THESE SUBSCRIPTION TERMS GOVERNS USE OF THE SERVICES (AS DEFINED IN THIS AGREEMENT). THESE SUBSCRIPTION TERMS WILL BE LEGALLY BINDING WHEN YOU CLICK THE “I AGREE” BUTTON BELOW. CAREFULLY READ THIS AGREEMENT BEFORE CLICKING “I AGREE.” YOU REPRESENT THAT YOU HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY (OR OTHER LEGAL ENTITY). IF YOU DO NOT HAVE SUCH AUTHORITY, OR YOU DO NOT AGREE WITH THESE SUBSCRIPTION TERMS, DO NOT CLICK THE “I AGREE” BUTTON.
Subscription Services Agreement
This Subscription Services Agreement (“Agreement”) is entered into by the entity accepting this Agreement (“Customer”) and Fruition Growth LLC (“Fruition”) (each, a “Party”). This Agreement is effective as of the date accepted by Customer (“Effective Date”).
“Affiliate” means any company controlling, controlled by or under common control with a Party, where “control” means ownership, directly or indirectly, of the shares of a company representing fifty percent (50%) or more of the voting rights in such company.
“Cloud Environment” cloud infrastructure environment selected by Fruition.
“Customer Content” means (a) all data submitted by Customer to Fruition for processing in the Subscription Services databases and (b) Customer Confidential Information used to provision the Subscription.
“Documentation” means the support policies set forth at which may be modified from time to time.
“DPA” means the Customer Content Processing Addendum entered into by the Parties, if applicable.
“Order” means the order detailing the Subscriptions ordered, the Subscription Term, and applicable Fees.
“Software” means the Fruition DDEV and Fruition Hosting software.
“Subscription Services” means the hosted web services using the Software provided Fruition and Cloud Environment as described in the Documentation.
“Subscription” means the subscription for Subscription Services acquired by Customer.
- Scope. Fruition will provide the applicable Subscriptions ordered by Customer. The Subscription Services are further described in the Documentation. Customer will comply with the Acceptable Use Policy set forth at https://ddev.com/acceptable-use-policy, as may be updated from time to time. Customer’s use of the Cloud Environment is subject to terms presented to or made available to Customer. Customer agrees to comply with the applicable then-current terms for such Cloud Environment. Fruition has no liability or responsibility for the Cloud Environment, including without limitation, its availability or security. Customer acknowledges and agrees that the Cloud Environments may modify its capabilities, and Fruition may adjust the Subscription Services accordingly.
- 2.1 Fees. Customer will pay the Fees set forth in the Order. All Fees are non-refundable, non-cancelable, and exclusive of applicable taxes. If you choose monthly billing by credit card, you authorize a recurring monthly charge to your credit card based on the applicable fee schedule. Customer will pay Fruition the applicable fees and charges for use of the Subscription Services as described in the applicable fee schedule using Customer’s credit card. For orders placed online, payments will be processed by Fruition’s third-party payment processor. Fruition may increase or add new fees and charges for a Subscription Service by updating the fee schedule set forth at the Order site. In the event that Fruition changes the pricing for the Subscription Services, the fees payable by Customer will increase or decrease in accordance with any such modification upon the date specified on the applicable site. Customer acknowledges and agrees that access Fees for the Subscription Services will be due and payable in advance by credit card at the time of the Order, and usage Fees will charged in arrears to the credit card of file with Fruition. Fruition may suspend provision of the Subscription Services for delinquent payments. Customer’s payment obligation will remain in effect during any such suspension. Fruition may charge Customer interest at the rate of 1% per month or the highest rate permitted by law on any late payment. Customer will not chargeback any amounts paid to Fruition by credit card and will reimburse Fruition for any chargeback fees associated with the foregoing.
- 2.2 Taxes. Customer will pay directly any taxes arising out of this Agreement, including applicable local, state, federal and international sales taxes, value added taxes, withholding taxes, and any other taxes or duties of any kind, but excluding taxes on Fruition’s net income and all employer reporting and payment obligations with respect to Fruition’s personnel. If any applicable law requires Customer to withhold amounts from any payments to Fruition under this Agreement, (a) Customer will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Fruition with tax receipts evidencing the payments of such amounts and (b) the sum payable by Customer upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Fruition receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Fruition would have received and retained absent the required deduction or withholding.
- Subscription Access; Restrictions.
- 3.1 Access. Fruition will provide access to the Subscription Services to Customer solely for Customer’s business operations and subject to the restrictions set forth in this Section 3. During the Subscription Term, Customer will make available to Fruition as needed, access to Customer’s code repository for the Customer Content (as defined herein) that Fruition will manage as part of the Subscription Services. Customer is solely responsible for the development and management of such Customer Content
- 3.2 Requirements. Customer shall: (a) use the Subscription Services in accordance with this Agreement and all Documentation; (b) be responsible for its users’ compliance with this Agreement; (c) use commercially reasonable efforts to prevent unauthorized use of or access to the Subscription Services or any related account or password, or any copying of the Subscription Services, and shall notify Fruition immediately of any such unauthorized use, access or copying; and (d) be solely responsible for the accuracy and legality of Customer Content, the means by which it acquires and uses such Customer Content, including compliance with any regulations and laws applicable to the Customer Content (including, without limitation, privacy and data protection), and has obtained all rights in the Customer Content necessary to permit Fruition’s compliance with its obligations under this Agreement. Customer may not perform benchmarks or comparative tests or evaluations for disclosure to a third party of the Subscription Services without Fruition’s prior written consent.
- 3.3 Restrictions. Customer shall not, and shall not allow others to: (a) except as permitted by this Agreement, directly or indirectly: distribute, sell, sublicense, rent, lease, market, use or commercialize the Subscription (or any portion thereof); (b) provide the Subscription Services on a time sharing, hosting, service provider or other similar basis; (c) circumvent or attempt to circumvent contractual usage restrictions, (d) send, store, access or authorize a third party to send, store or access spam, unlawful, infringing, obscene or libelous material, viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; or (e) interfere with or disrupt the integrity or performance of the Subscription Services.
- 3.4 OSS. The Subscription Services may include individual open source software components, each of which has its own copyright and its own applicable license conditions. Open source software is licensed to Customer under the terms of the applicable open source license conditions and copyright notices that can be found in the Documentation or other materials made available to Customer. In the event of a conflict between the licenses and restrictions set forth in this Section 3 and the terms of the open source license governing open source software, the terms of the open source software license will prevail.
- 3.5 HIPAA. Customer agrees that: (i) Fruition is not acting on Customer’s behalf as a Business Associate or subcontractor; (ii) the Subscription Services may not be used to store, maintain, process or transmit protected health information (“PHI”) and (iii) the Subscription Services will not be used in any manner that would require Fruition, the Software, or the Subscription Services to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”). In the preceding sentence, the terms “Business Associate,” “subcontractor,” “protected health information” or “PHI” shall have the meanings described in HIPAA.
- 3.6 Prohibited Data. Customer agrees not to store unmasked credit card and social security data in the Subscription Services. Customer agrees that (i) Customer’s use of the Subscription Services complies with applicable requirements of the Payment Card Industry Data Security Standards, and (ii) Customer shall not disclose (and shall not require any individuals to disclose) the personal data of any individuals under the age of 18 to Fruition for processing.
- Customer Content; Security.
- 4.1 Processing of Customer Content. Customer grants Fruition the non-exclusive right to access and process the Customer Content for the sole purpose and only to the extent necessary to provide the Subscription Services. Fruition agrees not to use, access, disclose or process any Customer Content, except to: (i) perform the obligations permitted by Customer under this Agreement; and (ii) comply with applicable laws. As between Customer and Fruition, Customer retains all right, title, and interest in and to Customer Data.
- 4.2 Data Protection. To the extent any Personal Data (as defined in the DPA) is contained in Customer Content, the parties shall enter into the Data Protection Agreement (“DPA”) and the terms of such DPA shall be incorporated into this Agreement by reference.
- 4.3 Security. Company will maintain commercially reasonable administrative, physical and technical safeguards and controls for the availability, security, confidentiality and integrity of Customer Content stored in the Subscription Services. Company’s security policy is set forth in the Documentation.
- 4.4 Aggregated Data. Customer acknowledges and agrees that Fruition may collect aggregated and anonymized statistical and other performance information related to Customer’s use of the Subscription Services, which information will not include personal information, and Fruition may use such information for, among other things, Support, reporting, research, improvements to the Subscription Services, industry collaboration, and other reasonable business purposes.
- Publicity and Confidentiality.
- 5.1 Publicity. Fruition will be permitted to reference its relationship with Customer on its website, during discussions with analysts and reporters and in customer briefings and regulatory filings. Fruition will comply with Customer’s publicly available trademark usage policies.
- 5.2 Confidential Information. For purposes of this Agreement, the party disclosing Confidential Information is the “Discloser”, and the party receiving Confidential Information is the “Recipient”. Confidential Information means all information that is marked or identified as confidential or proprietary at the time of disclosure or that would be reasonably understood to be confidential based on the nature and circumstances surrounding disclosure. Confidential Information excludes information that is: (a) known to Recipient without restriction before receipt from Discloser; (b) publicly available through no fault of Recipient; (c) rightfully received by Recipient from a third party without a duty of confidentiality; or (d) independently developed by Recipient. If Confidential Information is required to be produced by law, court order, or governmental authority, Recipient must (unless legally prohibited) notify Discloser in advance and only disclose the information required. Recipient will use Discloser’s Confidential Information only for the purposes provided and as directed by Discloser. Confidential Information may not be disclosed to any third party other than Recipient’s and its Affiliates’ employees and contractors that need to access such information for purposes consistent with this Agreement and that are subject to obligations of confidentiality to Recipient no less restrictive than the terms set forth herein. At Discloser’s request, all written, recorded, graphical, or other tangible Confidential Information, including copies, must be returned to Discloser or destroyed by Recipient. Fruition will store Confidential Information in accordance with data retention policies unless a longer period is required by law. At the request of Discloser, Recipient will certify in writing that any Confidential Information not returned to Discloser has been destroyed.
- Intellectual Property.
- 6.1 Ownership. Fruition will own all intellectual property and proprietary rights in the Subscription Services, Documentation, and related works, including but not limited to any modifications and derivative works of the foregoing. Customer owns all right, title, and interest in and to the Customer Content.
- 6.2 Customer Content License. During the Subscription Term and for as long as Fruition processes Customer Content, Customer grants to Fruition a nonexclusive, non- transferable, royalty-free license to access, host, use, display and process Customer Content solely for the purpose authorized by Customer in connection with the Subscription Services.
- 6.3 Feedback. In the event that Customer provides Fruition with suggestions, enhancement requests, recommendations, proposals, documents, or other feedback (collectively, “Communications”), Customer grants Fruition a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use, modify, and distribute such Communications in any manner without compensation to Customer or attribution of any kind.
- Warranties and Disclaimers.
- 7.1 Service Warranty. Fruition warrants that Subscription Services will be performed in a professional and workmanlike manner consistent with applicable industry standards. If Customer believes there has been a breach of this warranty, Customer must notify Fruition in writing promptly following delivery of such Support stating in reasonable detail the nature of the alleged breach. As Fruition’s sole obligation and Customer’s exclusive remedy, Fruition will to correct or re-perform, at no additional charge, any non-conforming Subscription Services. Customer represents and warrants that it and its use of the Subscription Services will at all times comply with applicable laws.
- 7.2 Warranty Disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PROVIDED BY APPLICABLE LAWS, THE SUBSCRIPTION SERVICES, INCLUDING ALL UPDATES, BUG FIXES, WORK AROUNDS, OR ERROR CORRECTIONS, ARE PROVIDED TO CUSTOMER “AS-IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, NON-INFRINGEMENT, TITLE, PERFORMANCE, AND ACCURACY AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. Fruition DOES NOT WARRANT THAT USE OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. Fruition SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO THIRD-PARTY HOSTING PROVIDERS WITH WHOM CUSTOMER SEPARATELY CONTRACTS. Fruition DOES NOT MAKE ANY WARRANTIES AND SHALL HAVE NO OBLIGATIONS WITH RESPECT TO THIRD-PARTY APPLICATIONS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
- Limitation of Liability.
- 8.1 IN NO EVENT WILL Fruition OR ITS AFFILIATES BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, RELIANCE, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND AND HOWEVER CAUSED EVEN IF Fruition HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
- 8.2 Fruition AND ITS AFFILIATES’ AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, SUBSCRIPTION SERVICES, OR SOFTWARE INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE GREATER OF (I) THE TOTAL AMOUNT OF FEES ACTUALLY PAID (OR WITH RESPECT TO CLAIMS FOR FEES DUE, PAYABLE) TO Fruition BY CUSTOMER PURSUANT TO THE ORDER GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE TIME THE CLAIM AROSE AND (II) US $100.00.
- 8.3 THE PROVISIONS OF THIS SECTION 8 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND Fruition AND Fruition’S FEES FOR THE SUBSCRIPTIONS REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.
- Term and Termination.
- 9.1 Term; Termination. This Agreement will be in effect until all outstanding Orders have expired or has been terminated in accordance with this Agreement. Each Order will be effective for the term specified therein (“Subscription Term”). During the Subscription Term, Customer may purchase Subscriptions and such Subscriptions will be co-terminus with the then-current Subscription Term. Either party may elect not to renew an Order by providing the other party with no less than thirty (30) days’ prior written notice (which notice may be by email). Either party may terminate all Orders with immediate effect: (a) in the event that the other party breaches this Agreement and does not cure such breach within thirty (30) days following of written notice of such breach, (b) in the event that the other party ceases business, becomes insolvent or bankrupt or if a receiver, examiner, administrator or administrative receiver is appointed over any part of that party’s business or if anything analogous occurs in relation to that party under the laws of another jurisdiction, or (c) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings in relation to such party.
- 9.2 Suspension. Fruition may suspend Customer’s access to the Subscription Services immediately if Fruition reasonably determines that there is a risk to the Subscription Services or any third party, or that Customer’s use of the Services violates applicable laws. Additionally, Fruition may suspend access to the Subscription Services in the event that Customer makes publicly available the Subscription Services, or any component thereof. For the avoidance of doubt, payment obligations are not suspended or terminated if Fruition suspends access to the Subscription Services.
- 9.3 Effect of Termination. Upon termination of this Agreement, (i) Customer’s rights to use the Subscription Services, Software, and all Fruition Marks, including any included with software, will immediately cease, and (ii) unless Customer terminates due to Fruition’s material, uncured breach, all Fees will become immediately due and payable.
- 9.4 Survival. Sections 2 (Fees), 3.5 (Restrictions), 4.4 (Aggregated Data), 5 (Confidentiality), 6 (Intellectual Property), 7.2 (Warranty Disclaimer), 8-11 (Limitation of Liability, Term and Termination, Indemnification, and General) and Definitions will survive the expiration or termination of this Agreement.
- Customer, at its own expense, will defend or settle any third party claims, actions and demands brought by a third party against Fruition or its Affiliates, arising from: (a) Customer Content; (b) Customer’s breach of Section 3.3 of this Agreement; or (c) Customer failure to comply with applicable laws, rules or regulations in its performance of this Agreement. Customer will defend Fruition from and against any claim by a third party arising from or relating to any Customer Content or any product or service offered by Customer in connection with or related to the Subscription Services, and will indemnify and hold harmless Fruition from any damages and costs awarded against Fruition or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.
- 11.1 From time to time, Fruition may modify this Agreement. Unless otherwise specified by Fruition, changes become effective for Customer upon renewal of the then-current Subscription Term or entry into a new Order after the updated version of this Agreement goes into effect. Fruition will use reasonable efforts to notify Customer of the changes through its website, via Customer’s account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order. In any event, continued use of the Subscription Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
- 11.2 This Agreement and any dispute relating to, or arising out of this Agreement or its formation or termination or actions or omissions contemplated by this Agreement, will be governed by and in accordance with the laws of Delaware, without giving effect to the conflict of laws provisions. For all disputes arising out of this Agreement, the parties consent to the exclusive jurisdiction of the federal and state courts located in Denver, Colorado
- 11.3 Unless otherwise specified in this Agreement, all notices will be in writing and will be mailed (via registered or certified mail, return receipt requested), delivered by a nationally recognized express courier service with the ability to track shipments, or personally delivered to the other party at the address set forth above (or at such other address as either party may designate in writing to the other party). All notices are effective upon receipt.
- 11.4 This Agreement is binding on the parties to this Agreement, and nothing in this Agreement confers upon any other person or entity any right, benefit or remedy of any nature whatsoever. This Agreement is assignable by either party only with the other party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to an Affiliate or as a result of a merger or a sale of all or substantially all of such party’s assets or stock without the prior approval of the other party. There are no third-party beneficiaries to this Agreement.
- 11.5 This Agreement, including any linked terms set forth herein, together with all Orders, is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. All amendments to this Agreement must be in writing, provided that Fruition amend this Agreement at any time by posting a revised version on its website, in the customer portal, or by providing notice to Customer by email. By continuing to use the Subscription Services after the effective date of the amendment, Customer agrees to be bound by the amended Agreement. Additionally, Fruition may modify the Subscription Services, provided that Fruition not materially reduce such Subscription Services during the then-current Subscription Term. Purchase orders issued by Customer will be for the sole purpose of defining quantities, prices and describing the Subscription Services to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected.
- 11.6 Failure to enforce any provision of this Agreement will not constitute a waiver thereof. No waiver will be effective unless it is in writing and signed by the waiving party. If a party waives any right, power, or remedy, the waiver will not waive any successive or other right, power, or remedy the party may have under this Agreement. If any provision is found to be unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.
- 11.7 Neither party will be liable for failures or delays in performance due to causes beyond its reasonable control, including, but not limited to, any act of God, fire, earthquake, flood, storm, natural disaster, accident, pandemic, labor unrest, civil disobedience, act of terrorism or act of government; however, the inability to meet financial obligations is expressly excluded.
- 11.8 Customer agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with Customer’s use of the Subscription Services and Software. In particular, but without limitation, the Software may not, in violation of any laws, be exported or re-exported: (1) into any U.S. embargoed country; or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. Customer represents and warrants that Customer and its Affiliates are not located in, under the control of, or a national or resident of any such country or on any such list.