SUBSCRIPTION SERVICES AGREEMENT (SSA) TERMS AND CONDITIONS
Last Updated: 07/23/2020
Terms of Service: These Terms and Conditions are incorporated by reference into Subscriptions for the products and services offered to Customer by Striv360. When executed by a Customer and accepted by Striv360, each such Subscription, together with these Terms and Conditions, constitutes a binding agreement between Striv360 and the Customer identified in the SSA (the “Agreement”). Customer’s use of any Striv360 product or service listed on the SSA constitutes Customer’s agreement to be bound by such Agreement, including these terms. In the event of any conflict between these Terms and Conditions and the SSA, the provision in the SSA will govern. These Terms and Conditions are subject to change by Striv360 as described in Section 12 below.
Agreement Language Definitions: As used within this document, the following terms have the meanings set forth below. Other capitalized terms used herein may be defined elsewhere in these Terms and Conditions or in the SSA.
“Application” means Striv360 software system used to verify and record Customer visitor and staff sign-in data, and otherwise enable the services.
“Customer” means one or more facilities or offices operated by Customer.
“Documentation” means all user guides, FAQs, manuals, specifications, tutorials, or similar items provided by Striv360, in written or electronic form only, as the same may be updated by Striv360 from time to time.
“Subscription” means one or more Subscriptions for the services and related equipment.
“Visitor” means a visitor of the Customer, other than a Vendor.
“Services” means the services provided by Striv360 to Customer pursuant to Customer’s monthly service fee, including (i) the Application used to track entry of staff, outside service providers and other visitors, and to provide such other services as may be added to the Application by Striv360; (ii) an online Customer online dashboard offering enhanced data reporting tools and other services to the Customer, such as social media publication, health screening and surveys; and (iv) technical support and any online or live training related to Customer’s use of the Application.
“Term” means the initial term of this Agreement and any renewal or extension thereof.
“Vendor” means a person having a business need to access a Customer and employed or contracted by, or as a vendor or service provider to Customer.
Term of Agreement: The term of this Agreement is monthly and begins on acceptance of the Contract with Striv360. At the end of the initial term, this Agreement will automatically renew at the same pricing for an additional period of time equal to such initial service period, unless (a) Customer notifies Striv360 at least sixty (30) days prior to such date (or whatever other notice period is set forth in the SSA) that it is electing not to renew, or (b) unless Striv360 shall notify Customer in writing of any change in pricing pursuant to renewal of the SSA and Customer shall elect in writing within thirty (30) days thereafter not to renew the term hereunder.
Internet Access: Customer is responsible for procuring and maintaining the network connections that connect the Customer network to the Service. Striv360 is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the internet) which are not owned or operated by Striv360. Striv360 assumes no responsibility for the reliability or performance of any connections respective to WiFi or internet.
Equipment and Warranty Upon payment of the kiosk sales price as set forth in the SSA, Striv360 will provide Customer with the kiosk equipment designated in the SSA. If Customer’s SSA provides for payment over time for the kiosk equipment, then Customer will not own such equipment until paid for in full. All kiosk equipment comes with a two year manufacturer’s limited warranty. Throughout the term of this Agreement, so long as Customer is not in breach of its obligation to pay the monthly fee under this Agreement, Striv360 will assist Customer with the repair or replacement of any equipment that fails to operate in accordance with the Documentation pursuant to the terms of the manufacturer’s warranty. Notwithstanding the foregoing, Customer may be charged for any repair or replacement due to (a) theft or loss from a Customer, (b) Customer’s misuse, alteration or attempted modification, or (c) the negligence of Customer or any Customer staff. This section sets forth Customer’s sole and exclusive remedy with respect to the kiosk equipment provided by Striv360.
Software Application Services and Limited Warranty Throughout the Term of the Agreement, Striv360 will host, manage and operate the Application in conformance with the Documentation. Striv360 will update the functionality and user interface of the Application from time to time in its sole discretion and in accordance with the SSA as part of its ongoing mission to improve the service and Customers use of the service. Customer shall also have access to Striv360’s Customer online dashboard data service (the “online dashboard”). Customer will only authorize use of the Application or online dashboard by those of its personnel who have been properly trained and assigned login credentials. Customer will promptly notify Striv360 if it becomes aware of any actual or attempted use by unauthorized persons. In the event of any unplanned Application downtime or failure to operate in accordance with the Documentation due to factors within Striv360’s reasonable control, upon request, Striv360 will provide Customer with a credit of any monthly fees paid for the month within which had said downtime. This section sets forth Customer’s sole and exclusive remedy with respect to the Application and services.
Fees and Payment Customer agrees to pay Striv360 the amounts set forth in the SSA throughout the Term. Fees for equipment are due upon execution of the SSA, and equipment will not be shipped and title will not pass until such payment is received, unless otherwise agreed to between Striv360 and Customer. Monthly fees will be due once per month, unless otherwise agreed to in the SSA. Customer hereby consents to Striv360 to obtain such payment by ACH, Check, or credit card in accordance with instructions provided by Customer, if any. If any such payment is rejected, Customer will remain responsible for all payments due hereunder as well as any expenses incurred to collect late payments.
Intellectual Property Rights: Customer agrees that all rights, title and interest in and to all intellectual property rights in the Service and all modifications, extensions, customizations, scripts or other derivative works of the Service provided or developed by Striv360, LLC are owned exclusively by Striv360 or its licensors. Except as provided in this Agreement, the rights granted to Customer do not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. In addition, Striv360 shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including users, relating to the operation of the Service. Any rights not expressly granted herein are reserved by Striv360. Striv360 service marks, logos and product and service names are marks of Striv360 respectively (the "Striv360 Marks"). Customer agrees not to display or use the Striv360 Marks in any manner without Striv360's express prior written permission. The trademarks, logos and service marks of Third Party Application providers ("Third Party Marks") are the property of such third parties. Customer is not permitted to use these Third Party Marks without the prior written consent of such third party which may own the Third Party Marks. Customer acknowledges that de-identified patient data as de-identified in accordance with the HIPAA regulations may be used by Striv360 to compile other data, tests, business purposes, and studies and that all such shall be the property of Striv360. Customer will be able to access and export all data without masking of identity.
Confidentiality: During the Term, each party may obtain access to information of the other that is of a confidential or proprietary nature. Such information is collectively referred to as “Confidential Information.” A party may not use for its own benefit Confidential Information of the other party except as expressly contemplated by this Agreement, and shall not disclose it to any third party without the other party’s prior written consent. Notwithstanding the foregoing, disclosure is permitted to the extent required by law or court order, provided the party subject to such law or order first gives reasonable notice to the other party (unless prohibited by law or court order) and, if requested, provides reasonable assistance in obtaining a protective order or limiting the scope of such disclosure. Confidential Information does not include information (a) that a party independently develops (without use of any other Confidential Information of the other party), (b) that was rightfully given to such party by a third party without any conflicting obligation of confidentiality, or (c) that becomes public through no fault of the party in receipt of the other’s Confidential Information.
Striv360 agrees to indemnify, defend and hold harmless Customer, its successors and assigns and each of their respective directors, officers, employees and agents from any and all claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) (collectively “Losses”) incurred by such persons as a result of any breach by Striv360 of its obligations under this Agreement.
Customer agrees to indemnify, defend and hold harmless Striv360, its successors and assigns and each of their respective directors, officers, employees and agents, against any and all Losses arising out of or related to a claim by any third party, including Customer staff, Visitor, Vendors, or any other person who was present at a Customer alleging (i) any harm in connection with Customer’s use of the services for visitor validation, health screening or credentialing or alleging a failure by Striv360 to adequately protect against such harm, (ii) any negligent act or willful misconduct by Customer or its employees or agents, or (iii) any breach of this Agreement by Customer.
Disclaimer and Limitation of Liability Disclaimer:
THE SERVICES PROVIDED BY Striv360 ARE NOT A SUBSTITUTE FOR ANY SECURITY MEASURES OR DUE DILIGENCE WITH RESPECT TO CUSTOMER VISITORS OR FOR IMPLEMENTATION OF OTHER APPROPRIATE SECURITY MEASURES FOR INDIVIDUALS ENTERING CUSTOMER’S FACILITIES.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, (I) Striv360 MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, BY STATUTE, COURSE OF DEALING OR OTHERWISE, REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE HEREBY DISCLAIMED, AND (II) EQUIPMENT AND SERVICES ARE PROVIDED “AS IS” AND Striv360 MAKES NO WARRANTY THAT THE SERVICES OR EQUIPMENT WILL FUNCTION AS INTENDED OR THAT THEY WILL BE AVAILABLE OR FREE FROM BUGS OR OTHERWISE MEET CUSTOMER’S NEEDS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR ITS INDEMNITY OBLIGATION AND THE LIMITED WARRANTIES PROVIDED HEREIN, IN NO EVENT WILL Striv360 BE LIABLE TO CUSTOMER WITH REGARD TO ANY MATTER ARISING OUT OF THE AGREEMENT FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL, INCLUDING LOST PROFITS OR BUSINESS INTERRUPTION, UNDER CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF Striv360 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS, AND EVEN IF A LIMITED WARRANTY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE. IN THE EVENT ANY PORTION OF THE FOREGOING IS DEEMED UNENFORCEABLE, THE MAXIMUM LIABILITY OF Striv360 TO CUSTOMER HEREUNDER SHALL BE AN AMOUNT EQUAL TO THE FEES PAID TO Striv360 BY CUSTOMER DURING THE 12 MONTH PERIOD PRECEDING THE DATE OF THE EARLIEST EVENT GIVING RISE TO CUSTOMER’S CLAIM.
Striv360 TAKES NO RESPONSIBILITY NOR LIABILITY FOR BODILY INJURY OR PROPERTY DAMAGE RELEVANT TO THE STRIV360 KIOSK.
Amendment to Terms: Except as otherwise set forth herein, no change to the terms set forth in the SSA will be effective unless signed by both parties. Striv360 reserves the right to update and revise these Terms and Conditions from time to time. In such event, it will provide Customer at least thirty (30) days’ prior notice (which may be electronic or written). Unless Customer objects to such change, it shall be effective as of the date provided in the notice. If Customer objects to such change, it must provide Striv360 with a written objection at least ten (10) days prior to the effective change date. Striv360 shall have ten (10) days from receipt of an objection to provide Customer written notice that, as to such Customer only, the change is rescinded. If Striv360 does not provide such notice, Customer shall be entitled, during the 30-day period following the effective date of the change, to terminate this agreement without penalty. If it does not terminate during such period, the change shall be deemed agreed to and applicable to Customer.
General Provisions: This Agreement shall ensure to benefit and bind the parties hereto; their successors and assigns, but Customer may not assign this Agreement without written consent of Striv360. Striv360 may assign this Agreement so long as the assignee agrees to satisfy the obligations of Striv360 under the Agreement. There are no third-party beneficiaries to this Agreement. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although Striv360 reserves the right to list Customer’s name and logo as a user and reference for use of the Service. This Agreement, including all exhibits and/or Estimate/Order Forms, shall constitute the entire understanding between Customer and Striv360 and is intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, RFP's and/or agreements between the parties. There are no other verbal agreements, representations, warranties undertakings or other agreements between the parties. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Customer in connection to this Agreement be deemed to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Striv360 to object to such terms, provisions, or conditions. The Agreement shall not be modified or amended, except as expressly set forth herein, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed Estimate/Order Form. This Agreement shall be governed in accordance with the laws of the State of Ohio and any controlling U.S. federal law. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Service) shall be subject to the exclusive jurisdiction of the state and federal courts located in Ohio. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance, or the like, the prevailing party shall be awarded reasonable attorneys' fees and/or costs. Customer shall compensate Striv360 (including reimbursement of costs) for responding to any request from a third party for records relating to Customer or a User's use of the Service. Such requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the User permitting the disclosure. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach. Neither party shall be liable for any loss or delay (including failure to meet the service level commitment) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage (other than those involving Striv360 employees), internet service provider failures or delays, civil unrest, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Service date shall be extended to the extent of any delay resulting from any force majeure event. Sections 1.2, 7 and 8 of this Agreement shall survive the termination or expiration of this Agreement. This Agreement may be executed in counterparts and/or by facsimile or electronic signature and if so executed shall be equally binding as an original copy of this Agreement executed in ink by both parties.