STRAPI, INC. SUBSCRIPTION AGREEMENT
BY CHECKING “I ACCEPT," YOU AND ANY ENTITY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS STRAPI, INC. SUBSCRIPTION AGREEMENT (“AGREEMENT”) AS OF THE DATE OF CUSTOMER'S FIRST DOWNLOAD OF THE SOFTWARE (AS DEFINED BELOW) (THE "EFFECTIVE DATE"). CUSTOMER’S CONTINUED USE OF THE SOFTWARE PROVIDED BY STRAPI, INC. (OR ONE OF ITS AFFILIATES AND/OR SUBSIDIARIES) (“STRAPI”) ALSO CONSTITUTES ASSENT TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE “CONSENT” BOX AND THE DOWNLOAD AND INSTALLATION PROCESS WILL NOT CONTINUE. YOU REPRESENT THAT YOU HAVE AUTHORITY TO EXECUTE THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION.
This Agreement is the entire agreement of the parties regarding the Software and it includes any and all quotations and/or order forms for the Software (each, an “Order”), any exhibits attached to this Agreement, and all of the other terms and conditions incorporated into this Agreement by reference. This Agreement supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions, and understandings, written or oral, with respect to the Software and all past dealings or industry customs. In the event of a conflict between the terms and conditions of the body of this Agreement and the terms and conditions of any Order, the terms and conditions of the body of this Agreement will govern.
Software. Subject to the terms and conditions of this Agreement, Strapi hereby grants you a limited, non-transferable, non-exclusive license to install and run the Strapi Enterprise Edition software (the “Enterprise Edition”) and Strapi Community Edition software (the “Community Edition” and, collectively with the Enterprise Edition, the “Software”) solely for Customer’s internal business purposes during the Term (as defined below), subject to any applicable restrictions specified in an Order, and solely in accordance with any instructions, specifications, and documentation provided from time to time by Strapi (collectively, “Documentation”). Notwithstanding any terms to the contrary in this Agreement, (a) the Community Edition is solely provided by Strapi pursuant to the terms and conditions of the MIT license (see https://www.mit.edu/~amini/LICENSE.md), (b) the grant set forth in this Section 1 constitutes the “Enterprise Edition License”, and (c) Customer may not exceed the number of projects set forth in any Order.
Fees and Payment Terms.
Fees. Customer will pay Strapi the then-current fees for the Software set forth on the Order (the “Fees”), without any right of set-off or deduction.
Payment Schedule. All payments will be made in accordance with the payment schedule and the method of payment set forth in the Order. Strapi will invoice Customer for Fees on the Effective Date and at the intervals set forth in the Order. Unless otherwise set forth in the Order, all payments will be due within thirty (30) days from the date of invoice. All Fees paid and/or due hereunder (including any prepaid amounts) are non-refundable.
Interest, Taxes, and Additional Terms. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Customer will be responsible for and will pay all sales and similar taxes and all license fees and similar fees levied upon the provision of the Software, excluding only taxes based solely on Strapi’s net income. Notwithstanding any terms to the contrary in this Agreement, Strapi will not be obligated to issue any refunds for any Fees paid.
Definition. “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by Strapi to Customer (or all information (whether in oral, written, or other tangible or intangible form) acquired by Customer), concerning or related to this Agreement or Strapi (whether before, on, or after the Effective Date) that Customer knows or reasonably should know, given the facts and circumstances surrounding the disclosure of the information by Strapi (or acquisition of the information by Customer), is proprietary information of Strapi. Confidential Information of Strapi includes, but is not limited to, the Software. Obligations. The Receiving Party will maintain in confidence the Confidential Information during the term of this Agreement and for the two-year period commencing upon the effective date of termination of this Agreement and will not use such Confidential Information except as expressly permitted in this Agreement. The Receiving Party will use the same degree of care in protecting the Confidential Information as Customer uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by Customer solely for the purpose of carrying out Customer’s obligations under this Agreement. In addition, Customer will only disclose Confidential Information to its directors, officers, and/or employees who have a need to know such Confidential Information in order to perform their duties under this Agreement, and if such directors, officers, employees, and/or contractors have executed a non-disclosure agreement with Customer with terms no less restrictive than the non-disclosure obligations contained in this Section 3.2. Each party agrees that the terms and conditions of this Agreement will be treated as Confidential Information of Strapi and will not be disclosed by Customer to any third party. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments, or other feedback provided by Customer to Strapi with respect to Strapi or the Software (collectively, “Feedback”) will constitute Confidential Information. Further, Strapi will be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights (as defined below) or otherwise. Exceptions. Confidential Information will not include information that (a) is in or enters the public domain without breach of this Agreement through no fault of Customer; (b) Customer can reasonably demonstrate was in its possession prior to first receiving it from Strapi; (c) Customer can demonstrate was developed by Customer independently of, and without use of or reference to, the Confidential Information; or (d) Customer receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, Customer may disclose Confidential Information that is required to be disclosed by law or by a subpoena or order issued by a court of competent jurisdiction (each, a “Court Order”), but solely on the conditions that Customer (i) gives Strapi written notice of the Court Order within 24 hours after receiving it, and (ii) cooperates fully with Strapi before disclosure to provide Strapi with the opportunity to interpose any objections it may have to the disclosure of the information required by the Court Order and seek a protective order or other appropriate relief. In the event of any dispute between the parties as to whether specific information is within one or more of the exceptions set forth in this Section 3.3, Customer will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).
Remedies. Customer acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to Strapi, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, Strapi will be entitled to seek and obtain injunctive relief against any breach or threatened breach by Customer of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
Representations and Warranties. Customer represents and warrants that (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement, (c) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement, and (d) this Agreement is valid, binding, and enforceable against it in accordance with its terms. Further, Customer represents, warrants and covenants that (i) it will comply with all applicable laws, rules, and regulations in connection with its use of the Software hereunder and (ii) any and all information and data used by Customer in connection with the Software or made available to Strapi by Customer (“Customer Data”) has been collected, processed, transferred, used and disclosed in full compliance with all applicable laws, rules, regulations, and binding guidance, and that it has all obtained all necessary authorizations and consents from any data subjects to collect, process, transfer, use, and disclose such Customer Data. Disclaimer. THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS, OR CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. FURTHER, STRAPI DOES NOT REPRESENT OR WARRANT THAT (A) THE ACCESS TO OR USE OF THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (B) THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR OTHERWISE PRODUCE ANY PARTICULAR RESULTS, (C) ERRORS OR DEFECTS WILL BE CORRECTED, PATCHES OR WORKAROUNDS WILL BE PROVIDED, OR STRAPI WILL DETECT ANY BUG IN THE SOFTWARE, (D) THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (E) THIRD-PARTY DISRUPTIONS OR SECURITY BREACHES OF THE SOFTWARE WILL BE PREVENTED.
Indemnification. Customer, at its sole expense, will defend Strapi and its directors, officers, employees, and agents (“Strapi Indemnitees”) from and against any third-party claims, suits, actions, or proceedings and indemnify the Strapi Indemnitees from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest, and disbursements) arising in connection with or relating to (a) Customer’s use of the Software in a manner other than as expressly permitted in this Agreement, (b) any Customer products or services, (c) any negligence or willful misconduct by Customer or a party acting on its behalf, or (d) any alleged or actual breach of Customer’s obligations under this Agreement (including, but not limited to, any alleged or actual breach of any of Customer’s representations or warranties). Limitation of Liability.
Consequential Damages Waiver. STRAPI WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. Liability Cap. STRAPI’S ENTIRE LIABILITY TO CUSTOMER WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO STRAPI. Failure of Essential Purpose and Additional Limitation. MULTIPLE CLAIMS WILL NOT EXPAND THESE LIMITATIONS. THIS SECTION 7 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Term, Termination, and Effect of Termination. Term. This Agreement commences on the Effective Date and, unless earlier terminated as set forth in Section 8.2, continues during the period set forth on the Order. Termination. Either party may terminate this Agreement, for cause, if the other party materially breaches this Agreement and does not remedy such breach within 30 days after its receipt of written notice of such breach. Further, notwithstanding any terms to the contrary in this Agreement, Strapi may suspend Customer’s access to or use of the Software (or any portion thereof) without liability if Strapi reasonably determines that Strapi is required by any applicable law to suspend such access or use. Effect of Termination. Upon any termination or expiration of this Agreement (a) all rights granted to Customer under this Agreement will immediately cease, (b) Customer will immediately pay to Strapi all amounts due and payable up to the effective date of termination of this Agreement, and (c) each party will promptly return to the other party all Confidential Information of such other party then in its possession or destroy all copies of Confidential Information of such other party, at such other party’s sole discretion and direction. Notwithstanding any terms to the contrary in this Agreement, (i) Sections 2, 3, 4, 5, 6, 7, 8.3, 9, 10, 11, and 12 will survive any termination or expiration of this Agreement, and (ii) except as specifically set forth in this Agreement, no refunds will be issued upon any termination or expiration of this Agreement. Additional Rights, Ownership, and Reservation of Rights. As between the parties and subject to the express grants within this Agreement, Strapi owns all right, title, and interest in and to the Software (and any and all modifications to or derivative works of the Software), the Feedback and any and all Intellectual Property Rights embodied in or related to the foregoing. Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by a party to the other party under this Agreement, whether by implication, estoppel, or otherwise, except as expressly set forth in this Agreement. For the purpose of this Agreement, “Intellectual Property Rights” means all patent rights, copyrights, moral rights, trademark rights, trade secret rights, and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
Restrictions. Except as expressly authorized herein, to the maximum extent the following restrictions are permitted by applicable law, Customer will not (and will not permit, assist, or encourage others to) (a) copy or modify the Software, (b) create derivative works of the Software, (c) remove or modify any notice of any patent, copyright, trademark, or other proprietary rights that appear on or in the Software, (d) reverse engineer, decompile, translate, disassemble, or discover the source code of all or any portion of the Software, (e) publicly display all or any part of the Software, (f) distribute, disclose, market, lease, publish, merge, resell, assign, loan, sublicense, rent, or transfer the Software to any third party, (g) use the Software for any dial-up, remote access, interactive, or other on-line or hosted service, or to provide a service bureau, time share, or other services to third parties, (h) merge the Software into another product, (i) disclose the results of any Software performance benchmarks or test results to any third party without Strapi’s prior written consent, (j) use any trademarks, logos, service marks, trade names of Strapi, or any portion thereof, without Strapi’s prior written consent, (k) use the Software, or any portion thereof, in a manner that does not comply with applicable law, regulations, or governmental orders, or (l) use or store the Software on equipment not owned or controlled by Customer. Customer will be liable to Strapi for any act or omission of any employee, contractor, or user of the Software to the same extent that it would have been had it committed such act or omission. Customer will only interface with the Software though supported APIs. Export Controls. Customer may not provide to any person or export or re-export or allow the export or re-export of the Software in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing, Customer acknowledges and agrees that the Software will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Software constitutes Customer’s representation and warranty that Customer is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Software may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any Software and Documentation provided by Strapi 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 the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. General Provisions. Independent Contractors. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner, or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. Each party submits to the exclusive jurisdiction of any state or federal court sitting in California in any litigation arising out of or relating to this Agreement. Publicity. Customer consents to Strapi’s use of Customer’s name and logo on the Strapi website and on Strapi’s promotional and marketing related materials, identifying Customer as a customer of Strapi and describing Customer’s use of the Software. Customer may in writing and at its discretion participate in a case study and related blog post with respect to its use of the Software. Modifications. Notwithstanding any terms to the contrary in this Agreement, Customer acknowledges and agrees that Strapi may modify features of the Software from time to time at Strapi’s sole discretion.
Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned, or delegated by Customer, by operation of law or otherwise, without the prior written consent of Strapi, and any attempted transfer, assignment, or delegation without such consent will be void and without effect. Strapi may freely assign this Agreement or any right or duty under this Agreement. This Agreement will be binding upon and enforceable against any successor or permitted assignee. Amendments and Waivers. No modification, addition, deletion, or waiver of any rights under this Agreement will be binding on a party unless clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
Notices. Any notice or communication required or permitted to be given hereunder will be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified on this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered. Notice is effective on the earlier of 10 days from being deposited for delivery or the date on the confirmed facsimile, confirmed email, or courier receipt.
Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, (a) such invalidity, illegality, or unenforceability will not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction and (b) such provision, in such jurisdiction, will be replaced by a valid, legal, and enforceable provision that best reflects the parties’ intent for such first provision. Audit. Strapi may, by itself or through an independent third party, audit Customer’s use of the Software to verify Customer is in compliance with the terms and conditions of this Agreement. Customer agrees to provide reasonable access to Customer’s facilities and records for purposes of conducting these audits. Counterparts. This Agreement may be executed (a) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument, and (b) by the parties by exchange of signature pages by mail, facsimile, or email (if email, signatures in Adobe PDF or similar format). Force Majeure. Strapi will not be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of any services provided by any service providers used by Strapi, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party (a “Force Majeure Event”).