Software Terms of Service

These Software Subscription Terms and Conditions (the “Agreement”) is entered into by and between Whoosh, Inc., a Delaware corporation with its principal offices located at 203 Flamingo Road, #336, Mill Valley, CA 94941 (“Company”), and the customer identified on the applicable Order Form (“Customer”), and is effective as of the execution date of the initial Order Form entered into by the parties (the “Effective Date”). This Agreement incorporates these Terms and Conditions and all Order Forms entered into by the parties.  

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 hereby agree as follows: 

1. Grant Of License. 

   1. System; License to Customer. Subject to the terms and conditions of this Agreement, Company agrees to provide Customer with the system set forth in the Order Form(s) attached hereto and incorporated herein (collectively, the “System”). As used herein, “Order Form” means an order form in the form set forth above, or other mutually agreed upon ordering document signed by both parties, which references this Agreement and includes details about use of the System by Customer and its patrons or members, as applicable.  As part of the System and subject to the terms and conditions contained herein, Company hereby grants to Customer a limited, revocable, non-exclusive and non-transferable and non-sublicensable right and license to access and use the System during the Term (as defined below) of this Agreement, solely for Customer’s internal business purposes. 

   2. Licensed Volume.  The license shall be subject to, the limits, volume or other measurement or conditions of permitted use for the applicable System as set forth on the Order Form, including any limits on the number of authorized users permitted to use the System based on Customer’s subscription tier (the “Licensed Volume”). Except as set forth above with respect to the users of the System, Customer’s license hereunder shall not include a right to sublicense, resell or distribute access to or use of the underlying software which is the basis of the System. 

   3. Customer Access; Customer Content. Customer agrees to make all information, data, content and other materials and resources, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the System or to Company in connection with Customer’s use of the System, available to Company as Company deems reasonably necessary to assist in providing the System, including, without limitation: (a) all existing course access rules and regulations, (b) Customer’s member directory (in electronic format), if applicable, (c) any relevant personal or other information of Authorized Users, and other contractors and personnel of Customer (“Personnel”), as applicable, (d) Customer images and graphics, and (e) Customer logos, service marks, trademarks, and trade names (the “Customer Marks”) (collectively, the “Customer Information”). For avoidance of doubt, Customer Information shall not include any information derived or aggregated or otherwise analyzed by Company using the System that is not identifiable to Customer or any of its customers or employees including, without limitation, general metric data or trends regarding the System and the performance thereof, (“Derived Data”), which shall be owned exclusively by Company. Customer agrees to deliver the Customer Information to Company in a format, resolution and size specified by Company no later than fifteen (15) business days after the Effective Date. Customer hereby grants Company during the Term a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, and perform the Customer Information for the purpose of hosting, operating, and providing the System, and during the Term and after, the ability to use Customer Information solely for internal purposes to improve Company’s System, and other related products, services and technologies, and any associated professional services (as requested by Customer). 

   4. Use Restrictions. Customer shall not at any time and will not permit any person (including, without limitation, any authorized users) to, directly or indirectly: (a) use the System in any manner beyond the scope of rights expressly granted in this Agreement; (b) modify, port, translate, localize or create derivative works of the System, the operator and user manuals, training materials, specifications, and other similar materials in hard copy or electronic form if and as provided by Company to Customer (including any revised versions thereof) relating to the Systems, which may be updated from time to time upon notice to Customer (“Documentation”), or Company Intellectual Property (as defined below), in whole or in part; (c) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the System, in whole or in part; (d) frame, mirror, sell, resell, rent, lease, license, sublicense, copy, market or distribute the System or Company Intellectual Property to any other person, or otherwise allow any person to use the System for any purpose other than for the benefit of Customer in accordance with this Agreement; (e) use the System, Documentation, or Company Intellectual Property 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; (f) interfere with, or disrupt the integrity or performance of, the System, or any data or content contained therein or transmitted thereby; (g) access or search the System (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or System features provided by Company for use expressly for such purposes; or (h) use the System, Documentation, or Company Intellectual Property for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the System.  Customer shall also not remove, obscure or alter Company’s copyright notice or the Company Marks (as defined below) from the System, the Documentation, or Company Intellectual Property.

   5. Authorized Users. Customer will not allow any person other than its authorized users (“Authorized Users”) to access or use the System.  Customer may permit Authorized Users to use the System, provided that (a) the use, including the number of Authorized Users, does not exceed the Licensed Volume; and (b) Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their use of the System.  Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the System in accordance with customary security protocols, and will promptly notify Company if Customer knows or reasonably suspects that any user name and/or password has been compromised.

   6. Third-Party Services. Certain features and functionalities within the System may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the System. Company does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the System or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the System.

   7. Company Marks. The parties agree that Company shall include a Company logo (the “Company Marks”) on each page of the portion of the System that deals with reservations.  Company shall have the right to change the Company Marks from time to time as it deems necessary to reflect the corporate brand, identity and message of Company. Customer will not attempt to remove, obscure or alter the Company Marks from such portion of the System. 

   8. Service Modifications; Interruptions. Company may, at its sole discretion, modify or change any of the features of the System without materially affecting the functionality of the System. Company may, from time-to-time, perform certain software and hardware maintenance that may cause the System to be temporarily interrupted. Such maintenance shall be performed during non-peak hours (expected to be 12:00 AM to 6:00 AM Eastern Time), to the extent that it is reasonably possible. In the event any routine maintenance will not be performed during non-peak hours, Company will make commercially reasonable efforts to notify Customer in advance of such maintenance. 

      
      

2. Fees and Payments. 

   1. Fees and Payments. Customer will pay Company the non-refundable fees set forth on the Order Form (collectively, the “Fees”), in accordance with the terms therein and without offset or deduction, which include: (a) a one-time build, installation and training fee (the “Initial Fee”), (b) an annual license and maintenance fee (the “Annual License and Maintenance Fee”) which will be paid annually and is due initially on the date set forth on the Order Form and then subsequently, during the remainder of the Term of this Agreement, on the anniversary of such date for each year thereafter (“Annual Term”), if any, and (c) all other fees set forth on the Order Form. The Annual License and Maintenance Fees for each Annual Term shall be calculated based on the terms set forth on the Order Form. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term (as set forth in the applicable Order Form) or then-current Renewal Term (as set forth in the applicable Order Form), upon sixty (60) days’ prior notice to Customer (which may be sent by email). Except as otherwise provided in the relevant Order Form or agreed by the parties, Company will issue monthly invoices to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice. Payments due to Company under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by Company or such other payment method mutually agreed by the parties. 

   2. Late Payments. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Company may suspend Customer’s access to the System until all payments are made in full. Any such suspension or termination will not relieve Customer from paying any outstanding Fees plus late charges. Customer will reimburse Company for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest. 

   3. Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Company hereunder, other than any taxes imposed on Company’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Company hereunder, Customer will pay an additional amount, so that Company receives the amounts due to it hereunder in full, as if there were no withholding or deduction. 

      
      

3. Proprietary Rights 

   1. Ownership of Customer Intellectual Property. As between the parties, Customer retains all right, title and interest in and to the Customer Information and all intellectual property rights in and to the foregoing (the “Customer Intellectual Property”), but excluding any Company Intellectual Property (as defined below in Section 3.2) or Derived Data. 

   2. Ownership of Company Intellectual Property. Customer acknowledges that as between the parties, Company owns and retains all right, title, and interest in and to all software programs incorporated into the System, the Company Marks, all enhancements, modifications, improvements, or derivative works, and all intellectual property rights in and to the foregoing (collectively, the “Company Intellectual Property”). No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein. 

   3. Derived Data. Company shall own and shall be permitted to use and share all Derived Data for its own purposes and for marketing the System to other customers.  Customer may have access to Derived Data or other analytics developed by Company solely to the extent set forth on the Order Form or other separate written agreement between the parties.

   4. Feedback. From time to time, Customer or its employees, contractors, or representatives may provide Company with suggestions, comments, feedback or the like with regard to the System (collectively, “Feedback”). Customer hereby assigns all right, title, and interest in and to Feedback to Company for its exclusive use including, without limitation, the testing, development, maintenance and improvement of the System.

      
      

4. Confidentiality 

   1. Confidential Information. As used herein, “Confidential Information” means any information that one party (the “Disclosing Party”) provides to the other party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure.  Confidential Information shall be deemed to include the identity of and information regarding other Company customers [and the Customer Information and Customer Intellectual Property, including specifically, all existing course access rules and regulations, Customer’s member directory and any and all information about or pertaining to Customer’s membership, as applicable.] However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party. 

   2. Obligations. Neither party shall disclose Confidential Information received from the other party to any third party other than such party’s employees, representatives, or contractors who have a bona fide need to know such Confidential Information in order to perform under this Agreement and who shall be similarly bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, nor shall it use such Confidential Information except in performance of this Agreement. Upon the request of the disclosing party, the receiving party shall return any materials received containing Confidential Information to disclosing party, and all copies thereof. Each party shall maintain the other party’s Confidential Information in strict confidence and use the same care to prevent disclosure of Confidential Information of the other party which it uses to safeguard its own confidential information, but in no event less than a reasonable degree of care. 

      
      

5. Term and Termination 

   1. Term. The term of the Agreement shall begin on the Effective Date and will continue as set forth in the relevant Order Form (the “Term”), unless earlier terminated in accordance with the terms of this Agreement.  

   2. Termination for Cause.   Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and, if able to be cured, such breach remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. 

   3. Effect of Termination. Upon the termination of this Agreement (whether pursuant to this Section 5 or for any other reason), (a) Customer and its Authorized Users shall immediately cease use of the System; (b) the rights granted pursuant to Section 1.1 will terminate; and (c) Customer shall immediately pay any accrued and outstanding amounts due to Company hereunder; and each party shall return to the other party all copies of such other party’s Confidential Information (except for archived electronic communications which may be kept confidentially) and, if requested by the other party, destroy all copies of the other party’s Confidential Information and certify in writing that all copies have been destroyed.

   4. Survival. This Section 5.4 and Sections 1.3, 1.4, 2, 3, 4, 5.3, 6, and 7 survive any termination or expiration of this Agreement.

      
      

6. Warranties; Indemnification; Limitation of Liability; Disclaimer 

   1. Warranties. The parties to this Agreement represent and warrant as follows: 

      1. Each party represents and warrants to the other party that: (i) it has full power and authority to enter into this Agreement; and (ii) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents. 

      2. Customer represents and warrants that (a) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority, consents, and licenses for: (i) the access to and use of the Customer Information (including any information relating to any Personnel or any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement; (ii) any marketing communications or other marketing practices by Company (including in compliance with all applicable laws with respect to Company’s customers and any minors); and (b) Company’s use of the Customer Information in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.

   2. Company Indemnification. Company will defend, indemnify and hold harmless Customer from and against any and all claims, actions, liabilities, costs and demands (including reasonable attorneys’ fees) arising out of a claim, suit or proceeding brought by a third party alleging that Customer’s use of the System or Company Marks infringes any intellectual property right of such third party, except to the extent such claim arises from or as a result of: (a) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (b) any Customer Information; (c) Customer’s failure to use any enhancements, modifications, or updates to the System that have been provided by Company; (d) modifications to the System by anyone other than Company; or (e) combinations of the System with software, data or materials not provided by Company. 

   3. Customer Indemnification. Customer will defend, indemnify and hold harmless Company from and against any and all claims, actions, liabilities, costs and demands (including reasonable attorneys’ fees) arising out of or related to a claim, suit or proceeding brought by a third party arising from: (a) any violation of applicable laws by Customer; (b) any breach of Customer’s representations, warranties or covenants set forth in this Agreement; (c) any claims that any Customer Information infringes any intellectual property right of such third party or otherwise violates any applicable laws; (d) any claims arising from Customer’s products or services or acts or omissions of its employees, contractors, agents, members or patrons (as applicable) including any property damage or personal injury; or (e) use of the System by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 1.3. 

   4. Indemnification Procedure. Each party’s obligations under this Section 6 are contingent upon: (i) the party seeking defense and indemnity (the “Indemnified Party”) providing the other party (the “Indemnifying Party”) with prompt written notice of such claim (but in any event notice in sufficient time for the Indemnifying Party to respond without prejudice); (ii) the Indemnifying Party having the exclusive right to defend or settle such claim; and (iii) the Indemnified Party providing all reasonably necessary cooperation to the Indemnifying Party, at the Indemnifying Party’s expense, in the defense and settlement of such claim. The Indemnified Party may participate in the defense of any claim at its own expense.

   5. Limitation of Liability. EXCEPT FOR: (A) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (B) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (C) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE COMPANY INTELLECTUAL PROPERTY OR THE PROVISION OF THE SYSTEMS, ANY ASSOCIATED PROFESSIONAL SERVICES, OR DOCUMENTATION, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE COMPANY INTELLECTUAL PROPERTY OR THE PROVISION OF THE SYSTEMS, ANY ASSOCIATED PROFESSIONAL SERVICES, OR DOCUMENTATION EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO COMPANY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

   6. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SYSTEM AND ANY ASSOCIATED PROFESSIONAL SERVICES, DOCUMENTATION, AND OTHER COMPANY INTELLECTUAL PROPERTY ARE PROVIDED ON AN “AS IS” BASIS, AND COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE SYSTEM AND ANY ASSOCIATED PROFESSIONAL SERVICES, DOCUMENTATION, AND OTHER COMPANY INTELLECTUAL PROPERTY OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, COMPANY HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SYSTEM WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.

      
      

7. General 

   1. Amendments. Company reserves the right to clarify or amend this Agreement by publicly publishing a new version of it.

   2. Governing Law; Dispute Resolution. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Any legal action or proceeding arising under this Agreement that is not required to be arbitrated will be brought exclusively in the federal or state courts located in the Marin County, California, and the parties irrevocably consent to the personal jurisdiction and venue therein.

   3. Arbitration. All disputes, controversies or differences arising out of or relating to this Agreement or the breach thereof which cannot be settled by mutual accord, shall be settled by arbitration, conducted in Marin County, California in accordance with the rules of the Judicial Arbitration and Mediation Services. Notice of a desire to arbitrate any such dispute, controversy or difference shall be deemed sufficient if mailed, prepaid by registered mail, return receipt requested, to the party at its last known address. The award of such arbitration shall be final and binding upon both parties hereto. The arbitrator shall award the substantially prevailing party its attorneys’ fees and the costs of the arbitration. 

   4. Publicity. Customer agrees to allow its name and other Customer Marks to be used in press releases, marketing and sales materials and user literature, including on the Company website, upon Customer’s successful launch of the System. Customer may, upon request by Company, agree to serve as a reference account. 

   5. General. Neither party may assign, transfer or sublicense this Agreement, by operation of law or otherwise, without the other party’s prior written consent, except to a successor entity in the event of a merger, consolidation or sale of all or substantially all of the assets of such party, and any attempt by either party to do so, without such consent, will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns. Customer affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the System, software, any Customer Information, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval. Neither party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement, including its exhibits and any Order Form(s), is the complete and exclusive agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. Except as expressly set forth in this Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver. All notices required to be sent hereunder will be in writing (email being sufficient) and will be deemed to have been given when mailed by certified mail, overnight express, or sent by email, with receipt confirmed. This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together constitute one and the same instrument.