WHITESTAR LICENSED PRODUCTS AGREEMENT
This WhiteStar Licensed Products Agreement (this “Agreement”) is between WhiteStar Corporation, a Colorado corporation (“WhiteStar”), and Customer (“Customer”) subscribing to or being provided with one or more Licensed Products (defined below) on WhiteStar’s website (the “Website”). This Agreement 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, Customer agrees to be legally bound by this Agreement.
PLEASE BE ADVISED: This Agreement contains provisions that govern claims between WhiteStar and Customer. With limited exceptions, these provisions require Customer to submit claims against WhiteStar to binding and final arbitration on an individual basis.
In consideration of the foregoing and the terms set forth in this Agreement, WhiteStar and Customer agree as follows:
1. WHITESTAR LICENSED PRODUCTS
This Agreement covers any products or services provided by WhiteStar through its Website or via the internet (“Licensed Products”) to Customer. Customer may select which Licensed Products it will receive. Some Licensed Products may be offered initially on a free trial basis, as further described below. When the tree trial expires, Customer must purchase a Subscription (defined in Section 4.1) to a Licensed Product in order to continue using the Licensed Product. Certain Licensed Products may not be offered initially on a free trial basis, in which case Customer must purchase a Subscription in order to use the Licensed Product in any capacity.
2. CUSTOMER ACCOUNT
2.1. Customer Account and Registration. In order to access a Licensed Product, Customer will be required to register an account with WhiteStar through the Website (a “Customer Account”). By creating a Customer Account, Customer (this includes any employee or agent designated by Customer operating on Customer’s behalf) agree to provide WhiteStar with complete and accurate information and to keep this information up to date. This may include, but is not limited to, employee names, email addresses, telephone numbers, payment method, and password. Customer shall not share its usernames or passwords with third parties.
2.2. Customer Responsibilities. Customer is solely responsible for all activities conducted or fees incurred under or through Customer Account, whether or not such activities are authorized by Customer. Customer agrees to immediately notify WhiteStar of any unauthorized use of Customer Account or any breach of Customer Account’s security.
2.3. Authorized Users. Only Authorized Users are permitted to use the Licensed Products on Customer’s behalf. “Authorized Users” means the person authorized by Customer to use the Licensed Product and Data, which persons must be (a) Customer’s employees, but only while acting within the scope of their employment or (b) persons retained in writing by Customer as non-employee consultants, but only while acting within the scope of their retention by Customer.
3. FREE TRIAL
3.1. Free Trial Period. WhiteStar may provide Customer with access to certain Licensed Products on a free trial basis to enable Customer to try the Licensed Product. The term of the free trial access will be determined by WhiteStar (“Free Trial Period”). At WhiteStar’s discretion, the Free Trial Period may be lengthened, shortened, or terminated without liability or notice. At the end of the Free Trial Period, Customer must purchase a Subscription to continue access to the Licensed Products.
3.2. License for Free Trial Period. Subject to the terms and conditions of this Agreement, WhiteStar grants to Customer a nonexclusive, nontransferable, limited right and license during the Free Trial Period to access and use the Licensed Product and Data for the limited purposes of viewing, printing, and using the Data within the scope and course of Customer’s regular business activities. The license rights granted in this Section 3.2 are limited to one employee of Customer using the Licensed Product.
3.3. No Fees. There are no fees for use of the Licensed Product during the Free Trial Period.
4. SUBSCRIPTIONS AND LICENSE
4.1. Subscriptions. The Licensed Products are offered through a subscription-based model, and require that Customer make recurring payments for the continued access to and use of the Licensed Products (“Subscription”). Subscriptions are for one year (unless specified otherwise by WhiteStar during the and begin when Customer makes its first payment to WhiteStar, unless otherwise terminated in accordance with this Agreement (“Initial Period”). At the end of the Initial Period, the Subscription shall automatically renew for an additional one year period, and continue to automatically renew at the end of each one year period for an additional one year period, unless otherwise terminated in accordance with this Agreement (each additional one year period is a “Renewal Period”). The Initial Period and each Renewal Period are each a “Subscription Period.”
4.2. Access to Licensed Product. During a Subscription Period, WhiteStar will provide Customer with access to the Licensed Product via the Website in a web streaming format.
4.3. Grant of License. WhiteStar grants to Customer a nonexclusive, nontransferable, limited license during the Subscription Period to access and use the Licensed Product and Data for the limited purposes of viewing, printing, and using the Data within the scope and course of Customer’s regular business activities. Customer may permit an unlimited number of Authorized Users to access the Licensed Product and Data simultaneously and to use the Licensed Product and Data on the Company’s internal network.
5. SUBSCRIPTION FEES AND PAYMENT METHOD
5.1. Subscription Fees. The fee Customer shall pay to WhiteStar for the Subscription vary for each Licensed Product chosen by Customer (each, a “Subscription Fee”). Unless otherwise stated, all Subscription Fees due are payable in advance, and will be billed automatically to the Payment Method (defined below) at the start of each Subscription Period. Once paid, the Subscription Fee is final and non-refundable, except as expressly provided herein. Customer hereby acknowledges that WhiteStar reserves the right to terminate Customer’s access to the Licensed Product for failure to pay the Subscription Fee. WhiteStar reserves the right to modify the Subscription Fee prior to each Renewal Period. WhiteStar shall provide Customer with notice of any pricing changes by posting the new prices on the Website or by sending Customer email notification.
5.2. Payment. Unless otherwise agreed to in writing by WhiteStar, prior to the commencement of the Initial Period, Customer shall provide WhiteStar with its credit card or other account information, as specified by WhiteStar (“Payment Method”). The Subscription Fee will be collected by a third-party payment processing service (“Payment Processor”) engaged by WhiteStar and such Payment Processor shall automatically deduct the Subscription Fee from the Payment Method. Customer hereby authorizes the Payment Method issuer to pay the Subscription Fee. Customer agrees to provide current, complete, and accurate billing and Payment Method information. Customer further agrees to promptly update Payment Method, including the credit card or account numbers, expiration dates, and billing address to keep the Payment Method current and accurate.
5.3. 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. Customer shall self-accrue and remit any sales and use taxes due under this Agreement to the proper taxing authority as required by applicable state laws, rules, or regulations, except for sales and use taxes imposed directly against WhiteStar. 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.
6. OWNERSHIP AND RESTRICTIONS.
6.1. Ownership. 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) as between the parties, WhiteStar and its licensors are the exclusive owner of all right, title, and interest in and to the Licensed Product and Data, including, without limitation, any and all copyright, patent, trademark, trade secret or other intellectual property or proprietary rights. Customer will not claim any ownership interest in the Licensed Products or Data.
6.2. Restrictions. Customer shall not and shall not permit any personnel of Customer or any third party (including Authorized Users) to: (a) 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; (b) modify, translate, reverse engineer, decompile, or disassemble the Licensed Products or Data; (c) create derivative works based upon the Licensed Products or Data or merge the Licensed Products or the Data, or any portion thereof, with other software or applications; provided, however, that Customer may, during the Free Trial Period and Subscription 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, compare, and use the Data with Customer’s data for Customer’s internal business purposes only and not for any other commercial purpose or for distribution or dissemination to any third party; (d) 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; (e) 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 (f) copy or otherwise reproduce, or permit any Authorized User, Customer’s other personnel, or any other third party, to copy or otherwise reproduce, the Licensed Product or any Data without the prior written consent of WhiteStar.
7. WHITESTAR OBLIGATIONS
7.1. Provision of Licensed Products. During the Subscription Period, WhiteStar shall use commercially reasonable efforts to make the Licensed Products available on a 24/7 basis, except (a) for scheduled system back-up or other on-going maintenance as required and scheduled in advance by WhiteStar or (b) for any unforeseen cause beyond WhiteStar’s reasonable control, including internet service provider or communications network failures, denial of service attacks or similar attacks, or any force majeure event described in Section 11.6. WhiteStar will monitor performance indicators on the systems and network infrastructure (its own and that of third party suppliers) in order to gauge the overall performance of the Licensed Products, and will use commercially reasonable efforts to maintain satisfactory performance of the Licensed Products.
7.2. Updates. During the Subscription Period, WhiteStar may update the Licensed Products 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 Products 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.
7.3. User Support. During the Free Trial Period and the Subscription Period, WhiteStar may 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 may 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. WhiteStar may use any feedback or ideas provided by Customer concerning the Licensed Product, Data, or otherwise in any manner WhiteStar desires without further obligation to Customer.
8.1. Termination for Convenience.
(a) WhiteStar may terminate Customer’s Free Trial Period or any Subscription at any time and for any reason by providing Customer with five days written notice. WhiteStar shall refund a pro rata portion of any Subscription Fees paid by Customer for the unexpired portion of any remaining Subscription Period.
(b) Customer may terminate its Subscription at any time and for any reason by providing WhiteStar with 30 days written notice.
8.2. Termination for Breach. If a party commits a material breach of this Agreement, the other party may provide the breaching party with written notice of the breach. If the breaching party does not cure the breach within 14 days after receiving the notice, this Agreement will automatically terminate.
8.3. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, (a) Customer’s right and license to the Licensed Product and Data shall cease, (b) WhiteStar shall terminate Customer’s access to the Licensed Product and Data, and (c) Customer shall delete all Data from Customer’s computers and network.
9. DISCLAIMER; LIMITATION OF LIABILITY
9.1. DISCLAIMER. THE LICENSED PRODUCTS AND DATA ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. WHITESTAR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO THE LICENSED PRODUCTS AND DATA, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WHITESTAR DOES NOT WARRANT THAT THE LICENSED PRODUCTS OR DATA WILL OPERATE ON CUSTOMER’S EQUIPMENT OR ANY OTHER EQUIPMENT WITHOUT INTERRUPTION. WHITESTAR DOES NOT WARRANT THAT THE LICENSED PRODUCTS OR DATA WILL BE ACCURATE, COMPLETE, OR ERROR-FREE. CUSTOMER ASSUMES ALL RISK OF DAMAGE OR LOSS RESULTING FROM THE USE OF THE LICENSED PRODUCTS AND DATA.
9.2. LIMITATION OF LIABILITY. WHITESTAR WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR DAMAGES IN THE FORM OF LOST PROFITS OR BUSINESS, LOST OPPORTUNITY, OR LOSS OF BUSINESS REPUTATION, EVEN IF WHITESTAR 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 PRODUCTS OR DATA OR THE USE THEREOF, EXCEED THE TOTAL SUBSCRIPTION FEES PAID BY CUSTOMER IN THE ONE YEAR PERIOD IMMEDIATELY BEFORE THE EVENT GIVING RISE TO LIABILITY.
9.3. Release and Indemnity. Customer hereby releases WhiteStar from any liability, loss, damage, expense, or cost incurred by Customer which arises out of or is related to Customer’s use of the Data or breach of this Agreement. Customer shall indemnify and defend WhiteStar from and against any liability, loss, damage, expense, and cost (including without limitation attorneys’ fees) arising out of or related to any third party claim, action, suit, or proceeding resulting from Customer’s breach of this Agreement.
10.1. Definition of Confidential Information.
(a) “Confidential Information” means all information that WhiteStar discloses to Customer that falls into one or more of the following categories: (i) any information identified as confidential by WhiteStar; (ii) any information, including a formula, pattern, compilation, program, device, method technique, or process that (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainably by proper means by, other persons who can obtain economic value from its disclosure or use and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; (iii) any information which Customer knows or reasonably should know that WhiteStar is required to keep confidential under a binding obligation with a third party; and (iv) all information provided to Customer which Customer knows or reasonably should know could be detrimental to the interests of WhiteStar if disclosed or used without authorization, whether or not such information is identified as confidential.
(b) Information that falls into any one or more of the following categories will not constitute Confidential Information: (i) information that is or becomes part of the public domain through no fault of Customer; (ii) information that Customer can show was known by Customer prior to receipt from WhiteStar; (iii) information that Customer can show was independently developed by or for Customer without relying on any Confidential Information; and (iv) information that Customer can show was rightfully received from a third party who is not under any obligation to maintain the confidentiality of such information, under circumstances not involving a violation of the rights of WhiteStar.
(c) For example and without limiting the definition of Confidential Information, Confidential Information includes Data and the Licensed Products, discoveries, techniques, processes, inventions, invention disclosures, patent applications, improvements, drawings, blueprints, databases, and access codes and similar security information and procedures.
10.2. Protection of Confidential Information. Customer will not, directly or indirectly, without the written consent of WhiteStar: (a) disclose, transfer, or otherwise communicate to any third party any Confidential Information, other than to those employees, agents, and advisors who have been advised of the confidential nature of the Confidential Information and who have agreed to disclosure and use restrictions with respect to confidential information similar to the restrictions set forth herein; or (b) use Confidential Information for any purpose, other than the exercise of Customer’s rights or the performance of its obligations hereunder. Customer shall be liable for the use or disclosure of Confidential Information by persons to whom Customer discloses Confidential Information hereunder which would constitute a breach of this Section 12.02 if performed by Customer.
10.3. Disclosure by Court Order or Law. Customer will not be in breach of the obligations hereunder to the extent that it provides Confidential Information under a court order or discloses Confidential Information as required by law. Before Customer discloses Confidential Information under this section, Customer must (except to the extent it is illegal to do any of the following): (a) notify WhiteStar of the court order or legal requirement; (b) give WhiteStar a reasonable opportunity to contest or limit the required disclosure; and (c) provide reasonable assistance at WhiteStar’s expense.
10.4. Return of WhiteStar Property. Upon termination of this Agreement or demand by WhiteStar, Customer shall deliver to WhiteStar or, at WhiteStar’s option, destroy the originals and all copies of any and all materials and writings received from, created for, or belonging to WhiteStar which relate to or contain any Confidential Information. If such materials are destroyed, Customer shall provide WhiteStar with written certification of destruction. If Customer has electronic records containing Confidential Information, Customer shall delete the electronic records after providing a copy thereof to WhiteStar and provide WhiteStar with written certification that Customer has deleted the electronic records.
11.1. Assignment. Neither this Agreement nor any right or obligation hereunder may be assigned or otherwise transferred by Customer (whether voluntarily, by operation of law, or otherwise) without the prior express written consent of WhiteStar; provided, however, that Customer, without such consent, may assign this Agreement and its rights and obligations hereunder in connection with any of the following transactions: (a) the transfer or sale of all or substantially all of Customer’s business or assets; (b) the sale, spin-off, or creation of a subsidiary or affiliated entity of the assignor; or (c) a merger, consolidation, change in control or similar transaction to which Customer is a party. Any permitted assignee will be deemed to have assumed all the obligations of Customer under this Agreement. WhiteStar may freely assign this Agreement without Customer’s consent.
11.2. Modification. WhiteStar reserves the right, in its sole discretion, to change, modify, add or delete portions of this Agreement prior to any Renewal Period. Customer’s continued use of the Licensed Products following a posting of this revised Agreement shall constitute Customer’s acceptance of the changes made.
11.3. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be sent by prepaid, certified mail, return receipt requested, express courier service, or by email (with proof of receipt) addressed to WhiteStar’s address in the “Contact Us” section of the Website, or Customer’s address given as part of the registration 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 11.3.
11.4. 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. This Agreement is not intended to give any rights to third parties.
11.5. Attorneys’ Fees. If WhiteStar brings an action or other proceeding to collect any unpaid Subscription Fees due, WhiteStar, if it is the prevailing party in such action or proceeding, shall be entitled to recover from Customer all fees, costs, and expenses (including, without limitation, all court costs and reasonable attorneys’ fees) that WhiteStar incurs in the pursuit of such action or proceeding.
11.6. Force Majeure. WhiteStar will not be liable for any failure or delay in performance of its obligations hereunder arising out of or caused, directly or indirectly, by forces beyond WhiteStar’s reasonable control, including without limitation by interruptions, loss, or malfunctions of utilities, communications, computer, or network services.
11.7. Severability. If any provision of this Agreement is held invalid or unenforceable, the parties intend that the provision be enforceable to the maximum extent permitted under law and therefore desire and request that the court reform the invalid or unenforceable provision to render it enforceable to the maximum extent permitted. If the court refuses to modify or reform the provision, then the provision shall be severed from this Agreement with no effect upon the remaining provisions of this Agreement.
11.8. Equitable Remedies. Customer acknowledges and agrees that WhiteStar would be irreparably harmed if Customer breached or threatened to breach this Agreement. Accordingly, Customer agrees that WhiteStar shall have the right to seek and obtain injunctive relief, including without limitation specific performance, without necessity of posting bond or other surety for any breach or threatened breach of this Agreement, in addition to all other rights and remedies available at law or in equity.
11.9. Disputes Resolution.
(a) If any claim, question, dispute or disagreement (each, a “Dispute”) arises from or in connection with this Agreement, the parties shall use their best efforts to settle the Dispute amicably. If they cannot settle the Dispute amicably despite their best efforts, the Dispute must be resolved via arbitration, except as set forth below. Arbitration will occur in Denver, Colorado, in accordance with the Commercial Arbitration Rules (expedited procedures) of the American Arbitration Association then in effect, and shall be resolved individually, without resort to any form of class action or representative action, and Customer agrees that it shall not seek to aggregate any claims with other persons. Reasonable discovery will be allowed, the extent of which will be determined in the discretion of the arbitrator. The arbitrator may award attorneys’ fees, costs and expenses to the substantially prevailing party if the arbitrator finds that the non-prevailing party’s conduct was characterized by fraud or dishonesty or was otherwise patently unreasonable under the circumstances.
(b) The existence of the arbitration proceedings, the contents of the arbitrator’s award, and other non-public information regarding any Dispute will be Confidential Information, regardless of whether it is specifically designated as such.
(c) The arbitrator’s award will be final, non-appealable, and binding on the parties and may be enforced by any court of competent jurisdiction. The arbitrator will render a brief written statement of the basis for the award, upon request of either party made before the award is issued.
(d) Notwithstanding the other provisions of this Section 11.9, WhiteStar shall have the right to remove any Dispute subject to binding arbitration to a court of law or to initially seek resolution of any Dispute in a court of law. Customer shall have no right to remove a Dispute subject to binding arbitration to a court of law or to initially seek resolution of any Dispute in a court of law.
11.10. 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. CUSTOMER WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. Customer submits to the jurisdiction and venue of the state and federal courts located in Denver, Colorado, and waives any objection Customer may have to such courts.
11.11. Survival. Any provisions of this Agreement that by its nature should continue beyond the expiration or termination of this Agreement to give effect to the parties’ intent shall survive expiration or termination of this Agreement.
WHITESTAR LICENSED PRODUCTS AGREEMENT
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