Version 1.0 — January 25, 2019
This Master Subscription Agreement (the “Agreement”) is entered into on the Purchase Date between Walter Living B.V. (“Walter”), and the customer (“Customer”) (each a “Party”, and collectively, the “Parties”).
Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
1.a “Authorized Devices” means those mobile, desktop or other devices with which the Walter Application can be accessed and used.
1.b ”Content” means any content, graphic, design, document or material created using the Walter Application by Customer and its Users.
1.c “Documentation” means the technical materials made available by Walter to Customer and/or its Users in hard copy or electronic form describing the use and operation of the Walter Application.
1.d “Walter Application” means the software tools ordered by Customer through our website. The Walter Application includes: (a) Walter’s web based software, and (b) hosted services that augment software features (such as online sharing).
1.e Not applicable
1.f “Reports” means add-on modules third parties create and make available on the Walter Store.
1.g “User” means an employee, contractor or other individual associated with Customer who has been provisioned with access to the Walter Application.
2.a Walter Application. Walter hereby grants Customer a non-exclusive, non-transferable license during the Term (as defined in Section 10.1) to: (a) download, install and use the Walter Application on the number and type of Authorized Devices solely for Customer’s internal business purposes in accordance with the Documentation, and (b) use hosted systems provided to Customer as part of Customer’s Walter Application subscription. The Walter Application is delivered electronically by provision of download links and license keys.
2.b Not Applicable.
2.c Walter Store. Customer’s subscription includes access to the Walter Store, where customers can find Walter Reports to download and install in their Walter Application software. Some customers may have private versions of the Walter Store, where customers can add Walter Reports available only to their Users and/or can restrict access to Walter Reports available on the general Walter Store. Walter treats the contents of private stores as Customer’s Confidential Information as described below.
2.d Provisioning the Walter Application. Walter will provide to Customer the necessary passwords, security protocols, policies, network links or connections (“Access Protocols”) to allow Customer and its Users to access the Walter Application as described herein; no other access to the website or servers from which the Walter Application is delivered is permitted. Customer shall permit Users to access and use the features and functions of the Walter Application through the Access Protocols. Customer may select one or more Users to act as administrators and control, manage and use the Walter Application on Customer’s behalf. Customer shall be responsible for all acts and omissions of its Users.
2.e Software Restrictions. Customer will not, and will not authorize any User to: (a) copy or duplicate the Walter Application; (b) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Walter Application is compiled or interpreted; (c) modify the Walter Application or the Documentation, or create any derivative work from any of the foregoing, except with the prior written consent of Walter; (d) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under Sections 2.1 and 2.2; (e) build a similar or competitive product or service; (f) damage, interfere with or disrupt the integrity, performance or use of the Walter Application; or (g) use the Walter Application for any purposes prohibited by law, including without limitation, the development, design, manufacture or production of nuclear missiles or chemical or biological weapons. Customer will not conceal, remove, obscure or alter (i) any proprietary notice or legend regarding Walter’s proprietary rights in the Walter Application; or (ii) trademarks or logos displayed as part of the Walter Application. Customer will ensure that its use of the Walter Application complies with all applicable laws, statutes, regulations or rules.
2.f Acceptable Use. Customer and its Users shall not: (a) use the Walter Application for uploading and sharing any other content than the Content; (b) use the Walter Application for unlawful purposes or the promotion of illegal activities; (c) use the Walter Application in a way that could be detrimental to the reputation of Walter; (d) upload or share any Content that infringes intellectual property rights of third parties, would violate laws applicable to the Content or would cause Walter to violate applicable law; (e) imply or suggest that the Content is created or endorsed by Walter or Walter’s licensors; (f) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures, including measures that prevent or restrict use or copying of the Content or enforce limitations on the use of the Walter Application or material accessible via the Walter Application; (g) use the Walter Application for any purpose other than to upload and share Content in accordance with this Agreement including, but not limited to, (i) the sale of access to the Walter Application, (ii) the sale of advertising or promotions placed on or within the Content or the Walter Application or (iii) the sale of advertising or promotions on any webpage containing the Content delivered via the Walter Application; (h) impersonate or misrepresent Walter or any third party when making Content available; or (i) interfere with or disrupt Walter’s services, servers or network in any way.
2.g Publicity. During the Term and at any point thereafter, Walter may publicly refer to Customer orally and in writing, including on Walter’s website and sales presentations, as a customer of Walter and may use Customer’s logo for such purposes.
2.h Support. Unless Customer purchases additional support services, Walter shall provide Customer with the following standard support: (a) email support to Users Monday through Friday, 09:00 – 17:00 CET/CEST, Dutch holidays excluded, for problem resolution assistance; (b) commercially reasonable efforts to correct errors in the Walter Application reported to Walter in writing; and (c) at the sole discretion of Walter, the provision of updates, upgrades, enhancements, and any other improvements that Walter makes generally available to subscribers of the Walter Application.
3.a No IP Rights Transfer. Other than the licenses described herein, no intellectual property rights are transferred by either Party to the other pursuant to this Agreement.
3.b What Walter Owns. As between the Parties, Walter shall own all rights, including, but not limited to, all copyright rights, in the Walter Application, including any content or trademarks contained therein or thereon but specifically excluding rights in Walter Reports. Except for the rights expressly granted herein, Customer acquires no rights, title or interest in the Walter Application.
3.c What Customer Owns. As between the Parties, Customer shall own all rights in and Walter disclaims any rights in Customer’s Content.
3.d Walter Reports. Walter Reports are owned by the persons or entities who create them.
4.a Customer and its Users may upload and share Content via the Walter Application. After the Content is successfully uploaded, a link is made available allowing Users to share the Content by sharing the link.
4.b Walter is not responsible or liable for the Content and the consequences of uploading the Content and for sharing the Content by sharing the Link. Walter does not endorse the Content or any advice, suggestion or opinion expressed in the Content.
4.c Although Walter has no obligation to monitor Content, Walter may do so and may remove Content and/or prohibit any use of the Walter Application it believes may be (or alleged to be) in violation of the foregoing.
4.d License to Display Content. Customer grants: (a) Walter a worldwide, non-exclusive, royalty free, transferable license with a right to sub-license to use, reproduce, distribute, display and perform the Content to the extent required for the provision of the Walter Application; and (b) individuals with whom Content is shared via the Walter Application a personal, non-exclusive, royalty free license to access the Content and to use the Content in accordance with the terms of this Agreement. The foregoing license terminates automatically when Content is removed from the Walter Application.
5.a Walter will use procedural, technical, and administrative safeguards designed to ensure the confidentiality, security, integrity, availability, and privacy of Content and other Customer Confidential Information stored in the Walter Application. Walter regularly monitors compliance with these measures. Customer is responsible for reviewing the information made available by Walter relating to data security and making an independent determination as to whether the Walter Application meets Customer’s requirements and legal obligations. Customer acknowledges that Walter’s security measures are subject to technical progress and development and that Walter may update or modify such measures from time to time provided that such updates and modifications do not result in a material decrease of the overall security of the Walter Application during a subscription term.
6.a Confidential Information. Subject to the limitations set forth in Section 11.2, all information disclosed by one party to the other party during the term of this Agreement that is identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure, whether in oral, written, graphic or electronic form, shall be deemed to be “Confidential Information”. The existence and terms of this Agreement are Confidential Information of both parties.
6.b Exceptions. Information will not be considered Confidential Information if the receiving party can establish by documentary evidence that the information is or was: (a) is publicly available or in the public domain at the time of disclosure through no fault of the recipient; (b) rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (c) already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (d) independently developed by the recipient without any use of or by persons who have access to the other Party’s CI; or (e) is approved in writing for release or disclosure by the disclosing Party without restriction.
6.c Nondisclosure. During the course of this relationship, either Party may disclose Confidential Information to the other Party. Each Party agrees that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. Each Party further agrees: (a) to use Confidential Information disclosed by the other Party only for the purposes described herein; and (b) that such Party will not reproduce Confidential Information disclosed by the other Party, except as necessary to carry out its obligations and exercise its rights under this Agreement, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party.
6.d Legally Required Disclosure. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given notice to the other Party (to the extent permitted) and shall have provided such assistance as may be reasonably requested to limit such disclosure.
7.a Payment Terms. Customer will pay to Walter, without offset or deduction, all fees due under this Agreement. All payments will be in U.S. dollars. Unless otherwise specified, all fees shall be due 30 days from the date of Walter’s invoice and all fees are non-cancelable and non-refundable. All amounts will exclude all applicable sales, use, and other taxes.
7.2 Merchant of Record. Our order process is conducted by our online reseller Paddle.com. Paddle.com is the Merchant of Record for all our orders. Paddle provides all customer service inquiries and handles returns.
8.a Authority. Each of Walter and Customer represents and warrants that: it has the full right, power and authority to enter into and fully perform this Agreement; the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; its entry herein does not violate any other agreement by which it is bound; and it is a legal entity in good standing in the jurisdiction of its formation.
8.b Rights to Content. Customer warrants that it has and will continue to have during the Term all necessary licenses, rights, consents, and permissions which are required to enable Walter to use the Content as required to provide the Walter Application.
8.c Disclaimer. To the maximum extent permitted by applicable law, the Walter application and related services are provided “as is,” and Walter disclaims any and all other representations and warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, non-infringement, system integration and/or data accuracy. Walter does not warrant that the Walter application or any other services provided by Walter will meet customer’s requirements or operate uninterrupted or error-free. the Walter application may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Walter is not responsible for any delays, delivery failures, or other damage resulting from such problems. Neither Walter nor its third-party providers shall have any liability for customer’s use of content, Walter Reports, or other materials or information made available through or developed using the Walter application. Walter shall have no responsibility for determining that customer’s proposed use of the Walter application complies with applicable laws in customer’s jurisdiction(s).
9.a Except for a breach by customer of section 2.5: (a) in no event will either party be liable to the other party for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data, or liabilities to third parties arising from any source, even if such party has been advised of the possibility of damages; and (b) the cumulative liability of Walter to customer for all claims arising from this agreement, including, without limitation, any cause of action sounding in contract, tort, or strict liability, will not exceed the fees paid to Walter by customer during the twelve month period prior to the event giving rise to any claim. The foregoing shall not limit customer’s payment obligations. These limitations upon damages and claims are intended to apply without regard to whether other provisions of this agreement have been breached or have proven ineffective.
9.b Basis. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability in this Agreement form an essential basis of the Parties’ agreement and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
10.a By Walter. Walter will defend at its expense any suit brought against Customer by a third party, and will pay any settlement Walter makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Walter Application misappropriated any trade secret recognized under the Uniform Trade Secrets Act or infringes any copyright or trademark issued as of the Effective Date. Notwithstanding the foregoing, Walter shall have no obligation under this section or otherwise with respect to any infringement claim based upon (a) any use of the Walter Application not in accordance with this Agreement; (b) any use of the Walter Application in combination with other products, equipment, software or data not supplied by Walter; (c) any modification of the Walter Application by any person other than Walter or its authorized agents; or (d) Content or Walter Reports. If, due to a claim of infringement, the Walter Application is held by a court of competent jurisdiction to be or is believed by Walter to be infringing, Walter may, at its option and expense: (x) replace or modify the Walter Application to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (y) obtain for Customer a license to continue using the Walter Application, or (z) if neither of the foregoing is commercially practicable, terminate this Agreement and provide Customer a refund of any prepaid, unused fees for the Walter Application. This section states Walter’s entire obligation and liability with respect to any claim of infringement.
10.b By Customer. Customer will defend, indemnify, and hold Walter harmless from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages to the extent resulting from Customer’s breach or alleged breach of its obligations, representations and warranties under this Agreement, or claims that Content or Walter Reports created by or on behalf of Customer infringe the intellectual property rights of any third party.
10.c Process. The foregoing indemnification obligations are subject to the following: (a) the indemnified Party will promptly notify the indemnifying Party of any claim for which indemnification is sought; (b) the indemnifying Party will have control of the defense or settlement; and (c) the indemnified Party will reasonably cooperate with the defense, at the indemnifying Party's expense.
11.a Term. The term of this Agreement will commence on the Effective Date and will continue as long as payment continues. (“Term”).
11.b Termination. Either Party may, at its option, terminate this Agreement in the event the other Party: (a) materially breaches this Agreement and fails to cure such breach (or provide an acceptable plan for curing such breach) within 30 days after receipt by the breaching Party of written notice specifying the breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
11.c Suspension. If Customer fails to pay any undisputed amounts hereunder or, as necessary to protect the security of the Walter Application, Walter will have the right, in addition to any of its other rights or remedies, to immediately suspend access to the Walter Application to Customer and/or any of its User(s), without liability, until such amounts are paid in full or such threat no longer exists, as applicable.
11.d Effects. Upon termination or expiration of this Agreement, Customer will immediately discontinue use of the Walter Application. Sections 3 7.3, 8 10.4, 11 and 12 will survive such termination. Within ten business days following the termination date, Customer shall, at Walter’s option, return to Walter or destroy (and certify to Walter in writing as to such destruction) all copies of the Walter Application and Documentation and any other materials embodying or reflecting the Walter Application and any other Walter Confidential Information. On termination or expiration of this Agreement other than termination by Customer for Walter’s breach, Customer will immediately pay Walter, as liquidated damages, the remaining balance (if any) for the remainder of the subscription term.
12.a Integration. This Agreement is the entire agreement between the Parties related to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings and discussions. You and Walter Living B.V. waive their rights to rescind or annul these Terms. Articles 3:44, 6:228 and 6:265 of the Dutch Civil Code are excluded. This Agreement shall supersede the terms of any purchase order or other business form. If accepted by Walter, Customer’s purchase order shall be binding only as to the following terms: the Walter Application ordered and the appropriately calculated fees due. Other terms shall be void.
12.b Construction; Interpretation. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force. No waiver hereunder will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought.
12.c No Agency Relationship; No Third Party Beneficiaries. Nothing in this Agreement will be construed to create any agency, partnership, or joint venture between the Parties, and neither Party will represent itself as an agent or legal representative of the other Party. To the extent that any third party stipulation is contained in this Agreement, article 6:254 of the Dutch Civil Code is excluded. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns.
12.d Amendment. The Agreement can be amended only by a writing signed by both Parties.
12.e Governing Law; Arbitration. This Agreement will be governed by and interpreted in accordance with Dutch law without regard to international law regulations or principles of law leading to the application of other laws. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any dispute or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof shall be settled by arbitration in accordance with the International Chamber of Commerce (ICC) rules. Such dispute or claim shall be settled by simplified arbitration arranged by ICC in accordance with the rules of arbitration procedure adopted by ICC and in force at the time when such proceedings are commenced. Arbitration shall be conducted in Amsterdam, before one arbitrator appointed in accordance with the ICC Rules. All arbitration shall be conducted in English. The award rendered thereon by the arbitrator shall be final and binding on the Parties thereto, and judgment thereon shall be confidential and may be entered in any court of competent jurisdiction. Nothing in this Section 12.2 shall prevent either Party from applying to a court of competent jurisdiction for equitable or injunctive relief.
12.f Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by any event beyond the control of such Party, provided that such Party uses reasonable efforts to notify the other Party of the cause of such delay and to resume performance as soon as possible.
12.g Notices. All notices, requests, and other communications to the other Party hereunder must be in writing to email@example.com
12.h Assignment. This Agreement may not be assigned by either party without the other party’s prior written consent, whether by operation of law or otherwise, except that either party may assign this Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party. Any other purported assignment shall be void.
12.i Counterparts. This Agreement may be executed and delivered by facsimile or electronic signature and in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.