Web streaming Subscription Agreement
This Web Streaming Subscription Agreement (“Agreement”) is between The WhiteStar Corporation, a Colorado corporation (“WhiteStar”), whose principal place of business is located at 777 South Wadsworth Blvd., Suite 4-250, Lakewood, CO 80226, and the customer (“Customer”) subscribing to a free trial for a Licensed Product, defined below, on WhiteStar’s website (“Website”), and is effective as of the date that Customer indicates its acceptance of this Agreement by clicking an “I Agree” box on the Website (the “Effective Date”). By clicking such “I Agree” box, WhiteStar and Customer agree to be legally bound by this Agreement.
Customer wishes to obtain from WhiteStar on a free trial basis the web streaming product(s) selected by Customer on the Website as part of the subscription process (the “Licensed Product”), and WhiteStar is willing to provide the Licensed Product to Customer, all on the terms and conditions set forth below. Upon expiration of the free trial period, Customer may continue to use the Licensed Product by entering into a paid subscription on the Website.
In consideration of the foregoing and the terms set forth in this Agreement, WhiteStar and Customer agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following capitalized terms shall have the meanings set forth below:
1.1. “Data” means the cartographic data included in the Licensed Product.
1.2. “Derivative Works” shall mean a work created by Customer which uses, is based on or incorporates the Data or any part thereof.
1.3. “Effective Date” shall have the meaning given in the preamble above.
1.4. “Free Trial Period” means a time period commencing on the Effective and ending two weeks thereafter.
1.5 “Licensed Product” shall have the meaning given in the recitals above.
2.1. Access to Licensed Product. Upon the Effective Date, WhiteStar shall provide Customer with access via the internet in a web streaming format to the Licensed Product. If Customer does not purchase a subscription to the Licensed Product prior to the expiration of the Free Trial Period, Customer will lose access to the License Product and must delete all Data obtained or derived from the Licensed Product.
2.2. Grant of License. Subject to the terms and conditions of this Agreement, WhiteStar grants to Customer a nonexclusive, nontransferable, limited license during the Free Trial Period to use the Licensed Product and Data for the limited purposes of viewing, using and printing the Data within the scope and course of Customer's regular business activities and only on the business premises of the Customer. The license rights granted in this Section 2.2 are limited to one employee of Customer using the Licensed Product.
2.3. Restrictions and Other Conditions. All rights in or to the Licensed Product and Data that are not expressly granted to Customer in this Agreement are reserved to WhiteStar and its licensors. Customer shall not use or disclose the Licensed Product or Data except as expressly authorized in this Agreement. Customer shall not and shall not permit any personnel of Customer or any third party to: (i) sell, rent, lease, sublicense or otherwise transfer, disclose or distribute the Licensed Product, the Data or any copies of the Licensed Product or Data to any third parties; (ii) modify, translate, reverse engineer, decompile, or disassemble the Licensed Products or Data; (iii) create Derivative Works based upon the Licensed Products or Data or merge the Licensed Products, Data or any portion thereof with other software or applications, provided however, that Customer may, during the Free Trial Period and subject to the other terms and conditions of this Agreement, incorporate or merge the Data with Customer’s internal projects or data solely for purposes of enabling Customer to view, analyze and compare the Data with Customer’s data for Customer’s internal business purposes only and not for any commercial purpose or for distribution or dissemination to any third party; (iv) alter, destroy or remove any proprietary or other legend or restrictive notice contained or included in the Licensed Products or Data including any links or labels on or embedded within the Licensed Product or Data; (v) use the Licensed Products or Data to develop any application or program having the same primary features or function as the Licensed Products or Data; or (vi) copy or otherwise reproduce, or permit Customer personnel or any third party to copy or otherwise reproduce, the Licensed Product or any Data without the prior written consent of WhiteStar.
3. UPDATES; USER SUPPORT.
3.1. Updates. During the Free Trial Period, WhiteStar may update the Licensed Product and Data, which will be made available to Customer at approximately the same time and in the same format that WhiteStar provides such updates to its customers of the Licensed Product generally. All updates shall be deemed to be included within the Licensed Product and shall be licensed under the terms and conditions set forth in this Agreement.
3.2. User Support. During the Free Trial Period, WhiteStar shall make available telephonic technical support and consultation to provide advice on the use of the Licensed Product and Data and to troubleshoot problems with the performance of the Licensed Product. WhiteStar Customer Support shall answer Customer’s calls Monday through Friday from 9:00 a.m. to 4:00 p.m., Mountain Time, excluding regularly scheduled holidays of WhiteStar. WhiteStar may also make technical support and consultation available to Customer by e-mail.
4.1. Taxes. Customer shall be responsible for the payment of all taxes, duties and licenses, including taxes paid or payable by WhiteStar or that WhiteStar is required to collect, in connection with the provision of the Licensed Product by WhiteStar to Customer, or arising from the use, operation or possession of the Licensed Product or any part thereof by Customer, excluding any taxes based upon WhiteStar's net income. If Customer is exempt from any applicable taxes, Customer shall provide WhiteStar with the necessary documentation required by the taxing authority to sustain such an exemption.
5. TERM AND TERMINATION.
5.1. Term. This Agreement shall have a term equal to the Free Trial Period. If Customer does not purchase a subscription to the Licensed Product prior to the expiration of the Free Trial Period, Customer will lose access to the License Product and must delete all Data obtained or derived from the Licensed Product.
5.2. Termination for Breach. This Agreement and the license granted hereunder may be terminated by WhiteStar on written notice to Customer if Customer is in material breach of any of the terms of this Agreement or the license granted hereunder.
5.3. Effect of Termination or Expiration. Immediately upon termination or expiration of this Agreement, Customer’s rights to the Licensed Product and Data shall cease immediately and WhiteStar shall terminate Customer's access to the Licensed Product and Data.
All rights in and to the Licensed Products and Data that are not expressly granted to Customer in this Agreement are reserved to WhiteStar and its licensors. The selection, compilation, organization and format of the Licensed Product and Data constitute copyrightable subject matter. Excepting only that portion of the Data that constitutes public domain information: (a) the Licensed Product and the Data constitutes proprietary and confidential information and trade secrets of WhiteStar and its licensors; and (b) WhiteStar and its licensors are the exclusive owner of all right, title and interest in and to the Licensed Product and Data and all Derivative Works thereof, including, without limitation, any and all copyright, patent, trademark, trade secret or other intellectual property or proprietary rights.
7. DISCLAIMER; LIMITATION OF LIABILITY
7.1. DISCLAIMER. THE LICENSED PRODUCT AND DATA ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. WHITESTAR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO THE LICENSED PRODUCT OR DATA, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WHITESTAR DOES NOT WARRANT THAT THE LICENSED PRODUCT OR DATA WILL OPERATE ON CUSTOMER'S EQUIPMENT OR ANY OTHER EQUIPMENT WITHOUT INTERRUPTION. WHITESTAR DOES NOT WARRANT THAT THE LICENSED PRODUCT OR DATA WILL BE ACCURATE, COMPLETE, OR ERROR-FREE. CUSTOMER ASSUMES ALL RISK OF DAMAGE OR LOSS RESULTING FROM THE USE OF THE LICENSED PRODUCT AND DATA.
7.2. LIMITATION OF LIABILITY. EXCEPT IN THE CASE OF CUSTOMER’S BREACH OF THE LICENSE GRANTED IN THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR BUSINESS, LOST OPPORTUNITY, OR LOSS OF BUSINESS REPUTATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WHITESTAR’S LIABILITY TO CUSTOMER FOR ANY CLAIM UNDER THIS AGREEMENT, OR IN ANY WAY RELATING TO THE LICENSED PRODUCT OR DATA OR THE USE THEREOF, EXCEED $100.
8.1. No Assignment. The rights and obligations of Customer under this Agreement are not assignable or transferable without the prior written consent of WhiteStar (which may be granted or withheld in WhiteStar’s sole discretion) and any attempt to assign or transfer such rights or to transfer the Licensed Product or Data without WhiteStar’s consent shall be void. For purposes of this Section 8.1, if Customer is a corporation, limited liability company, partnership or other entity, any transfer, assignment, encumbrance or hypothecation of fifty percent or more (individually or in the aggregate) of any stock or other ownership or beneficial interest in such entity, and/or any transfer, assignment, encumbrance or hypothecation of any controlling ownership, beneficial or voting interest in such entity, will be deemed a transfer and will be subject to all of the restrictions and provisions contained in this Section 8.1.
8.2. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be sent by fax or prepaid, certified mail, return receipt requested, or express courier service, addressed to WhiteStar’s address shown at the beginning of this Agreement or Customer’s address given as part of the subscription process. The effective date of any notice sent pursuant to this Agreement shall be the date when actually received. Either party may change its address by written notice to the other party given in accordance with this Section 8.2
8.3. Entire Agreement. This Agreement, together with the exhibits and attachments hereto, constitutes the complete agreement between the parties and supersedes all prior or contemporaneous discussions, representations, and proposals, written or oral, with respect to the subject matters discussed herein. No modification of this Agreement shall be effective unless contained in a writing signed by an authorized representative of each party.
8.4. Attorneys Fees and Costs of Collection. If WhiteStar brings an action or other proceeding to enforce or interpret the terms and provisions of this Agreement, or to collect any amounts owing from Customer, WhiteStar, if it shall be the prevailing party, shall be entitled to have and recover from Customer all fees, costs and expenses (including, without limitation, all court costs and reasonable attorneys' fees) that it incurs in the pursuit of such action, proceeding or collection effort.
8.5. Equitable Remedies. Customer acknowledges and agrees that WhiteStar would be irreparably harmed if Customer used or disclosed, or threatened to use or disclose, the Licensed Product or Data in violation of the terms of this Agreement and the license granted hereunder. Accordingly, Customer agrees that WhiteStar shall have the right to seek and obtain injunctive relief (without necessity of posting bond or other surety) for any violation or threatened violation of the terms of this Agreement, in addition to all other rights and remedies available at law or in equity.
8.6. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Colorado. 8.7. Survival. The parties agree that Sections 4, 5, 6, 7 and 8 of this Agreement and any other provisions of this Agreement that by their nature would continue beyond the expiration or termination of this Agreement shall survive expiration or termination of this Agreement.
I agree to the above free trial terms and license agreement