SUBSCRIPTION AGREEMENT AND END-USER LICENSE
1. The FlipFolder® Service. Pepper & Son, Inc. (“Pepper”) offers its proprietary, FLIPFOLDER® Software as a Service (the “Service”) pursuant to the terms and conditions set forth in this Subscription Agreement and End-User License (the “Agreement”).
2. Description of the Service. Using the Service, subscribing bands and music ensembles (“Subscribers”) can deposit sheet music (“Music”) into repositories called “Vaults” that can be accessed and used by members of the Subscriber’s band or ensemble (“Members”) using approved cellphones and other electronic devices approved by Pepper (“Approved Devices”) furnished by the Members or the Subscriber. The Service is intended to be managed by a band or ensemble director appointed by the Subscriber (“Director” ) to:
a. establish a dashboard (the “Dashboard”) to be accessed by the Subscriber and its Director to manage access to and use of the Service by Members;
b. create profiles (the “Profiles”) of Members who are authorized by the Subscriber to access and use the Service to obtain Music on Approved Devices with restrictions imposed by the Director (“Restrictions”); and
c. manage a (single) Vault into which the Director may deposit Music to be accessed and used by Members consistent with Restrictions.
3. Subscription Fees and Member Fees. Access to and use of the Service by the Subscriber is conditioned upon the Subscriber’s timely payment of Pepper’s then-current fees (“Subscription Fees”) therefor. Access to and use of the Service by each Member is conditioned upon the Subscriber’s timely payment of Pepper’s then-current fees for Members (“Member Fees”) authorized by the Subscriber to access and use the Service. Pepper reserves the absolute right to deny access to and use of the Service to any Subscriber (and all of its Members) if the Subscriber fails to timely pay Subscription Fees when due and to deny access to and use of the Service to any Member for whom its Subscriber has failed to pay Member Fees when due. As used herein, the Term of this Agreement (the “Term”) shall be each period for which the Subscriber has paid its Subscription Fee and Member Fees.
4. Changes to the Service and Fees. Pepper reserves the right, but shall not be obligated, to update and upgrade the Service from time to time, including, but not limited to, user interfaces, features, procedures and documentation. Pepper shall have the right, without notice or Subscriber’s prior consent, to modify the requirements for use of the Service, to make changes to Approved Devices, increase Subscription Fees and Member Fees and impose other limits, including restrictions as to the capacity of a Subscriber’s Vault.
5. Limited Licenses. During the Term, and subject always to the terms and conditions of this Agreement, Pepper grants the following limited, non-exclusive, non-transferable licenses (each, a “License”):
(a) to the Subscriber, a License to access and use the Service, to grant access to and use of the Service by a single Director and to purchase Licenses for Members by making timely payment of Member Fees; and
(b) to each Member for whom the Subscriber pays a Member Fee, a License to access and use the Service solely to display Music then in the Vault using Approved Equipment and abiding by any and all Restrictions imposed thereupon. For the avoidance of doubt, the foregoing License does not authorize any Member to: (i) create any copy, photograph or other image of Music displayed by the Service; or (ii) share access or use of the Service with any other person, including another Member.
The Subscriber and Members grant a limited, non-exclusive, non-transferable license to Pepper for all data which they enter into the Service.
Except for the express Licenses granted herein, no other licenses of any kind are granted to the Subscriber or any Member by implication or otherwise. No license to any trademark of Pepper, including, but not limited to “FLIPFOLDER” and its logo, is granted to the Subscriber or any Member.
6. Delivery of the Service; Subscriber’s and Director’s Responsibilities. During the Term, Pepper will make the Service available to the Subscriber on one (1) or more servers accessible over the Internet using a passcode or passcodes (collectively, the “Executive Password”) supplied by Pepper. The Subscriber shall provide the Executive Password to its Director who shall be authorized by the Subscriber to and be responsible to Pepper to:
a. organize and manage the Subscriber’s Dashboard;
b. approve and maintain Profiles through the issuance and deactivation of Member passwords (the “Member Passwords”);
c. deposit Music into and remove Music from the Vault in strict compliance with Section 8 of this Agreement;
d. immediately report information regarding changes in the number and/or identity of Members (including assigned and deactivated Member Passwords) to Pepper.
Actions taken by Directors shall be binding upon the Subscriber and notices delivered to its Director(s) shall be deemed to be notice delivered to the Subscriber. The Subscriber shall be responsible for all actions taken by its Director(s).
7. Prohibitions Regarding Access to and Use of the Service by the Subscriber and Members. Except as expressly authorized by this Agreement, neither Subscriber, Director nor any Member shall: (i) provide access to or use of the Service, or transfer, sublicense or otherwise allow access to or use of the Service, to any third party: (ii) provide a service bureau, time sharing or other computer services to third parties; (iii) modify, translate, reverse engineer, decompile or disassemble the Service (or related software or create similar or derivative works based upon the Service or the related software; (iv) remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Service; (v) use or authorize any device other than an Approved Device; or (vi) introduce any virus, worm or routine that interferes with any application, function, or use of the Service, or is intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or communication associated with the Service. The Subscriber shall be responsible for all actions taken by its Members in violation of this Section 7.
8. Subscriber Solely Responsible for Obtaining and Enforcing Rights to Music. The Subscriber shall not deposit any Music into the Vault unless and until it shall have obtained all required licenses and paid all required royalties for the access to and use of such Music. In the event that the rights acquired by Subscriber to Music are restricted or limited in any way (“Limited Rights”), Subscriber shall be solely responsible to create and enforce Restrictions to prevent the violation of such Limited Rights. In the event that Subscriber’s Limited Rights expire at any time during the Term, Subscriber shall immediately remove all affected Music from the Vault. Further, In the event that Subscriber receives any claim that its access to or use of Music violates the rights of any person, it shall immediately give written notice thereof to Pepper and provide Pepper with the details of its response thereto.
9. Indemnification by Subscriber. The Subscriber shall indemnify, defend and hold Pepper, its directors, officers, employees and agents harmless against all claims, liabilities, losses, damages, costs and expenses (including legal fees) resulting from or arising in connection with any claim based, in whole or part, upon conduct by the Subscriber and/or its Director and/or any of its then-current or past Members which conduct would constitute a violation of any License or any other provision of this Agreement or otherwise violate any law, regulation or rule. In the event that any such claim is asserted, Pepper shall immediately give written notice thereof to Subscriber and permit Subscriber to defend such claim, at Subscriber’s sole cost and expense, but Subscriber shall not settle such claim without the prior, written consent of Pepper.
10. Ownership of Intellectual Property. Pepper shall retain, and Subscriber agrees that Pepper shall retain, all intellectual property rights, title, and interest in and to the Service (and to all related software and documentation) and any and all new releases, upgrades, revisions, modifications and derivatives thereof. Pepper shall provide access to and use of the Service only on an outsourced basis via the Internet.
11. Intellectual Property Indemnity. Pepper shall indemnify, defend and hold Subscriber harmless against all claims, liabilities, losses, damages, costs and expenses (including legal fees) resulting from or arising in connection with any actual or claimed infringement by the Service of any U.S. patent, copyright or trademark. In the event that such claim is asserted, Subscriber shall immediately give written notice thereof to Pepper and permit Pepper to defend and settle such claim in its sole discretion. Pepper shall not be liable for any violation or infringement related to Music or Subscriber’s Limited Rights therein or thereto.
12. Disclaimer. THE SERVICE IS PROVIDED “AS IS” AND “AS-AVAILABLE.” PEPPER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. MORE PARTICULARLY, PEPPER DOES WARRANT THAT THE SERVICE WILL BE OFFERED WITHOUT DEFECT OR INTERRUPTION.
13. Limitation of Liability. EXCEPT FOR PEPPER’S INDEMNIFICATION SET FORTH IN SECTION 11 OF THIS AGREEMENT, IN NO EVENT SHALL PEPPER BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST OR DAMAGED FILES OR DATA, LOST PROFITS, LOST SAVINGS, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE. PEPPER’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF LEGAL THEORY (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE SUM OF FEES PAID BY SUBSCRIBER OVER THE IMMEDIATELY PRECEDING 12 MONTHS FOR THE SPECIFIC SERVICE GIVING RISE TO THE LIABILITY. THE LIMITATIONS OF LIABILITY INCLUDED IN THIS SECTION 13 ARE FUNDAMENTAL TO THIS AGREEMENT AND HAVE BEEN REVIEWED AND BARGAINED BY THE PARTIES, AND NEITHER PARTY WOULD BE WILLING TO ENTER INTO THIS AGREEMENT OR THE BUSINESS RELATIONSHIP CONTEMPLATED HEREBY, UNLESS SUCH LIMITATIONS ARE GIVEN EFFECT.
15. Survival. Sections 7 through 13 and 16 through 17 shall survive the termination or expiration of this Agreement.
16. Governing Law. This Agreement shall be governed by, and construed and interpreted according to, the substantive laws of the Commonwealth of Pennsylvania. Subscriber agrees to submit to the exclusive jurisdiction of the United States District Court for the Eastern District of Pennsylvania, or if such Court does not take jurisdiction, to the courts of the Commonwealth of Pennsylvania, for any actions, suits or proceedings arising out of or relating to this Agreement. Each party waives the right to a jury trial with respect to any action or claim arising out of or relating to this Agreement and waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement in such courts.