SOFTWARE SUBSCRIPTION AGREEMENT
This Software Subscription Agreement (the “Agreement”) is a legal agreement between the individual set forth on the registration page (“Subscriber”) and Qwire Holdings, LLC (“Qwire”). This Agreement specifies the terms under which Subscriber may access and use the Platform. Please read this Agreement carefully before accessing the Platform, because by accessing the Platform, clicking “I Agree,” or otherwise manifesting assent to this Agreement, Subscriber agrees to be bound by the terms of this Agreement. If Subscriber does not agree to (or cannot comply with) all of the terms of this Agreement, do not access or use the Platform.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Qwire and Subscriber (collectively, the “Parties” and each, a “Party”) hereby agree as follows:
1.1 “Platform” means Qwire’s proprietary, cloud-based data and media management workflow software platform.
1.2 “Project” means any individual work where music accompanies a moving image, including, without limitation, a television episode (pilot or otherwise), a feature film, a movie-of-the-week, a news program, or a video game.
1.3 “Subscriber Content” means any data or other materials that Subscriber makes available to Qwire pursuant to this Agreement.
1.4 “Term” shall have the meaning set forth in Section 5.1.
2.1 Subscription. Subject to the terms and conditions of this Agreement, Subscriber may access and use the Platform during the Term solely in connection with Projects. Subscriber shall be solely responsible for procuring a valid license to access and use the most current version of Filemaker and for installing and configuring Filemaker on Subscriber’s workstation. Subscriber’s use of Filemaker shall be governed by and subject to the terms and conditions set forth in Filemaker license. Subscriber agrees to abide by all of the requirements, obligations, terms, and restrictions set forth in such Filemaker license. Qwire reserves the right to change the availability of any feature, function, or content relating to the Platform, at any time, without notice or liability.
2.2 License to Subscriber Content. Subject to the terms and conditions of this Agreement, Subscriber hereby grants to Qwire during the Term a limited, non-exclusive, non-transferable license to store (at the facilities of Qwire and/or its third-party hosting providers), access, and use the Subscriber Content solely in furtherance of Qwire’s obligations hereunder; provided, however, that: (i) Qwire may use and disclose, both during and after the Term, any Subscriber Content that has been anonymized and aggregated with other anonymized content and cannot be used to identify Subscriber or Subscriber’s Projects; and (ii) after the Term, Qwire may retain an archival copy of all Subscriber Content, unless Subscriber provides Qwire a written request to delete or return such Subscriber Content.
2.3 Ownership. All right, title, and interest in and to the Platform, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, shall be and remain the sole and exclusive property of Qwire. All right, title, and interest in and to the Projects and the Subscriber Content, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, shall be and remain the sole and exclusive property of Subscriber.
2.4 Support; Data Security. Qwire shall provide online, telephone, and/or e-mail support to Subscriber Monday through Friday (excluding United States holidays) from 9:00 AM to 5:00 PM Eastern Standard Time relating to any failure of the Platform to operate substantially in accordance with its documentation. Qwire shall employ commercially reasonable physical, administrative, and technical safeguards to secure the Subscriber Content on the Platform from unauthorized use or disclosure.
2.5 Restrictions on Use. Subscriber will not (and will not permit any third party to): (i) allow anyone other than Subscriber Users to access and use the Platform; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform; (iii) modify, adapt, or translate the Platform; (iv) make any copies of the Platform; (v) resell, distribute, or sublicense the Platform; (vi) remove or modify any proprietary marking or restrictive legends placed on the Platform; (vii) use the Platform in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; or (viii) introduce into the Platform any software, virus, worm, “back door,” Trojan Horse, or similar harmful code.
2.6 Compliance. Qwire has the right to monitor Subscriber’s compliance with the applicable usage limitations and the other provisions of this Agreement. If any such monitoring reveals that Subscriber has exceeded any usage limitation or otherwise is not using the Platform in compliance with this Agreement, then Subscriber will promptly remedy any non-compliance with this Agreement that is revealed through such monitoring.
3.1 Subscription Fees. Currently, there is no fee for Subscriber to access and use the Platform. However, Qwire may charge a fee in the future at any time by posting a notice on the Platform, and any such notice shall go into effect thirty (30) days after it is so posted. It is Subscriber’s responsibility to check for such notices. Subscriber’s sole right in relation to any charging of a fee or any subsequent increase by Qwire is to terminate this Agreement.
3.2 License Fees for Filemaker. Subscriber has the option of licensing Filemaker through Qwire. As consideration for such license, Subscriber shall pay Qwire the applicable license fees set forth on the Platform. All payments will be charged and made in U.S. dollars.
3.3 Late Payments. In the event Subscriber fails to timely or completely pay any amount due Qwire pursuant to this Agreement (except for amounts that are being disputed by Subscriber in good faith), interest at the rate of one and one half percent (1.5%) per month will accrue on all past due amounts until such amounts, including accrued interest, are paid in full. Subscriber shall promptly reimburse Qwire for any reasonable expenses of collection, including costs, disbursements, and reasonable outside legal fees actually incurred by Qwire, to the extent necessitated by a refusal by Subscriber to pay Qwire any amounts as and when due that are not being disputed by Subscriber in good faith. In the event that any undisputed payment due to Qwire is over thirty (30) days past due, such failure to pay will be considered a material breach of this Agreement, and Qwire will have the right to pursue all other legal and equitable remedies available to it.
4.1 Term. This Agreement commences on the Effective Date and shall remain in full force and effect until terminated as set forth below (the “Term”).
4.2 Termination. This Agreement may be terminated only as follows: (i) either Party may terminate this Agreement at any time for any reason or no reason on thirty (30) days prior, written notice to the other Party; or (ii) in the event of a material breach of this Agreement by a Party, the other Party may terminate this Agreement by giving ten (10) days prior, written notice to the breaching Party; provided, however, that this Agreement will not terminate if the breaching Party has cured the breach before the expiration of such ten (10) day period.
4.3 Effect of Expiration or Termination. Upon expiration or termination of this Agreement: (i) Subscriber shall pay Qwire for any amounts due and payable hereunder as of the effective date of termination or expiration; (ii) all rights granted to Subscriber hereunder will immediately cease, and Subscriber will immediately cease all access and use of the Platform; and (iii) Subscriber shall either return to Qwire (or, at Qwire’s instruction, destroy and provide Qwire with written certification of the destruction of) all documents, computer files, and other materials containing any of Qwire’s non-public information that are in Subscriber’s possession or control.
4.4 Survival. The following provisions will survive expiration or termination of this Agreement: Section 1 (“Definitions”), Section 4.3 (“Effect of Expiration or Termination”), Section 5 (“Confidentiality”), Section 6 (“Disclaimer”), Section 7 (“Limitation of Liability”), Section 8 (“Indemnification”), Section 9 (“General Provisions”), and this Section 4.4 (“Survival”).
5.1 Confidentiality. Subscriber shall not, directly or indirectly, use for Subscriber’s own benefit or disclose to any third party the terms of this Agreement or any trade secret, confidential information, passwords or other access credentials to the Platform, financial information, or other non-public information of Qwire without the prior, written permission of Qwire in each instance.
5.2 Feedback. During the Term, Subscriber may provide Qwire with feedback, comments, suggestions, ideas, and the like regarding the Platform (collectively, “Feedback”). Subscriber agrees that Qwire shall be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation to Subscriber.
SUBSCRIBER ACKNOWLEDGES THAT SUBSCRIBER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.