Subscription Agreement

POPin SUBSCRIPTION AGREEMENT This POPin Subscription Agreement (“Subscription Agreement”) governs transactions by which Customer (as defined below) purchases certain rights to access the Service (as defined below) from POP, Inc. (“POP”). BY ACCEPTING THIS SUBSCRIPTION AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THIS SUBSCRIPTION AGREEMENT, OR BY OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS SUBSCRIPTION AGREEMENT, YOU: (i) AGREE TO BE BOUND BY THIS SUBSCRIPTION AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“Customer”); AND (ii) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS SUBSCRIPTION AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS SUBSCRIPTION AGREEMENT, YOU MUST NOT ACCEPT THIS SUBSCRIPTION AGREEMENT AND MAY NOT USE THE SERVICE. Specific details regarding the Service and additional terms and details specific to each transaction will be specified in an Order Form (as defined below). This Subscription Agreement together with any Order Form(s) constitute the “Agreement” between POP and Customer. The parties agree as follows:

  1. DEFINITIONS
    1. App” means the POPin mobile application and web application.
    2. Authorized User” means Subscriber’s employees and other individuals (e.g., partners, clients, students) who are authorized by Subscriber to use the Service.
    3. Documentation” means POP-provided user documentation, in all forms, relating to the Service (e.g., user manuals, on-line help files, etc.).
    4. Order Form” means an ordering document or online order specifying the details regarding the Service to be provided hereunder that is entered into between Subscriber and POP, including any addenda and supplements thereto.
    5. Order Term” means the term length specified in the applicable Order Form.
    6. Service” means the crowdsolving software platform known as POPin and found at https://popinnow.com/.
  2. USE OF THE SERVICE
    1. Use of the Service. Subject to the terms and conditions of this Agreement and Subscriber’s payment of all fees, POP grants to Subscriber a limited, non-exclusive, non-transferable right during the Order Term to: (a) access and use the Service; and (b) permit Subscriber’s Authorized Users to (i) access and use the Service, and (ii) download and use the App on compatible, authorized devices that such Authorized Users own or control; in each case ((a), (b)(i), and (b)(ii)), solely in connection with Subscriber’s internal business purposes.
    2. Use of the Documentation. Subject to the terms and conditions of this Agreement, POP grants to Subscriber a limited, non-exclusive, non-transferable license, without right of sublicense, during the Order Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Service and the App in accordance with this Agreement.
    3. Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: rent, lease, or otherwise permit third parties to use the Service or Documentation; use the Service to provide services to third parties (e.g., as a service bureau); circumvent or disable any security or other technological features or measures of the Service; nor attempt to derive the source code of, modify, create derivative works of the Service, any updates, or any part thereof.
    4. Compliance with Laws. Subscriber will comply with all applicable laws, rules, and regulations in its performance of this Agreement.
    5. Protection against Unauthorized Use. Subscriber will be responsible for all use of the Service, App, and Documentation associated with Subscriber, including by Authorized Users and unauthorized users who obtained access to the Service, App, or Documentation directly or indirectly through Subscriber. Subscriber will prevent any unauthorized use of the Service, App, and Documentation and immediately notify POP in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Service directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by POP to prevent or terminate unauthorized use of the Service, App, or Documentation.
    6. Reservation of Rights. POP grants to Subscriber a limited right to use and provide access to the Service, App, and Documentation under this Agreement. Subscriber will not have any rights to the Service, App, or Documentation except as expressly granted in this Agreement. POP reserves to itself all rights to the Service, App, and Documentation not expressly granted to Subscriber in accordance with this Agreement.
    7. Feedback. If Subscriber provides any feedback to POP concerning the functionality and performance of the Service (including identifying potential errors and improvements), Subscriber hereby assigns to POP all right, title, and interest in and to the feedback, and POP is free to use the feedback without payment or restriction.
    8. Authorized Users. Each Authorized User will be issued an account to access the Service. Each issued account is personal to the Authorized User it is issued to and may not be used by any other individuals, or transferred or deactivated without POP’s prior written consent. Subject to the terms of this Agreement, POP may agree to transfer an Authorized User account to another Authorized User for the remainder of the applicable Order Term. Each Authorized User’s use of the Service is additionally subject to POP’s then-current terms and conditions as may be modified from time to time (a current copy of which found at: https://popinnow.com/terms-of-service/ (“T&C”)), which T&C are incorporated herein by reference and made a part of this Agreement. Subscriber shall remain primarily liable to POP for its Authorized Users’ use of the Service, and any act or omission of any Authorized User that would be a violation of the T&C or this Agreement will be deemed to be a violation by Subscriber. Subscriber will use commercially reasonable efforts to assist POP in protecting POP’s (and its suppliers’) intellectual property rights, notify POP of any material breach of the T&C Subscriber becomes aware of, and cooperate with POP in any legal action to prevent or stop unauthorized use, reproduction, or distribution of the Service, App, or Documentation.
    9. Audit. Upon reasonable notice to Subscriber, and upon a schedule that is mutually agreed upon by the parties, POP shall be permitted to audit Subscriber’s use of the Service in order to determine Subscriber’s compliance with the terms of this Agreement. Subscriber shall reasonably cooperate with POP with respect to its performance of such audit.
    10. Data Retention. POP is not responsible for performing, and is not liable for any failure to perform, any back-up of any data provided, processed, or stored by Subscriber or Authorized Users in or through the Service or App. POP recommends that Subscriber perform regular exports and back-ups of Subscriber’s data.
    11. Data Ownership. Subscriber shall own all right, title, and interest in and to any data that is collected by POP from Subscriber in connection with Subscriber’s use of the Service (“Data”). Subscriber hereby grants POP a perpetual, non-exclusive license to use such Data (a) in order to provide the Service to Subscriber and Subscriber’s Authorized Users; (b) for statistical use (provided such data is de-identified); and (c) as necessary to monitor and improve the Service. If users participate in POP anonymously, whether by answering a question, or voting, or commenting, Subscriber acknowledges and agrees that POP will not share such users’ identity with Subscriber.
  3. FEES AND PAYMENT
    1. Fees. POP will invoice Subscriber and Subscriber will pay POP the fees specified in the Order Form and any other amounts owing under this Agreement, plus any applicable taxes as described below.
    2. Payment Terms. Unless otherwise specified in the Order Form Subscriber will pay all amounts due annually, in advance, within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by POP to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars, and are non-refundable.
    3. Taxes. Other than net income taxes imposed on POP, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by POP after all such taxes are paid are equal to the amounts that POP would have been entitled to in accordance with this Agreement as if the taxes did not exist.
    4. Third-Party Services. Subscriber’s use of the Service may incur third-party fees, such as fees charged by Subscriber’s carrier or other third party for data usage or fees charged by a third-party storage, or data provider, or other service provider and may be subject to third party terms, such as such carrier’s or other service providers’ terms of service, and Subscriber will be responsible to pay all such fees and abide by all such terms.
  4. TERM AND TERMINATION
    1. Term. This Agreement will continue for the Order Term identified in the applicable Order Form unless otherwise terminated earlier in accordance with the terms of this Agreement. Unless otherwise specified in the applicable Order Form, after the initial Order Term expires the Order Term will automatically renew for additional successive one-year terms unless at least 60 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.
    2. Termination. Either party may terminate the Order Term if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 4.2 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Subscriber fails to timely pay any amount due, POP may, without limitation to any of its other rights or remedies, suspend access to the Service or App until it receives all amounts due.
    3. Post-Termination Obligations. If this Agreement is terminated for any reason, Subscriber will pay to POP any fees or other amounts that have accrued prior to the effective date of the termination, any and all liabilities accrued prior to the effective date of the termination will survive, and Subscriber and its Authorized Users will immediately cease using the Service, App, and Documentation.
    4. Survival. Sections 1, 2.3 – 2.7, 3, 5, 7, and 8 will survive any expiration or termination of this Agreement.
  5. WARRANTIES AND DISCLAIMER
    1. Disclaimer. THE SERVICE, APP, DOCUMENTATION, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, APP, AND DOCUMENTATION ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. POP DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, RELATING TO THE SERVICE, APP, AND DOCUMENTATION, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, APP, AND DOCUMENTATION. POP EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. POP DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE, APP, OR DOCUMENTATION. POP DOES NOT WARRANT THAT THE SERVICE, APP, OR DOCUMENTATION IS ERROR-FREE OR THAT OPERATION OF THE SERVICE OR APP WILL BE SECURE OR UNINTERRUPTED. POP DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE, APP, OR DOCUMENTATION IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE, APP, OR DOCUMENTATION WILL ALWAYS BE AVAILABLE. POP EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE SERVICE, APP, OR DOCUMENTATION.
  6. SUBSCRIBER INDEMNIFICATION
    1. Defense. Subscriber will defend POP from any actual or threatened claim, proceeding, or suit (“Claim”) brought by a third party arising out of or based upon Subscriber’s use of the Service or Authorized Users’ use of the Service or App, if: POP gives Subscriber prompt written notice of the Claim; POP grants Subscriber full and complete control over the defense and settlement of the Claim; POP provides assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and POP complies with any settlement or court order made in connection with the Claim. POP will not defend or settle any Claim without Subscriber’s prior written consent. POP will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.
    2. Indemnification. Subscriber will indemnify POP from and pay all damages, costs, and attorneys’ fees finally awarded against POP in any Claim under Section 6.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by POP in connection with the defense of a Claim under Section 6.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 6.1.
  7. LIMITATIONS OF LIABILITY
    1. Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, POP WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER OR ANY OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF POP IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
    2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL POP’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO POP UNDER THIS AGREEMENT DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
    3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY POP TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 7 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
  8. GENERAL
    1. Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to act as an agent or direct or control the day-to-day activities of the other. All financial and other obligations associated with each party’s business are the sole responsibility of that party.
    2. Export. The Service and App may be subject to United States export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Subscriber must comply strictly with all such regulations that are now or later in effect and acknowledges that it has the responsibility to obtain licenses to export, reexport, or import the Service, App, or Documentation, as needed.
    3. Subcontractors. POP may utilize a subcontractor or other third party to perform its duties under this Agreement.
    4. Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act, Subscriber and its employees and agents will not directly or indirectly make an offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision (including a decision not to act) of an official of any government, including the United States Government, or inducing such a person to use his influence to affect any such governmental act or decision in order to benefit POP.
    5. Force Majeure. POP will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond POP’s reasonable control.
    6. Assignability. Subscriber may not assign its rights, duties, or obligations under this Agreement without POP’s prior written consent. Any attempt by Subscriber to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void. POP may freely assign its rights, duties, or obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
    7. Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
    8. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Orange County, California, in connection with any action arising out of or in connection with this Agreement.
    9. Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach.
    10. Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any limitation or restriction on the grant of any license to Subscriber under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
    11. Counterparts. This Agreement may be executed in any number of identical counterparts, each of which will be considered an original and all of which together will be construed as and constitute the same agreement.
    12. Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between the parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed. No employee, agent, or other representative of POP has any authority to bind POP with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. POP will not be bound by, and specifically objects to, any term, condition or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise.