Spoak Decor, Inc.
MASTER SUBSCRIPTION AGREEMENT
Last Updated Date: April 1st, 2020
This Master Subscription Agreement (this “Agreement”) is between Spoak Decor, Inc., a Delaware corporation (“Spoak”) and Decorator (as defined below).
By accepting this Agreement, either by clicking a box indicating your acceptance, by agreeing to or executing an Order Form, by using (or making any payment for) the Spoak Platform, or by otherwise indicating your acceptance of this Agreement: (1) if you are accepting this Agreement on behalf of an organization, company, or other legal entity for which you act, you represent that you have the authority to bind such entity to this Agreement; or (2) if you are accepting this Agreement in your personal capacity, you agree to be bound yourself (you, or the entity you represent (if applicable), the “Decorator”). If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Spoak Platform.
The parties agree as follows:
- “Applicable Law” means all international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements applicable to the Spoak Platform, or either party’s performance under this Agreement.
- “Client” means any Spoak customer who is using the Spoak Platform for personal interior decoration needs. The relationship between Client and Spoak is governed by a separate agreement.
- “Confidential Information” means information that either party (“Discloser”) discloses to the other party (“Recipient”) under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. “Confidential Information” does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a third party without confidentiality obligations; or (3) becomes public through no fault of Recipient. Spoak’s Confidential Information includes non-public information regarding features, functionality, and performance of the Spoak Platform; Documentation; and Usage Data. Decorator’s Confidential Information includes the Decorator Data.
- “Decorator Data” means design materials, content, drafts, or deliverables created and uploaded by Decorator to the Spoak Platform. “Decorator Data” does not include Usage Data.
- “Documentation” means Spoak-provided user documentation relating to the Spoak Platform (e.g., user manuals and online help files).
- “Intellectual Property Rights” means all patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights (registered or unregistered) throughout the world, together with all applications for any of the foregoing.
- “Order Form” means an ordering document or online order entered into by the parties specifying the Services to be provided under this Agreement.
- “Spoak Platform” means Spoak’s software-as-a-service platform and applications (including any updates, enhancements, or improvements) that enable Decorators to design, learn, connect, and grow their business.
- “Spoak Policies” means any policies or standards posted by Spoak in the Spoak Platform or otherwise made available to Decorator, as may be changed from time to time in Spoak’s sole discretion.
- “Usage Data” means data relating to Decorator’s use of the Spoak Platform that is aggregated in such a way that it is not associated with Decorator.
2. Spoak Platform.
- Order Forms. Each Order Form is subject to, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and an Order Form, this Agreement will control unless the Order Form states that a specific provision of this Agreement will be superseded by a specific provision of the Order Form.
- Access to the Spoak Platform. Subject to Decorator’s payment of all fees and compliance with this Agreement, Spoak grants to Decorator a worldwide, non-exclusive, non-transferable, non-sublicenseable right during the Term to use the Spoak Platform, solely in connection with: (1) servicing Clients for Decorator’s internal business operations; and (2) for Decorator’s personal use; in each case, in accordance with any limitations described in the applicable Order Form.
- Documentation. Subject to Decorator’s payment of all fees and compliance with this Agreement, Spoak grants to Decorator a worldwide, non-exclusive, non-transferable non-sublicenseable license during the Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Decorator’s authorized use of the Spoak Platform.
- Support. Subject to Decorator’s payment of all fees and compliance with this Agreement, Spoak will use commercially reasonable efforts during the Term to provide technical support to Decorator via email, with the exclusion of U.S. federal holidays (“Support Hours”). Decorator may initiate a helpdesk ticket during Support Hours by emailing firstname.lastname@example.org.
- Spoak-Verified Decorators. Spoak may designate certain Decorators as “Verified” or “Premium” (“Spoak-Verified Decorators”). Spoak-Verified Decorators may receive extra benefits offered by Spoak from time to time. To qualify as a Spoak-Verified Decorator, Decorator must: (1) have a Spoak Platform Decorator account in good standing; (2) agree to any Spoak Policies that Spoak designates as applicable to Spoak-Verified Decorators; and (3) apply for and receive verification from Spoak. Spoak may revoke a Spoak-Verified Decorator designation if the Decorator fails to comply with the Spoak Policies. Spoak may change Spoak-Verified Decorator requirements at any time in Spoak’s sole discretion.
- Subcontractors. Spoak may use subcontractors or other third parties to perform its obligations under this Agreement, but Spoak will remain responsible for all such obligations.
3. Restrictions and Responsibilities.
- Use Restrictions. Except as expressly permitted in this Agreement, Decorator will not, and will not permit or authorize third parties to: (1) rent, lease, or otherwise permit third parties to use the Spoak Platform or Documentation; (2) use the Spoak Platform or Documentation to provide services to third parties other than Clients (e.g., as a service bureau); (3) use Spoak Platform or Documentation in any way that would violate this Agreement or any limitations described in an Order Form; (4) circumvent or disable any security or other technological features of the Spoak Platform; (5) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Spoak Platform; (6) modify, translate, or create derivative works based on the Spoak Platform or Documentation; (7) remove any proprietary notices or labels from the Spoak Platform or Documentation; or (8) use the Spoak Platform in a manner that violates or attempts to circumvent Applicable Law. This Section 3.A will apply solely to the extent permitted by Applicable Law.
- Accounts. Decorator is responsible and liable for all of its actions and inactions on the Spoak Platform, and for any actions or inactions by any third party that Decorator permits to access or use the Spoak Platform. Decorator is responsible for maintaining control over Decorator’s account, including the confidentiality of any login credentials, and is responsible for all activities that occur on or through Decorator’s account.
4. Optional Third-Party Plugins and Spoak Platform.
- Third-Party Services. Spoak and third parties may make available third-party products or services, including plugins, mobile applications, integrations, and related services (“Third-Party Services”) that Decorator may elect to purchase or use. Any use by Decorator of such Third-Party Services and any exchange of data between Decorator and any Third-Party Service or Third-Party Service provider is solely between Decorator and the applicable Third-Party Service provider. Spoak does not warrant or provide support for Third-Party Services, whether or not they are designated by Spoak as “recommended,” “certified,” or otherwise. Spoak is not responsible for any violations of Applicable Law relating to Third-Party Services, or arising from Decorator’s use of Third-Party Services.
- Interoperation with the Spoak Platform. If Decorator uses any Third-Party Services with the Spoak Platform, Decorator grants Spoak permission to allow the Third-Party Service and its provider to access Decorator Data as required for the interoperation of that Third-Party Service with the Spoak Platform. Spoak is not responsible for any disclosure, modification, or deletion of Decorator Data resulting from access by such Third-Party Service or its provider. Decorator is responsible for negotiating any limits on the use of Decorator Data by the Third-Party Services directly with the Third-Party Service provider.
- No Guarantee. Spoak does not guarantee the continued availability of any Third-Party Services (or any integration with Third-Party Services or related Spoak Platform features), and if such Third-Party Services or related features are discontinued, Decorator will not be entitled to any refund, credit, or other compensation.
- Spoak IP. Spoak and its licensors own the Spoak Platform, Documentation, and Usage Data, including all Intellectual Property Rights (the “Spoak IP”). The Spoak IP is protected by copyright law and other Applicable Law. No ownership rights in the Spoak IP are transferred to Decorator by this Agreement. Decorator does not have any rights in or to the Spoak IP except for the limited express rights granted in this Agreement.
- Decorator Data. Decorator and its licensors own the Decorator Data, including all Intellectual Property Rights. No ownership rights in the Decorator Data are transferred to Spoak by this Agreement. Spoak does not have any rights to the Decorator Data except for the limited express rights granted in this Agreement.
- Feedback. If Decorator gives Spoak feedback, comments, or suggestions concerning the Spoak Platform (collectively, “Feedback”), Decorator hereby assigns to Spoak all right, title, and interest in and to the Feedback, and Spoak is free to use the Feedback without payment, attribution, or restriction.
- License. Decorator hereby grants Spoak a worldwide, non-exclusive, revocable (upon Decorator’s request), perpetual, royalty-free, fully-paid, sublicenseable license to host, store, transfer, display, perform, reproduce, modify, create derivative works of, and distribute Decorator Data, in any media or distribution methods now known or later developed. If Decorator requests removal of any Decorator Data, Spoak will remove the Decorator Data as soon as reasonably practicable.
- Usage Data. Spoak may collect and analyze Usage Data and other information relating to the provision, use, and performance of various aspects of the Spoak Platform and related systems and technologies (including information provided by third-party analytical tools). Spoak may analyze, copy, process, collect, use, disclose, and reproduce Usage Data for any purpose, including for the purposes of: (1) complying with a regulatory inquiry or judicial action of a governmental body; and (2) improving the Spoak Platform and developing new products, services, features, and functionality.
7. Confidentiality. Each party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information, and will not use (except as expressly permitted in this Agreement) or divulge to any third party any Confidential Information except to those employees and representatives of Recipient who have a need to know the Confidential Information to enable Recipient to perform its obligations under this Agreement. Recipient is responsible and liable for its employees’ and representatives’ compliance with this Section 7, as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information five years after the disclosure thereof (or, with respect to trade secrets, for so long as such Confidential Information constitutes a trade secret under Applicable Law), or any Confidential Information that is required to be disclosed by Applicable Law.
8. Fees and Payment.
- Fees and Payment.
1. Decorator will pay Spoak all fees described in all Order Forms in accordance with the terms therein (the “Fees”). If Decorator believes that Spoak has billed Decorator incorrectly, Decorator must contact Spoak no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit.
2. Spoak may bill Decorator through an invoice, in which case, unless otherwise specified in an Order Form, full payment for invoices issued in a given month is due 30 days after the date of the applicable invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by Applicable Law, whichever is lower, plus all expenses of collection, and may result in immediate termination of access to the Spoak Platform. If Spoak provides you the option to activate recurring automatic payments for recurring fees, you will have an opportunity to review the fees that you will be charged before you accept them. If you activate or update recurring payments through the Spoak Platform, you authorize Spoak or its third-party service providers to periodically charge, until cancellation, all accrued sums. Recurring subscriptions automatically renew unless they are cancelled via a method described in the Spoak Platform. All amounts paid under this Agreement will be paid in U.S. Dollars.
- Taxes. Other than federal and state net income taxes imposed on Spoak, Decorator will bear all taxes, duties, and other governmental charges relating to the Spoak Platform.
9. Term and Termination.
- Term. The term of this Agreement will commence on the date Decorator accepts this Agreement or the first Order Form, and will continue until terminated in accordance with this Agreement (the “Term”). Upon expiration of an Order Form the term of the Order Form will automatically renew for a term equivalent to the initial Order Form term, unless otherwise specified in an Order Form or if either party notifies the other in writing of its desire to terminate the applicable Order Form at least 30 days before the expiration of the then-current Order Form term.
- Termination for Convenience. Subject to the payment obligations described in Section 9.E (Post-Termination Obligations), either party may terminate this Agreement or any Order Form for any reason upon 30 days’ prior written notice to the other party.
- Termination for Breach or Insolvency. Either party may terminate this Agreement or any Order Form, effective upon written notice to the other party, if the other party materially breaches this Agreement (or the Order Form) and such breach is incapable of cure, or (if such breach capable of cure) the breaching party does not cure such breach within 30 days of receiving notice of it. Spoak may terminate or suspend this Agreement or any part of it immediately upon written notice to Decorator without a cure period if Decorator breaches any of the terms of this Agreement relating to Spoak’s Intellectual Property Rights or Spoak’s Confidential Information. Either party may terminate this Agreement, effective immediately upon written notice, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
- Effect of Termination. Termination of this Agreement will automatically terminate all active Order Forms, but termination of a single Order Form will not result in termination of this Agreement or any other Order Forms. Upon the termination of this Agreement or any Order Form, all rights and licenses granted by Spoak to Decorator under this Agreement or the applicable Order Form will terminate. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.
- Post-Termination Obligations. Upon any termination of this Agreement or any Order Form, at Decorator’s request, Spoak will delete any requested Decorator Data. If Decorator terminates this Agreement for material breach or if Spoak terminates this Agreement under Section 9.B (Termination for Convenience), Decorator will pay a pro rata amount of the Fees for any terminated access up to and including the last day on which the Spoak Platform is provided. If this Agreement is terminated for any other reason, Spoak will not refund Decorator any Fees paid in advance of such termination, and within 10 days after such termination, Decorator will pay Spoak all remaining Fees owed under the Agreement and all Order Forms. The following sections of this Agreement will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 2.A (Order Forms), 3 (Restrictions and Responsibilities), 5 (Ownership), 6 (Data), 7 (Confidentiality), 8 (Fees and Payment), 9.D (Effect of Termination), 9.E (Post-Termination Obligations), 10 (Warranties and Disclaimer), 11 (Indemnification), 12 (Limitations of Liability), 13 (Arbitration), 15 (Compliance with Applicable Law; Export), and 16 (Miscellaneous).
10. Warranties and Disclaimer.
- Mutual Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and (3) the execution, delivery, and performance of this Agreement by the executing party do not violate the laws of any jurisdiction or the terms of any other agreement to which it is a party or by which it is otherwise bound.
- Spoak Warranties. Spoak represents and warrants to Decorator that Spoak will provide access to the Spoak Platform in a good and workmanlike manner in accordance with industry standards.
- Decorator Warranties. Decorator represents and warrants to Spoak that: (1) Decorator has the necessary rights to authorize Spoak to use the Decorator Data in accordance with this Agreement, and such use by Spoak of Decorator Data does not and will not infringe any third-party right, including any Intellectual Property Right; and, (2) Decorator will use the Spoak Platform in compliance with the Spoak Policies and Applicable Law.
- Disclaimer. Except for the limited warranties described in this Section 10 (Warranties and Disclaimer), Spoak makes no other express or implied warranties with respect to the Spoak Platform, Documentation, Usage Data, or otherwise, and specifically disclaims all implied and statutory warranties, including the implied warranties of non-infringement of third-party rights, merchantability, satisfactory quality, accuracy, title, and fitness for a particular purpose, and any warranties arising from course of dealing, usage, or trade practice. The Spoak Platform and Documentation are provided “as is.” Spoak does not warrant that the Spoak Platform or Documentation will satisfy Decorator’s requirements, are without defect or error, or that the operation of the Spoak Platform will be uninterrupted. Some jurisdictions do not allow the exclusion or limitation of warranties, so the above limitation or exclusion may not apply to Decorator.
- Defense. At Spoak’s option and request, Decorator will defend Spoak from any actual or threatened third-party claim, proceeding, or suit arising out of or based on Decorator’s breach of Section 10 (Warranties and Disclaimer) (a “Claim”). If Spoak requests Decorator to defend it from any Claim, Spoak will: (1) give Decorator prompt written notice of the Claim; (2) grant Decorator full and complete control over the defense and settlement of the Claim; (3) provide assistance in connection with the defense and settlement of the Claim as Decorator may reasonably request; and (4) comply with any settlement or court order made in connection with the Claim. Notwithstanding the previous sentence, Decorator will not enter into any settlement that involves an admission of guilt or liability of Spoak without Spoak’s prior written consent. Spoak may participate in the defense of a Claim at its own expense and with counsel of its own choosing.
- Indemnification. Decorator will indemnify Spoak from and pay: (1) all damages, costs, and attorneys’ fees finally awarded against Spoak in any Claim; (2) all out-of-pocket costs (including attorneys’ fees) reasonably incurred by Spoak in connection with the defense of a Claim (other than attorneys’ fees and costs incurred without Decorator’s consent after Decorator has accepted defense of the Claim); and (3) all amounts that Decorator agrees to pay to any third party to settle any Claim.
12. Limitations of Liability.
- Exclusion of Damages. Neither Spoak nor its suppliers, officers, affiliates, representatives, contractors, or employees will be liable to Decorator for any consequential, incidental, special, or exemplary damages arising out of or related to this Agreement, including lost profits, loss of business, or loss of data, even if Spoak is apprised of the likelihood of such damages occurring.
- Damages Cap. Spoak’s total liability of all kinds arising out of or related to this Agreement (including warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, will not exceed the total amount paid by Decorator to Spoak during the six months immediately preceding the claim (determined as of the date of any final judgment in an action).
- Basis of the Bargain. 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 Spoak to Decorator 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 12 (Limitations of Liability) will apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.
- Applicability. Some jurisdictions do not allow the exclusion or limitation of damages. This Section 12 (Limitations of Liability) will apply to Decorator solely to the extent permitted by Applicable Law.
13. Arbitration. Any claim, dispute, or controversy between the parties arising out of or relating to this Agreement which cannot be satisfactorily settled by the parties will be finally and exclusively settled by binding arbitration (“Arbitration”) upon the written request of either party. The Arbitration will be administered under the American Arbitration Association’s Commercial Dispute Resolution Procedures in force when the notice of arbitration is submitted (the “Rules”). The Arbitration will be conducted by one arbitrator selected in accordance with the Rules. The seat of the Arbitration will be in San Francisco County, California. The Arbitration will be conducted in English. The Arbitration award will be final and binding upon the parties, and judgment upon such award may be entered in any court having jurisdiction. The Arbitration proceedings and any award will be each party’s Confidential Information. The arbitrator’s award may include compensatory damages against either party but the arbitrator will not be authorized to and will not award punitive damages against either party. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (A) seek injunctive relief in a court of law; or (B) to file suit in a court of law to address an intellectual property infringement claim.
14. Publicity. Unless Decorator requests otherwise, Spoak may publicly list Decorator as a Spoak decorator and use Decorator’s trademark, trade name, and logo, if any, for marketing or promotional purposes and in other communication with existing or potential Clients, decorators, resellers, or investors.
15. Compliance with Applicable Law; Export. Each party will comply with all Applicable Law in connection with exercising its rights or performing its obligations under this Agreement, including applicable export laws. As defined in FAR section 2.101, the Spoak Platform and Documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.
- Governing Law. This Agreement is governed by Delaware law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Subject to Section 13 (Arbitration), all claims arising under this Agreement will be litigated exclusively in the federal or state courts of New Castle County, Delaware. The parties submit to the jurisdiction in those courts. In any proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
- Non-Solicitation. During the Term and for three years thereafter, Decorator will not directly or indirectly solicit for employment or otherwise induce, influence, or encourage any employee or contractor of Spoak to terminate their engagement with Spoak. This Section 16.B will apply solely to the extent permitted by Applicable Law.
- Injunctive Relief. If either party breaches Sections 5 (Ownership) or 7 (Confidentiality), the other party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching party. Accordingly, either party may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.
- Further Assurances. Each party will execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in this Agreement.
- Assignment. Decorator may not assign its rights or delegate its performance under this Agreement without Spoak’s prior written consent, and any attempt to do so is void. Spoak may assign its rights or delegate its performance under this Agreement without Decorator’s consent. This Agreement is binding upon and inures to the benefit of the parties’ permitted successors and assigns.
- Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.
- No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
- Entire Agreement. This Agreement (including any Exhibits and Order Forms) constitutes the entire agreement and supersedes any other agreement of the parties relating to its subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement the terms of this Agreement.
- Amendment. This Agreement may only be amended in a writing signed by both parties and stating that it is amending this Agreement.
- Nature of Rights. The licenses granted under this Agreement are rights in “intellectual property” within the scope of Section 101 (or its successors) of the United States Bankruptcy Code (the “Code”). Each party as licensee will have and may fully exercise all rights available to a licensee under the Code, including under Section 365(n) or its successors.
- Relationship. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the parties.
- No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.
- Notices. All notices under this Agreement must be in writing, and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section. All notices to Spoak will be sent to:
Spoak Decor, Inc.
6355 North Red Tail Road
Jackson, WY 83001
Attn: Hilah Stahl
- Force Majeure. Spoak will not be liable for any delay or failure to perform under this Agreement as a result of any cause or condition beyond Spoak’s reasonable control, so long as Spoak uses reasonable efforts to avoid or remove those causes of delay or non-performance.
- Interpretation. If Spoak provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in this Agreement is for convenience only, and does not define or explain any provision. Any use of the term “including” or variations thereof should be construed as if followed by the phrase “without limitation.”
- Counterparts. This Agreement may be executed in counterparts (which may be exchanged by email). Each counterpart should be considered an original, but all counterparts together should constitute the same Agreement.