Tempesta Media, LLC (“Tempesta”) grants you (“Customer”) a worldwide, non-exclusive, non-transferable, non-perpetual, non-sublicense-able, license to use subscription services, services and technologies as provided by Tempesta (“Content”) according to the terms of this Subscription License Agreement (“Agreement”). 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 . 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:
Subscription Term and Fees
Customer acknowledges that the Subscription Term (“Subscription Term”) and corresponding subscription fees (“Subscription Fees”) for platform access, services and Content will be specified within the Order under which such Content is acquired by Customer.
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.
Customer agrees to following with regards to Customer’s responsibilities in using the Content and corresponding technologies and services used to deliver the Content, of which the violation of any is grounds for suspension of delivery of Content or termination of this Agreement, at Tempesta’s sole discretion:
- Limitation of Use – Customer shall not use the Content in any fashion or media channel (“Media Channel”) not explicitly listed in this Agreement and the Order.
- Unauthorized Use – Customer shall use commercially reasonable efforts to prevent unauthorized, unlicensed access to or use of the technology and services used to deliver Content as well as the Content itself.
- Reverse Engineering – Customer shall not reverse engineer or otherwise attempt to gain unauthorized access to any portion of the technology used to deliver Content.
- Interference – Customer shall not interfere with Tempesta’s delivery of its platform, services or content to its other Customers.
- Legal Compliance – Customer shall use the Content in strict accordance with applicable laws and government regulations, including, but not limited to, employment laws, intellectual property laws, and laws governing contracts.
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 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 understands and agrees that unless Customer provides at least three (3) 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 with no notice to Customer. Licensee acknowledges that failure to provide such notice will subject Customer to responsibility of payment in full of Customer Fees for the new Subscription Term.
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, unless the Order specifies otherwise.
- 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 seven (7) 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 thirty (30) days of their due date by submitting a written dispute to Tempesta. Customer waives any further claim of dispute for Subscription Fees unless this process is followed. 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 the dispute is resolved, 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-rate 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, 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 60 days of Cancellation. Failure to do so will result in deletion of the Customer’s Subscription Account.
- Refunds – Generally, Subscription Fees are non-refundable with exception of refunds from a Dispute; In such cases, Tempesta will refund unused portions of Subscription Fees within sixty days of settlement of dispute or the expiration/termination of this Agreement, as applicable.
- 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.
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 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, 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 result of Customer’s use of 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 Tempesta’s responsibilities in providing the Content:
- Distribution Format – Tempesta will supply Content in rich-text format (RTF files) and HTML format (HTML files) through electronic download or delivery, unless otherwise requested by Customer.
- Reasonable Efforts – Tempesta will use commercially reasonable efforts to make sure that the technology used to deliver the Content is available for download 24 hours a day, 7 days a week, 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 Silver and Gold Enterprise Customers via telephone and email by a designated account representative for the Content between the hours of 10am to 5pm, Central Standard Time, Monday through Friday. Outside of these hours, Tempesta provides basic email support. Tempesta will provide support to Professional Customers and Bronze Enterprise Customers via email for the Content between the hours of 10AM and 5PM, Central Standard Time, Monday through Friday, except on designated U.S. national holidays.
With thirty (30) days written notice to Customer, Tempesta reserves the right to increase Subscription Fees by no more than twenty percent (20%) of their prior amount. During this period, Licensee may terminate this Agreement with no additional obligation if they do not wish to pay such increase.
The parties agree to following with regards to termination/expiration of this Agreement:
- Termination by Customer – Prior to Customers 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. 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 5 (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 that further use of Content provided by Customer. Upon the termination/ expiration of this Agreement, Customer shall remove all Content from Media Channels within five (5) business days and certify in writing that the Content and all copies and/or partial copies have either been returned to Tempesta or otherwise destroyed and deleted from Customer’s computer libraries, storage devices, archives, and are no longer in use by Customer.
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.
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 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 Illinois, 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 Chicago, Illinois 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 Illinois shall apply to the arbitration proceedings. 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.
The Parties agree that no modification can be made to this Agreement without the written consent of both Parties.
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.