied to obtain Content.
“Customer Content” means any content provided by Customer through the Tempesta Platform for potential or actual incorporated into the Content, including without limitation background research, whitepapers, marketing materials, competitive information, as well as Customer’s own images, edits and additional content that are added by Customer prior to publication of the Content.
“Law” means any applicable law, rule, statute, decree, decision, order, regulation, judgment, code, and requirement of any government authority (federal, state, local, or international) having jurisdiction.
“Professional Services” means the creation and editing of Content by Tempesta pursuant to an Order or as requested through the Tempesta Platform.
“Services” when used within this Agreement shall refer collectively to access to the Tempesta Platform and Professional Services.
“Subscription Fees” mean the fees for the Subscription License to use the Tempesta Platform, as more specifically set forth in a Customer’s Order.
“Subscription License” means the a worldwide, non-exclusive, non-transferable, non-perpetual, non-sublicense-able, license granted to Customer under this Agreement to use subscription services, services and technologies provided on the Tempesta Platform.
“Subscription Term” means mean the duration of Customer’s Subscription License to use the Tempesta Platform, as more specifically set forth in a Customer’s Order.
“Tempesta Platform” means the proprietary software, applications and processes developed and employed by Tempesta to provide Customer with the Content.
Subscription Term and Fees
Customer acknowledges that the Subscription Term and corresponding Subscription Fees for access to the Tempesta Platform, Professional Services and Content will be specified within the Order under which such Content is acquired by Customer.
Customer understands and agrees that unless Customer provides at least thirty (30) days-notice prior to the end of the current Subscription Term of its intent to not renew, the subscription will automatically renew for the same Subscription Term. Customer acknowledges that failure to provide such notice will subject Customer to responsibility of payment in full of Customer Fees for the new Subscription Term.
A Subscription may include an allocation of Credits to be used for various products and services available within the Tempesta Platform. It is the Customer’s obligation to use such Credits during the Subscription Term in which they are purchased. There are no refunds provided for purchased, but unused credits. Credits included within a Subscription that are unused expire at the earlier of the Subscription termination or at the end of each Subscription Term.
Customer may purchase One-Time Credits, on an a la carte basis, as they require. Unused One-Time Credits expire the earlier of one year from the date of purchase or upon expiration of the existing Subscription Term.
Tempesta reserves the right to increase the price of Customer Subscription Fees or other fees by up to twenty percent (20%) upon the next Subscription Term of the Customer, upon not less than ten (10) days prior written notice. In instances where the price increase is twenty percent (20%) or more, Tempesta will provide at least thirty (30) days written notice to Customer. During this notice period, Licensee may terminate this Agreement with no additional obligation if they do not wish to pay such increased Subscription Fees.
Customer acknowledges that timely payment is necessary in order for Tempesta to provide Content to Customer. As such, Customer authorizes and consents to a reasonable credit check to be performed by Tempesta or a professional third party as selected by Tempesta for rendering such services.
Payment Terms and Taxes
Customer agrees to the following with regards to Payment Terms for the Content:
Terms and Method of Payment – Customer shall pay Subscription Fees for its use of the Content according to the terms of the applicable Order. Customer shall pay all Subscription Fees by credit card or bank ACH, unless individual payments exceed $2,500. In the event an individual payment exceeds $2,500, Customer may also pay by domestic bank wire transfer or domestic check. If payment is made by check, Customers should allow up to ten (10) days for payment to clear and Content Credits to be added to their account.
Pre-Payment – All Subscriptions require pre-payment at or before the beginning of each Subscription Term, so specified in the applicable Order.
Billing Cycle and Overages – Subscription Fees are billed up to thirty (30) days prior to the Subscription Term’s renewal. One-Time Content Usage Credits are prepaid by the customer, before being released for usage. Any overage charges from Customer’s consumption of Content are billed in the following month.
Disputes – Customer may dispute Subscription Fees within ten (10) days of their due date by submitting a written dispute to Tempesta at CustomerSupport@TempestaMedia.com. Customer waives any further claim of dispute for Subscription Fees unless this process is followed. Further, Customer waives any and all claims to Subscription Fees paid. If Customer uses a credit card for payment of Subscription Fees, Customer expressly agrees not to submit a credit card chargeback through their credit card provider with respect to any dispute; any and all disputes shall be resolved in accordance with this Agreement. Initiating a credit card chargeback shall be a violation of this Agreement and Customer’s Subscription License and access to the Tempesta Platform and any Content may be immediately suspended or terminated without prior notice. Customer shall not withhold payment of the disputed charges and shall remain liable for all Subscription Fees until the parties resolve the dispute. If the parties cannot reach resolution, the dispute shall be resolved by arbitration according to the terms of this Agreement. Once a dispute is resolved and if obligated to do so as part of an Arbitration Settlement, Tempesta will provide a refund to Customer in the agreed amount. Acceptance of such refund by Customer constitutes full satisfaction of the dispute and Customer waives any further claims with regard to the dispute.
Payment Decline – If Customer’s payment method is rejected, Customer agrees to pay a late fee of $50 plus pro-rated interest of one point five percent (1.5%) on any outstanding balance.
Suspension for Lack of Payment – If Customer fails to pay Subscription Fees by their due date, Tempesta may suspend Customer’s access to the Content. Customer acknowledges that it remains liable for payment in full of Subscription Fees due, even if Customer’s access to the Content is suspended.
Termination for Lack of Payment – If Customer fails to pay Subscription Fees within sixty (60) days of their due date; Tempesta may assess an additional $50 late fee and reserves the right to terminate this Agreement. Customer acknowledges that it remains liable for payment in full of Subscription Fees due, late fees, accrued interest and all costs associated with collection, even if Customer’s access to the Content is terminated for non-payment.
Termination by Customer – If Customer cancels their Subscription, their account access will be suspended at the end of their current Subscription Term. If Customer wishes to reinstate their Subscription, they must do so within sixty (60) days of Cancellation. Failure to do so will result in deletion of the Customer’s Subscription Account.
Refunds – Except with respect to an obligation arising from an arbitrated dispute, Tempesta Media does not provide refunds for any One-Time Credits, Subscriptions or other purchases made by the Customer.
Taxes – Customer acknowledges that it is solely responsible for the payment of any taxes imposed by local, state, or federal governments in Customer’s acquisition and use of the Content. Tempesta Media will collect such taxes, if required by law.
Customer agrees to the following with regards to Customer’s responsibilities in using the Content and the Tempesta Platform, of which the violation of any is grounds for suspension of delivery of Content or termination of this Agreement, at Tempesta’s sole discretion:
Unauthorized Use – Customer shall use commercially reasonable efforts to prevent unauthorized, unlicensed access to or use of the Tempesta Platform and any other technology and services used to deliver Content under this Agreement.
Reverse Engineering – Customer shall not reverse engineer or otherwise attempt to gain unauthorized access to any portion of the Tempesta Platform or other technology used to deliver Content under this Agreement.
Interference – Customer shall not interfere with Tempesta’s delivery of its Tempesta Platform, services or content to its other Customers.
Legal Compliance – Customer shall use the Tempesta Platform and the Content in strict accordance with applicable Laws, including, but not limited to, employment laws, intellectual property laws, and laws governing contracts.
The parties agree to following with regards to Tempesta’s responsibilities in providing the Content:
Plagiarism Screening – As part of its platform, all content created by Tempesta Media’s contracted writers, are screened for potential plagiarism using both 3rd party plagiarism technology and Tempesta Media’s proprietary technology. Screening is performed, prior to deliver of content to Customers for their review and acceptance. Content that fails screening is rejected and not sent to the Customer. Within five (5) days from the date of content acceptance by the Customer, if the content is found by either party to be partially or wholly plagiarized, or cited without proper attribution; Tempesta Media agrees to re-write said content solely at its own expense for the Customer.
Distribution Format – Tempesta will supply Content in rich-text format (RTF files) and HTML format (HTML files) through electronic download or delivery from the Tempesta Platform, unless otherwise requested by Customer.
Reasonable Efforts – Tempesta will use commercially reasonable efforts to make sure that the Tempesta Platform used to deliver the Content is reasonably available, except for (a) planned downtimes for system maintenance, which we will try to schedule during non-peak hours; AND (b) any unavailability caused by circumstances beyond Tempesta’s reasonable control, including but not limited to, acts of God or government; natural disasters such as flood, fire, earthquakes; civil unrest or terrorism; labor problems such as strikes; or Internet communication issues such as service provider failures or delays.
Support – Tempesta will provide support to paid subscription customers. The type and level of support provided will vary depending on the Subscription purchased.
Intellectual Property Rights
Unless otherwise specified within an Order, Customer shall have rights of ownership with regards to only the Content created explicitly for the Customer. However, Customer shall have no such rights with regards to the Tempesta Platform or other technologies provided by Tempesta to deliver such Content to Customer. Any trademarks appearing in Content and within the technologies used to deliver such Content belong to their respective owners and this Agreement does not confer any rights under United State Trademark Law for Customer to use such trademarks other than as contained with the Content.
Customer hereby represents and warrants that Customer owns all right, title and interest in, or has lawful rights to authorize Tempesta to use, copy, modify and make derivative works of, all Customer Content uploaded onto the Tempesta Platform or otherwise provides to Tempesta for incorporation into the Content. Customer hereby indemnifies and holds harmless Tempesta and its owners, officers, employees, agents, subcontractors and other representatives from and against any claim by, or liability to, any third party (and all associated damages, liabilities, debts, costs and expenses, including without limitation legal fees and expenses) arising out of or relating to (i) Customer’s breach of the above representations and warranties; or (ii) Customer’s provision or Tempesta’s use of the Customer Content for purposes of providing the Services.
Licensed Images – Customer acknowledges that Tempesta facilitates licensed, royalty-free images from one or more third party providers. Customer further acknowledges that it is the Customer’s responsibility to follow the licensing requirements as outlined by the third party provider. Tempesta makes available the provider’s name with each image, so that the Customer can easily ascertain the licensing requirements of said third party provider. Tempesta shall not have any liability for Customer’s failure to comply with a third party provider’s licensing requirements, and Customer shall indemnify, defend and hold Tempesta harmless with respect thereto.
Social Media – Customer acknowledges that it is their responsibility to review and approve social media Content, whether created by the Customer or Tempesta, prior to its publication. Tempesta Media is not liable for any Content published on social media by Customer, and Customer shall indemnify, defend and hold Tempesta harmless with respect thereto.
Other Services. Certain other services (“Other Services”) such as integrations and apps may be made available to Customer through forums for their integration with the Tempesta Platform. These Other Services are governed by their own terms and privacy policies and Customer agrees that Tempesta is not responsible for Customer’s use of these Other Services where Customer chooses to enable these Other Services and integrate them into the Tempesta Platform. By enabling the Other Services, Customer understands and agrees that Tempesta does not provide any warranties for Other Services and Tempesta is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access or use of any such Other Services, or Customer’s reliance on the privacy practices, data security processes or other policies of such Other Services. Customer understands that Tempesta is not responsible for providing technical support for Other Services or for the data hosting and data transfer practices followed by providers of such Other Services. To this extent, Customer agrees to address any comments, queries, complaints or feedback about such Other Services with the respective developers or publishers as specified in those forums.
Digital Millennium Copyright Act Compliance
Tempesta adheres to the terms of the United States’ Digital Millennium Copyright Act of 1998 (DMCA) as found under United States law (17 USC. В§ 512). If any party believes that their copyrights are infringed by Content as provided by Tempesta, such party should provide Tempesta with a written notice via mail, fax, or email that contains the following information:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyrighted work that claimed to have been infringed;
A description of where the infringing material is located with Content;
A contact address, telephone number, and email address;
A statement that such claim is under the good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; AND
A declaration signed by the party, made under penalty of perjury, that the above information in such notice is accurate and that the party is either the copyright owner or authorized to act on the copyright owner’s behalf.
Tempesta will only respond to such notices that substantially comply with the above requirements. Tempesta will investigate claims and then notify such parties by the method of contact provided.
Limitations of Warranty and Liability
Customer agrees to the following with regards to Tempesta’s warranties and limits of liability as related to Customer’s use of the Content:
No Warranties – Tempesta disclaims all warranties, express or implied, with respect to the use of the Tempesta Platform and the Content, including, but not limited to, any implied warranties of merchantability and fitness for a particular purpose.
No Guarantees – Tempesta makes no guarantees with regards to the effect of the Content on Customer or its business.
No Liability – Customer is solely liable for Customer’s use of the Content. Tempesta is not liable under any legal theory for damages of any type that Customer may suffer due to Customer’s use of the Content as well as from Customer’s inability to use the Content, including, but not limited to, loss of revenue or loss of opportunity.
Customer shall indemnify and hold harmless Tempesta, Tempesta’s officers, and affiliates as necessary with regard to any legal action or damage claims that are a result of Customer’s use of the Services or the Content.
Disclaimer of Damages
FOR ALL EVENTS AND CIRCUMSTANCES, TEMPESTA AND ITS AFFILIATES’ AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE USE OF TEMPESTA’S CONTENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO CANCELLATION OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL TEMPESTA OR ITS AFFILIATES BE LIABLE TO CUSTOMER FOR: ANY CLAIM BASED UPON A THIRD PARTY CLAIM; ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF TEMPESTA OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AT ALL TIMES THE SOLE EXTENT OF TEMPESTA’S LIABILITY WILL BE LIMITED TO THE AMOUNTS CUSTOMER HAVE PAID TO TEMPESTA WITHIN THE MONTH PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
The parties agree to following with regards to termination/expiration of this Agreement:
Termination by Customer – Prior to Customer’s Subscription License renewal or within the period of notice for a Price Increase, Customer may terminate this Agreement with written notice to Tempesta at no further obligation or penalty effective as of the end of the current Subscription Term. Thereafter, Customer may terminate at any time, but Customer remains fully liable for payment of any Subscription Fees due through the end of the current Subscription Term.
Termination by Tempesta Due to Customer’s Breach – Customer understands and agrees that Tempesta may terminate this Agreement immediately without prior notice should Customer breach the terms of this Agreement. Customer shall remain liable for payment of all Subscription Fees until the end of the current Subscription Term.
Termination by Tempesta Due for Convenience – Customer understands and agrees that Tempesta may terminate this Agreement with five (5) days written notice to Customer. Customer shall remain liable for payment of all Subscription Fees up through the date of actual termination.
Effect of Termination/Expiration – Customer understands and agrees that once this Agreement ends, Customer will no longer be able to access the Content and or further use the Content provided by Customer. It is the Customer’s obligation to download any Customer-owned content, prior to termination.
Non-Disclosure, Non-Solicitation, and Non-Disparagement
Non-Disclosure – Each party (a “disclosing party”) may, from time to time, disclose to the other (a “receiving party”) confidential information relating to its business and affairs, the Tempesta Platform, or the Services (collectively, “Confidential Information”). The receiving party shall (i) avoid disclosure of the other’s Confidential Information to any third party without the written consent of the disclosing party, except that Tempesta may provide the Confidential Information to independent contractors so long as such independent contractors agree to protect such Confidential Information substantially as set forth herein; (ii) not use the other’s Confidential Information except for provision of the Services; and (iii) use at least the same degree of care to protect the other’s Confidential Information as it uses with respect to its own Confidential Information and in no event less than a reasonable degree of care. Nothing shall prohibit Tempesta from using the general knowledge accrued in providing the Services for any purpose in Tempesta’s sole discretion. The following is not Confidential Information: (i) information in the public domain through no breach or fault of the receiving party; (ii) information already known to the receiving party prior to disclosure by the disclosing party; (iii) information received by the receiving party rightfully from a third party; (iv) information independently developed by the receiving party; or (iv) information required to be disclosed by law.
Non-Solicitation – For a period of eighteen (18) months after the expiration or termination of this Agreement, Customer shall not hire, solicit, or induce or assist any third party in soliciting or inducing any employee or contractor of Tempesta that Customer learned about through the performance of this Agreement, to leave his or her employment with Tempesta. In the event Customer breaches its obligations, Customer shall pay Tempesta, as liquidated damages and not as a penalty, an amount equal to one hundred percent of such employee’s first year salary with the Customer or third party (including bonuses and deferred income of any kind) within thirty (30) days of each such breach. For the purposes of determining “solicitation,” the advertisement of employment opportunities by Customer in any public forum (including magazines, trade journals, publicly accessible internet sites, classified advertisements, or job fairs open to the public) shall not be considered “solicitation”, and the hiring of an individual as a result of his or her response to such a general employment advertisement or in response to his or her unsolicited employment inquiry shall not constitute a breach of this Agreement or result in any liquidated damages.
Non-Disparagement – It is expressly agreed to by both parties that neither shall publicly disparage or speak negatively about the other party.
The parties agree that money damages may not be an adequate remedy for breach of the Non-Disclosure, Non-Solicitation, and Non-Disparagement terms of this Agreement and that an aggrieved party may, without limitation to other remedies available, apply to any competent court of law or equity for specific performance or injunctive relief to enforce these provisions (without first proceeding to arbitration)
Notwithstanding anything herein to the contrary, Customer grants Tempesta the right to display Customer’s logo and/or trade name in Tempesta’s advertising, including display on Tempesta’s website, signifying that Customer is a customer of Tempesta. Customer may opt out of being included in such publicity by sending written notice to CustomerSupport@TempestaMedia.com.
Customer understands and agrees that Customer will receive all notices regarding this Agreement in written form, either by standard mail or email delivery.
No Other Relationship or Legal Interest
The Parties agree that this Agreement does not create any other relationship or legal interest between Customer and Tempesta, including, but not limited to, any sales contract, license, title, partnership, or other legal right, except as specified by this Agreement.
Invalidity of Provision
The Parties agree that even if a court invalidates a provision of this Agreement, the remaining Agreement provisions are still valid and remain in full effect.
Choice of Law
The Parties agree that the laws of the Cook County and the State of Indiana, without regard to its conflict of law principles, are to be used with regards to any interactions with the Content as well as with Tempesta.
Arbitration of Disputes
The Parties agree that if the Parties cannot amicably resolve any legal dispute or damage claim that should arise from Customer’s interactions with the Content Customer agree to resolve any such dispute or damage claim by arbitration. The arbitration proceeding shall be conducted in Michigan City, Indiana in accordance with the Commercial Arbitration rules of the American Arbitration Association then in effect with one (1) arbitrator to be selected by mutual agreement of both Customer and us. If the parties cannot agree on an arbitrator, then the American Arbitration Association shall select an arbitrator from the National Panel of Arbitrators. The laws of the State of Indiana shall apply to the arbitration proceedings. The prevailing party in any such proceeding shall be entitled to recover its reasonable attorneys’ fees and costs incurred with respect to such dispute. The Parties agree that the arbitrator cannot award punitive damages to either of Tempesta and agree to be bound by the arbitrator’s findings. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
The Parties agree that to the extent either Customer or Tempesta cannot adhere to the terms of this Agreement due to circumstances outside either party’s control, such responsibility is excused until the circumstances preventing fulfillment of such responsibility are removed.
Customer understands and agrees that any waiver of Customer’s adherence to the terms of this Agreement is not considered a waiver of Customer’s future adherence to the terms of this Agreement.
Customer may not assign this Agreement to any other party without the express written permission of Tempesta, which shall not be unreasonably withheld.
Transfer of Ownership
Customer agrees that even if Tempesta is merged with or is acquired by another company that assumes control of Tempesta, this Agreement still continues in full force and effect.
Tempesta may amend this Agreement at any time and in our sole discretion by posting the revised terms on the Tempesta Platform and/or the Tempesta Media website. Unless otherwise stated in such revision, the revised terms will take effect when they are posted. We will reasonably endeavor to provide you notice of any such changes, however you are responsible for reviewing the notice and any changes. This Agreement may not be otherwise amended except in a writing signed by both parties. Customer’s continued use of the Tempesta Platform and our Services following changes to the Agreement will constitute acceptance of changes or modifications to this Agreement.
The Parties understand and agree that the headings in this Agreement are included only as a matter of convenience and in no way define, limit or extend the scope of this Agreement or any of its provision.
This Agreement, and any corresponding Order, constitute the entire agreement between the parties in connection with the subject matter hereof and supersedes all agreements, proposals, representations and other understandings, oral or written, of the parties and any current or subsequent purchase order(s) provided by Customer.
By using the Service, Customer acknowledges that it agrees to these terms and conditions, and that it waives any and all defenses with regards to physical signature of this Agreement.