Subscription Agreement

SUBSCRIPTION AGREEMENT
This Subscription Agreement (“Agreement”) is entered into as of the _____ day of ______, 2009 (“Effective Date”) by and between Image Terrain, Inc. (“IMAGE TERRAIN”), a _____________ corporation with principal place of business at 561 Washington Avenue, West Haven, CT  06516, and ___________________________ ________________________________________________________ (“Subscriber”).
1. Introduction
As part of the Service, IMAGE TERRAIN will provide Subscriber with use of the Service, including a browser interface and data encryption, transmission, access and storage.  Subscriber’s registration for, or use of, the Service shall be deemed to be Subscriber’s agreement to abide by this Agreement including any materials available on the IMAGE TERRAIN website (www.imageterrain.com) incorporated by reference herein, including but not limited to IMAGE TERRAIN's privacy policies and terms of use.  For reference, a Definitions section is included at the end of this Agreement.

2. License Grant & Restrictions
IMAGE TERRAIN hereby grants Subscriber a non-exclusive, non-transferable, worldwide right to use the Service, solely for Subscriber’s own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to Subscriber are reserved by IMAGE TERRAIN.

Subscriber may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

Subscriber shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) reverse engineer the Service, or (iv) access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
Subscriber may use the Service only for Subscriber’s internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy or intellectual property rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
3. Our Responsibilities
IMAGE TERRAIN will use commercially reasonable efforts to maintain the security of the Service and Subscriber Data and ensure that the Service is available to the Subscriber and performing substantially in accordance with the online help documentation (where applicable).
4. Subscriber’s Responsibilities
Subscriber is responsible for all activity occurring under Subscriber’s username and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Subscriber’s use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Subscriber shall: (i) notify IMAGE TERRAIN immediately of any unauthorized use of any password or account or any other known or suspected breach of security;  and (ii)  not impersonate another IMAGE TERRAIN user or provide false identity information to gain access to or use the Service.
5. Account Information and Data
IMAGE TERRAIN does not own any data, information or material that Subscriber submits to the Service in the course of using the Service ("Subscriber Data"). Subscriber, not IMAGE TERRAIN, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Subscriber Data submitted to the IMAGE TERRAIN Service. In the event this Agreement is terminated or expires, IMAGE TERRAIN will delete and destroy any and all Subscriber Data in its possession, custody or control.  Upon termination or expiration,   IMAGE TERRAIN shall have no obligation to maintain of forward any Subscriber Data to Subscriber.
In the event that IMAGE TERRAIN may need to access Users accounts to respond to service or technical problems, all information accessed by IMAGE TERRAIN in connection therewith shall constitute Subscriber Data for all purposes hereunder. IMAGE TERRAIN shall have no rights to use, copy, store or display Subscriber Data except as necessary for performance of IMAGE TERRAIN’s obligations under this Agreement.
IMAGE TERRAIN acknowledges that Subscriber Data may include Personally Identifiable Information (“PII”) subject to privacy protections specified herein.  All Subscriber Data shall at all times remain the exclusive property of Subscriber.  Subscriber Data shall not be (1) used by IMAGE TERRAIN other than in connection with providing the Services; (2) disclosed, sold, assigned, leased or otherwise transferred or provided to third parties by IMAGE TERRAIN; or (3) commercially exploited by or on behalf of IMAGE TERRAIN.   IMAGE TERRAIN shall not reproduce or copy any Subscriber Data, except as required to provide the Service hereunder and for backup/disaster recovery purposes.  Upon Subscriber’s request at any time during the term of this Agreement, IMAGE TERRAIN shall erase or destroy all or any part of Subscriber Data in IMAGE TERRAIN’s possession, custody or control. 
6. Intellectual Property Ownership
IMAGE TERRAIN alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the IMAGE TERRAIN Technology and the Service and to any changes made to the IMAGE TERRAIN Technology and the Service that may be based upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Subscriber or any other party relating to the Service. This Agreement is not a sale and does not convey to Subscriber any rights of ownership in or related to the Service, the IMAGE TERRAIN Technology or the Intellectual Property Rights owned by IMAGE TERRAIN. The IMAGE TERRAIN name, the IMAGE TERRAIN logo, and the product names associated with the Service are trademarks of IMAGE TERRAIN or third parties, and no right or license is granted to use them.
7. Charges and Payment of Fees
Subscriber shall pay all fees or charges to Subscriber’s account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable or as otherwise agreed to in a separate signed contract. The initial charge will be based on the specific image download allowances to which Subscriber subscribes as set forth in the attached Schedule A. All payment obligations are noncancelable and all amounts paid are nonrefundable except as otherwise provided herein. All pricing terms are confidential, and Subscriber agrees not to disclose them to any third party.
 8. Billing and Renewal
IMAGE TERRAIN charges and collects in advance for use of the Service. IMAGE TERRAIN will automatically renew the Agreement and issue an invoice to Subscriber approximately thirty (30) days prior to the expiration of each successive term of the Agreement. Fees for other services will be charged on an as-quoted basis. IMAGE TERRAIN's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Subscriber shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on IMAGE TERRAIN's income.

Subscriber agrees to provide IMAGE TERRAIN with complete and accurate billing and contact information. This information includes Subscriber’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. Subscriber agrees to update this information within 30 days of any change to it. If the contact information Subscriber has provided is false or fraudulent, IMAGE TERRAIN reserves the right to terminate Subscriber’s access to the Service in addition to any other legal remedies.

Unless other written agreement has been made, entities will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes.
If Subscriber believes Subscriber’s bill is incorrect, Subscriber must contact IMAGE TERRAIN in writing within thirty (30) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
9. Non-Payment and Suspension
In addition to any other rights granted to IMAGE TERRAIN herein, IMAGE TERRAIN reserves the right to suspend or terminate this Agreement and Subscriber’s access to the Service if Subscriber’s account is delinquent for more than thirty (30) days. If Subscriber or IMAGE TERRAIN initiates termination of this Agreement, Subscriber will be obligated to pay the balance due on Subscriber’s account. Subscriber agrees that IMAGE TERRAIN may bill Subscriber for such unpaid fees.
IMAGE TERRAIN reserves the right to impose a reconnection fee in the event Subscriber is suspended and thereafter requests access to the Service. Subscriber agrees and acknowledges that IMAGE TERRAIN has no obligation to retain Subscriber Data after termination or expiration of the Agreement or Subscriber has requested destruction of the Subscriber Data..
10. Termination upon Expiration/Reduction in Licenses
The Initial Term will be one year or as otherwise mutually agreed upon, commencing on the date Subscriber agrees to pay for the Service. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term for the same image download allowances at IMAGE TERRAIN's then current fees. Either party may terminate this Agreement or modify the renewal term, effective only upon the expiration of the then current term, by notifying the other party in writing no later than five (5) business days prior to the anticipated date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination.

11. Termination for Cause
Any breach of Subscriber payment obligations or any Subscriber unauthorized use of the IMAGE TERRAIN Technology or Service will be deemed a material breach of this Agreement, whereupon IMAGE TERRAIN, in its sole discretion, may terminate Subscriber’s password, account or use of the Service under the terms of Section 9. In addition, IMAGE TERRAIN may terminate a free account at any time in its sole discretion.
12. Excessive Service Usage and Service Limits
IMAGE TERRAIN alone shall determine if a Subscriber is using the Service in a manner that materially affects the ability of the Service to operate effectively or materially impacts upon other Subscribers’ access to or use of the Service.  In the event of such a determination, IMAGE TERRAIN may impose additional charges or bandwidth throttling on that Subscriber.  However, IMAGE TERRAIN shall provide notice to the responsible Subscriber before implementing any such remedy. IMAGE TERRAIN reserves the right to establish or modify its general practices and limits relating to excessive Service usage and service limits.
13. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. IMAGE TERRAIN represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online IMAGE TERRAIN help documentation under normal use and circumstances. Subscriber represents and warrants that Subscriber has not falsely identified itself nor provided any false information to gain access to the Service and that Subscriber’s billing information is correct.

14. Mutual Indemnification
Subscriber shall indemnify and hold IMAGE TERRAIN and each of its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' and professionals’ fees and costs) arising out of any third party claims in connection with: (i) a claim alleging that possession, display, use, reproduction or dissemination of Subscriber Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Subscriber of Subscriber’s representations and warranties; or (iii) a claim arising from the breach by Subscriber or Subscriber’s Users of this Agreement, provided in any such case that IMAGE TERRAIN (a) gives written notice of the claim promptly to Subscriber; (b) gives Subscriber sole control of the defense and settlement of the claim (provided that Subscriber may not settle or defend any claim unless Subscriber and all other parties to such claim unconditionally release IMAGE TERRAIN of all liability, and such settlement does not affect IMAGE TERRAIN's business or Service); (c) provides to Subscriber all available information and assistance; and (d) has not compromised or settled such claim.

IMAGE TERRAIN shall indemnify and hold Subscriber and Subscriber’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes any Intellectual Property Rights of a third party; (ii) a claim, which if true, would constitute a violation by IMAGE TERRAIN of its representations or warranties; or (iii) a claim arising from breach of this Agreement by IMAGE TERRAIN; provided that Subscriber shall (a) promptly give written notice of the claim to IMAGE TERRAIN; (b) give IMAGE TERRAIN sole control of the defense and settlement of the claim (provided that IMAGE TERRAIN may not settle or defend any claim unless it unconditionally releases Subscriber of all liability); (c) provide to IMAGE TERRAIN all reasonably available information and assistance; and (d) have not compromised or settled such claim. Notwithstanding the foregoing, IMAGE TERRAIN shall have no indemnification obligation, and Subscriber shall indemnify IMAGE TERRAIN pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Subscriber’s products, services, hardware or business processes.

15. Confidentiality
Each party agrees that it will not, during or after the term of this Agreement, permit the duplication or disclosure of any Confidential Information of the other party to any third party person or entity. Both parties reserve the right to request such a non-disclosure agreement from outside agents, including consultants or contractors who will be exposed to such Confidential Information. Without limiting any of the foregoing, IMAGE TERRAIN acknowledges that Subscriber Data, Subscriber’s membership and other mailing lists and information are Confidential Information and PII subject to the provisions of this Agreement.
Each party acknowledges that the terms of this Agreement and all technical, business, and other information of each party disclosed to or obtained by the other party whether prior to, on or after the date of this Agreement is proprietary and constitutes Confidential Information of the disclosing party. Each party agrees to treat all Confidential Information disclosed by the other as confidential and proprietary and to make all reasonable efforts to maintain such confidential and proprietary status consistent with the party's efforts to protect its own confidential and proprietary information but in no event with less than reasonable care.
Neither party shall disclose any Confidential Information of the other, except as specifically and expressly permitted by this Agreement, or disclose any such Confidential Information to any person or entity who is not an employee or authorized agent of the parties to this Agreement. All employees and authorized agents of a party to whom such Confidential Information is disclosed must be informed of its confidential nature and any Confidential Information so disclosed shall be used solely for the purposes of carrying out such party’s duties and obligations under this Agreement.
This Agreement imposes no restriction upon the disclosure or use of Confidential Information: (i) that was in the recipient's possession before receipt from the discloser; (ii) that is or becomes (prior to such disclosure or use) a matter of public knowledge through no fault of the recipient; (iii) that becomes available to recipient from sources not known by it, after reasonable inquiry, to be subject to disclosure restrictions; (iv) that is independently developed by the recipient without reliance on or benefit of the discloser’s Confidential Information; (v) that is disclosed in accordance with the order or  requirement of a court, administrative agency, or other governmental body of competent jurisdiction (provided, however, that the recipient shall provide prompt Notice thereof to enable the discloser to seek a protective order or otherwise prevent such disclosure); or (vi) that is disclosed by the recipient with the discloser's prior written approval.
16. Disclaimer of Warranties
EXCEPT AS OTHERWISE SPECIFIED HEREIN, IMAGE TERRAIN MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. IMAGE TERRAIN  DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET SUBSCRIBER REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY SUBSCRIBER THROUGH THE SERVICE WILL MEET SUBSCRIBER REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO SUBSCRIBER STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY IMAGE TERRAIN.

17. Internet Delays
IMAGE TERRAIN'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. IMAGE TERRAIN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
18. Limitation of Liability
IN NO EVENT SHALL IMAGE TERRAIN'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM SUBSCRIBER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT PREVIOUSLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  
19. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to Subscriber.    
20. Local Laws and Export Control
IMAGE TERRAIN’s website provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the U.S. Department of Defense, the U.S. Department of Treasury Office of Foreign Assets Control, and other U.S. departments and agencies. Subscriber acknowledges and agrees that the website shall not be used, and none of the underlying information, software, or technology may be 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. By using the Service, Subscriber represents and warrants that Subscriber is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Subscriber agrees to comply strictly with all U.S. export laws and assumes sole responsibility for obtaining licenses to export or re-export as may be required.

IMAGE TERRAIN makes no representation that the Service is appropriate or available for use in locations outside the United States of America or its territories. If Subscriber uses the Service from outside the United States of America, Subscriber is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.
21. Notice
Either party may give notice by means of electronic mail to an e-mail address as provided and agreed to by the other party to be suitable for receiving such notices hereunder, or by written communication sent by nationally recognized overnight delivery service or first class mail or pre-paid post to the addresses identified below.  Any written notice delivered personally shall be deemed communicated as of actual receipt; notices sent by mail shall be deemed to have been given three (3) calendar days (excluding Saturdays, Sundays and national holidays) after the time when the same was deposited in the mail as set forth in the preceding sentence; and notices sent by email shall be deemed to have been given 12 hours after sending. 

 

IMAGE TERRAIN:

 

Image Terrain, Inc.
Attn: Chief Executive Officer
561 Washington Avenue
West Haven, CT  06516

 

Customer:

 

 

 

22. Modification to Terms
Alterations, modifications or amendments of a provision of this Agreement by either party shall not be binding unless such alterations, modifications or amendments are in writing and signed by authorized representatives of IMAGE TERRAIN and Subscriber.
23. Assignment; Change in Control
Neither party may assign or transfer this Agreement without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld, except that IMAGE TERRAIN may assign this Agreement to an affiliate or a successor to its business without obtaining the consent of Subscriber.  Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Subscriber that results or would result in a direct competitor of IMAGE TERRAIN directly or indirectly owning or controlling 50% or more of Subscriber shall entitle IMAGE TERRAIN to terminate this Agreement for cause immediately upon written notice.    
24. General
This Agreement shall be governed by Connecticut law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Connecticut. No text or information set forth on any other  form or document shall add to or vary the terms and conditions of this Agreement. In the event that any of the provisions of this Agreement shall be held by a court of law or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Subscriber and IMAGE TERRAIN as a result of this agreement or use of the Service. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the other party in writing. This Agreement, together with the applicable Schedule A comprises the entire agreement between Subscriber and IMAGE TERRAIN and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.   Sections 5, 6, 13, 14, 15, 18 and 24 shall survive any termination or expiration of this Agreement.  
25. Definitions    
As used in this Agreement and in any Schedule A now or hereafter associated herewith:
"Agreement" means these terms of use, any Schedule A, whether written or submitted online, and any materials available on the IMAGE TERRAIN website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by IMAGE TERRAIN from time to time in its sole discretion.
“Business Days” are Monday through Friday not including United States government or IMAGE TERRAIN holidays. “Business Hours” are 9:00 a.m. to 5:30 p.m. Eastern Time on Business Days.
"Initial Term" means the initial period during which Subscriber is obligated to pay for the Service.
"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
"Image Terrain Technology" means all of IMAGE TERRAIN's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Subscriber by IMAGE TERRAIN in providing the Service.
“Notice” means written communication given by IMAGE TERRAIN to Subscriber or by Subscriber to IMAGE TERRAIN as defined in section 21 of this Agreement.
"Service" means the image creation and manipulation software services developed, operated, and maintained by IMAGE TERRAIN, accessible via http://www.imageterrain.com or another designated web site or IP address, to which Subscriber is being granted access under this Agreement, including the Image Terrain Technology.


"User(s)" means Subscriber’s employees, representatives, consultants, contractors, constituents, members, or agents who are authorized to use the Service.

IN WITNESS WHEREOF, this Agreement is executed as of the date first written above.
IMAGE TERRAIN:
IMAGE TERRAIN, LLC.

By:_________________________________________________
              President
Date:_________________________________________________

Subscriber:

By:_________________________________________________
Name:_______________________________________________
Title:________________________________________________
Date:_________________________________________________