LEARN TO MAKE A PRODUCT, LLC. SUBSCRIBER AGREEMENT
TERMS & CONDITIONS
Services. Subject to the terms and conditions of this subscriber agreement, including any attachments, exhibits, and any additional or supplemental Subscriber Details forms (collectively, the “Agreement”) and any other policies Learn to Make a Product, LLC (hereinafter “LTMAP,” “we,” “our,” or “us”) make available to you from time to time, during the Term (as defined in the Subscriber Details above), LTMAP will use commercially reasonable efforts to provide you the Services described above. These Services are referred to in this Agreement as the “Services.” LTMAP and Subscriber are referred to herein individually as a Party and collectively as the Parties.
Additional Services. LTMAP may, at their sole discretion, offer additional services (“Additional Services”) to Subscribers for purchase at an hourly fee. However, LTMAP will never bill you for additional services without your express written approval. Should you and LTMAP mutually agree to additional Services not contemplated in the Subscriber Details above, we will execute an addendum to this Agreement.
SUBSCRIPTION FEES; PAYMENT
Payments Due Upon Signing. Upon submitting a signed and completed Agreement, you will be obligated to deliver to us payment of your initial subscription fee. Any other fees mutually agreed upon and owed by you shall be paid separately, unless requested at the time of signing this Agreement by LTMAP.
Subscription Fee. During the Term (defined in the Subscriber Details above) of this Agreement, we will process payment for your Subscription Fee and other then-outstanding fees, in advance, monthly. Your billing date corresponds to the day you signed up for the Services. If your billing date is scheduled for a date that does not occur in every month (ie. the 31st), you will be billed on the last day of that month instead. You shall be responsible for having the necessary funds available in your payment account as of your billing date.
Reimbursement of Expenses. Subscriber agrees to reimburse LTMAP for all actual, reasonable, and necessary expenditures, which are directly related to the delivery of the Services, so long as such expenses are identified in the Subscriber Details or requested from Subscriber and approved by Subscriber in advance. Subscriber understands and acknowledges that expense estimates provided by LTMAP are estimated and may differ due to unforeseen circumstances and Subscriber will reimburse LTMAP’s reasonable expenses actually incurred within ten (10) days of LTMAP’s written request for reimbursement, which may alternatively be included on invoices delivered to Subscriber.
Outstanding Fees. When we receive funds from you, we will first apply funds to any balances which are in arrears and to the earliest month due first. Once past balances are satisfied, any remaining portion of the funds will be applied to current fees due. If any payments remain outstanding after we provide notice to you, we may, in our sole discretion, withhold our performance under this Agreement or terminate this Agreement in accordance with the TERMINATION provision below.
Refunds. Except as provided in the TERMINATION provision below, in the event that LTMAP believes they are unable to provide support to Subscriber, you will be notified in writing and a pro-rated refund will be issued for the remaining, unserviced days of the calendar month. In all other cases, refunds will only be issued if both of the following two criteria are met: (1) you have had an active subscription for less than seven (7) calendar days; AND (2) you have not used any support time from LTMAP. For all refunds due to Subscriber’s cancellation, LTMAP reserves the right to deduct a ten percent (10%) kill fee from the total refund to Subscriber for the loss of opportunity suffered by LTMAP.
MONTHLY SUBSCRIPTION; TERMINATION
Monthly Subscription. Unless otherwise set forth elsewhere in this Agreement, or in the Subscriber Details form above, the following specific terms shall apply to all Subscribers holding a “Monthly Subscription” with LTMAP:
- Term. The default Term for Monthly Subscription is one (1) calendar month.
- Usage. Your “Usage” of the Services outlined in the Subscriber Details above begins to accrue upon signature of this Agreement by both LTMAP and Subscriber. However, LTMAP will not include the time it takes to onboard you or to answer preliminary questions about the Services toward your Usage. Should your Usage not meet the amount of Support Time agreed to in the Subscriber Details at the end of a calendar month, the remaining Support Time will not carry over to the next month.
- Renewal. This Monthly Subscription will automatically renew at the end of the Term, and shall continue thereafter from month-to-month. Notwithstanding the preceding sentence, LTMAP retains the right to increase or decrease your Subscription Fee, or refuse to renew the Agreement entirely by giving you one month’s notice of such increase, decrease, or non-renewal. In the case of a Subscription Fee increase or decrease, you will also be given the option of terminating your Agreement at the end of the month prior to the Subscription increase or decrease coming into effect.
Termination. LTMAP may terminate this Agreement for any reason at any time. You may terminate this Agreement either by cancelling your subscription through the Learn To Make a Product Application (the “App”) or by emailing us at email@example.com at least one business day prior to your next subscription billing date, or by notifying us of your intent to terminate this Agreement if we notify you of a Subscription Fee increase. Once LTMAP receives your notice, you are no longer entitled to any Support Time under this Agreement and all communications between you and LTMAP will be erased after thirty (30) days, including the Slack channel provided to you by LTMAP.
- Unresponsiveness by Client. You understand that if, at any time, you become unresponsive to LTMAP’s requests or communications for more than one (1) month without notice, LTMAP may immediately terminate this Agreement without prior notice to you.
CODE OF CONDUCT
Code of Conduct, In General. During the Term of this Agreement, you agree to treat LTMAP’s employees and independent contractors with respect by adhering to the code of conduct (“Code of Conduct”) laid out in in Section 4 of this Agreement. You, therefore, may not use the Services in a manner that:
violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);
violates or infringes someone else’s rights of publicity, privacy, copyright, trademark, or other intellectual property right;
bullies, harasses, intimidates, or promotes violence or hate speech against, or is otherwise hostile to LTMAP’s staff;
defames another, or is in any other way unprofessional toward LTMAP or LTMAP’s staff;
impersonates or attempts to impersonate LTMAP, a LTMAP employee, another Subscriber or any other person or entity;
misleads or otherwise spreads false information;
spams or solicits by transmitting, or procuring the sending of, any advertising or promotional material, to LTMAP without our prior written consent;
Violation of Code of Conduct. You understand that any violation of this Code of Conduct is cause for immediate termination of this Agreement by LTMAP and you will not be entitled to any refund for any unused Support Time.
Employment of Others. LTMAP may employ the services of other independent contractors or service providers without the permission of Subscriber in order to complete the services. LTMAP shall be responsible for supervision and control of any employees or independent contractors who perform services, including without limitation event management support, pursuant to this Agreement. All such persons shall be employees and/or contractors of LTMAP and not of Subscriber. The responsibility for specification of the work to be performed and the specific services hereunder shall be exclusively that of LTMAP’s.
Technology Release. In order to utilize all the functionalities offered by us, it may be necessary to install software onto a Subscriber’s computer, tablet, mobile device or other electronic equipment. Regarding the foregoing, you agree that we and our affiliates: are not responsible for any damage to any Subscriber’s computer, tablet, mobile device or other electronic equipment, or otherwise to Subscriber’s system, related to such technical support or downloading and installation of any software; do not assume any liability or warranty in the event that any manufacturer warranties are voided; and do not offer any verbal or written warranty, either expressed or implied, regarding the success of any technical support.
Ownership of Intellectual Property. LTMAP and Subscriber shall each retain ownership of, and all right, title and interest in and to, their respective, pre-existing Intellectual Property ("Intellectual Property" shall mean illustrations, trademarks, works of authorship, trade secrets, techniques, know-how, ideas, concepts, designs, and other content or media utilized or created by either Party), and no license therein, whether express or implied, is granted by this Agreement or as a result of the services performed hereunder, with the exception of the Intellectual Property owner’s permission for the receiving Party to use such Intellectual Property for the purposes of this Agreement. To the extent the parties wish to grant to the other rights or interests in pre-existing Intellectual Property beyond the purposes of this engagement, separate license agreements on mutually acceptable terms will be executed. Subscriber understands and expressly agrees that the rights and ownership assigned for any Intellectual Property created under the terms of this Agreement are hereby withheld from Subscriber until Subscriber makes full payment of any outstanding invoice due for Services. Upon full payment for Services, the following shall take effect: LTMAP agrees to assign, transfer and convey to Subscriber all rights, titles and interests acquired or held in any branding, media, content, designs, copy, models or any other materials (“Content”) provided to Subscriber. Subscriber may register the copyright, patent, trademark, and otherwise protect its interest in the rights granted herein in its own name. LTMAP agrees to reasonably assist Subscriber, at Subscriber’s expense, as necessary to perfect Subscriber’s rights in the ownership as provided herein. All services must be attributed to LTMAP when used publicly, unless LTMAP specifies otherwise in writing.
Original Work Product & Promotional License. All rights not expressly granted above are reserved to LTMAP, including but not limited to all rights in drafts, sketches, comps, plans, or other preliminary materials created by LTMAP. Subscriber understands and expressly agrees to a non-exclusive, irrevocable license, permitting LTMAP to use the any proceeds of LTMAP’s Services under this Agreement for LTMAP’s professional portfolio and website, and in galleries, design periodicals, and other media or exhibits for the purpose of recognition of creative excellence or professional advancement.
Waiver of Liability For Personal Injury, Death, or Property Damage. Subscriber acknowledges and understands that all products created or business operations undertaken during the Term of this Agreement are solely created by Subscriber and are independent of LTMAP’s control. Subscriber further acknowledges and understands that during the Subscriber’s use of the Services, consumers and/or clients of Subscriber may be exposed to a variety of liabilities and risks, foreseen or unforeseen, which are inherent in Subscriber’s profession and/or trade. These inherent risks include, but are not limited to, the dangers of serious personal injury, death and property damage resulting from, but not limited to: (i) the intended use of the products or services offered by Subscriber, or (ii) any reasonably foreseeable misuse or abuse of the products or services offered by Subscriber. Subscriber further acknowledges and understands these Injuries and Damages may not be entirely eliminated. Subscriber fully understands and agrees that LTMAP has not tried to contradict or minimize Subscriber’s understanding of these risks. Subscriber knows that Injuries and Damages can occur by natural causes or activities of other persons, environmental circumstances, staff of LTMAP or other third parties, either as a result of negligence or because of other reasons. Subscriber understands the risks of such Injuries and Damages involved in any product or service offered by Subscriber during the Term of this Agreement. As such, Subscriber confirms their understanding of the following: To the fullest extent allowed by law, Subscriber agrees to WAIVE AND DISCHARGE CLAIMS AGAINST, RELEASE FROM LIABILITY, INDEMNIFY, AND HOLD HARMLESS LTMAP and its parents, subsidiaries and affiliates and their respective past and present officers, directors, stockholders, managers, members, partners, agents and employees (collectively, “Released Parties”) from and against ANY AND ALL LIABILITY on account of, or in any way resulting from, any death or personal injury claim from Subscriber’s clients relating to their use of Subscriber’s products or services during the Term of this Agreement, even if caused by NEGLIGENCE of the Released Parties; Such negligence could involve negligent instruction by LTMAP. Subscriber understands and intends that the assumption of risk and release is binding upon Subscriber’s heirs, executors, administrators and assignors. This waiver and release is intended to be as broad and inclusive as is permitted by law.
Performance. LTMAP shall make best efforts to produce successful Services for Subscriber, but LTMAP makes no representations, guarantees, or warranties as to the effectiveness or performance of the Services delivered. LTMAP’s services may be combined, integrated, or used with third party products, services, software applications, or websites (“Third Party Service”). LTMAP is responsible for obtaining all necessary licenses for Third Party Services, unless otherwise agreed upon by the Parties in writing. Subscriber shall purchase all applicable licenses for any copyrighted work used in the development of the services and for any third party vendor services. In the event of any changes by Third Party Services that materially affect the delivery or performance of LTMAP’s services contemplated by this Agreement, LTMAP shall provide notice to Subscriber and make every effort to work with Subscriber to find an acceptable alternative to the services or find a replacement service at the same or similar cost. If such a situation should occur and a suitable alternative or replacement is not found, responsibility and liability is limited to the return of payments received for the specific portion of the services affected. Subscriber agrees to not unreasonably withhold approval of an alternative.
Vendor Actions. We do not control and are not responsible for the actions of the vendors, factories, or any other third parties we may work with during the Term of this Agreement in order to complete the Services we’ve agreed to. If a dispute arises between Subscriber and any third party, we shall have no responsibility or obligation to participate, mediate or indemnify any party. Subscriber shall indemnify and hold LTMAP harmless from any and all claims, liabilities, costs, losses, damages, or expenses (including attorney fees) arising from any Third Party Service.
ARBITRATION AND CLASS ACTION WAIVER
Governing Law. This Agreement and the transactions contemplated hereby shall be governed by and construed solely under the law of the State of Pennsylvania, U.S.A. and the United States without regard to conflicts of laws provisions thereof and without regard to the Uniform Computer Information Transactions Act. Any dispute, controversy or claim arising out of or in relation to this Agreement, or at law, or the breach, termination or invalidity of this Agreement, that cannot be settled amicably by agreement of the parties to this Agreement shall be finally settled in accordance with the arbitration rules of JAMS then in force, by one or more arbitrators appointed in accordance with said rules. The place of arbitration shall exclusively be in the county of Philadelphia County, Pennsylvania, U.S.A.
Proceedings; Judgment. The proceedings shall be confidential. The award rendered shall be final and binding on both parties. Judgment on the award may be entered in any court of competent jurisdiction. In any action, suit or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief awarded, the prevailing party’s reasonable attorneys’ fees and other fees, costs and expenses of every kind in connection with the action, suit or proceeding, any appeal or petition for review, the collection of any award or the enforcement of any order, as determined by the arbitrator(s) or court, as applicable.
Class Action Waiver. Any proceeding to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. You and we also agree not to participate in claims brought in a private attorney general or representative capacity, or any consolidated claims involving another person’s account, if we are a party to the proceeding. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.
Confidentiality and Safeguard of Property. Subscriber and LTMAP acknowledge that in connection with this Agreement they may have occasion to receive or review certain confidential or proprietary technical and business information and materials of the other Party. Subscriber and LTMAP, as well as their agents and employees, respectively agree to keep in confidence, and not to disclose or use for its own respective benefit or for the benefit of any third party (except as may be required for the performance of services under this Agreement or as may be required by law), any information, documents, or materials that are reasonably considered confidential regarding each other’s products, business, customers, clients, suppliers, or methods of operation; provided, however, that such obligation of confidentiality will not extend to anything in the public domain or that was in the possession of either Party prior to disclosure. LTMAP and Subscriber will take reasonable precautions to safeguard property of the other entrusted to it, but in the absence of negligence or willful disregard, LTMAP will not be responsible for any loss or damage.
Similar Products and Exclusivity. Subscriber acknowledges that LTMAC works with other subscribers that develop a large number of products and materials. In light of the foregoing, the products and materials created by Subscriber during this Agreement may be similar or identical, in whole or in part, to one or more of the products and materials created by another subscriber of LTMAC’s services. Subscriber understands that this Agreement is non-exclusive. LTMAP is free to provide services to other parties during the Term of this Agreement, even if the services provided result in similar products and/or materials created by another party, provided that such provision of services to others does not materially interfere with the terms and obligations of this Agreement. Subscriber may not hire another service provider to complete the same or similar natured services as LTMAP during the term of this Agreement unless agreed to in writing by LTMAP in advance.
Relationship of the Parties. The relationship of the Parties under this Agreement is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created by this Agreement or the Parties’ related conduct. Neither Party may assume or create obligations on the other Party’s behalf, and neither Party may take any action that creates the appearance of such authority. LTMAP has the sole right to control and direct the means, details, manner, and method by which the services will be completed. Accordingly, LTMAP shall be responsible for payment of all taxes including Federal, State, and local taxes arising out of LTMAP’s activities in accordance with this Agreement, including by way of illustration but not limitation, Federal and State income tax, Social Security tax, Unemployment Insurance taxes, and any other taxes or business license fee as required.
Updates to the Agreement. With respect to the terms this Agreement, we may from time to time update this Agreement and will provide notice to you of these updates either by email at the email address provided in the Subscriber Details above. You will be deemed to have accepted the new terms of the Agreement following the completion of one (1) full calendar month after the date of notice of the update(s). Continued use of the Services beyond this time will constitute acceptance of the new terms.
Limitation of Liability. The aggregate monetary liability of any of the LTMAP Parties to you or your employees, agents, guests or invitees for any reason and for all causes of action, will not exceed the total Subscription Fees paid by you to us under this Agreement in the six (6) months prior to the claim arising. None of the LTMAP Parties will be liable under any cause of action, for any indirect, special, incidental, consequential, reliance or punitive damages, including loss of profits or business interruption. You acknowledge and agree that you may not commence any action or proceeding against any of the LTMAP Parties, whether, in contract, tort, or otherwise, unless the action, suit, or proceeding is commenced within six (6) months of the cause of action’s accrual.
Indemnification. You will indemnify the LTMAP Parties from and against any and all claims, liabilities, and expenses including reasonable attorneys’ fees, resulting from any breach of this Agreement by you or your actions or omissions. You shall not make any settlement that requires a materially adverse act or admission by us or imposes any obligation upon any of the LTMAP Parties without our written consent. None of the LTMAP Parties shall be liable for any settlement made without its prior written consent.
Force Majeure. LTMAP shall not be deemed in breach of this Agreement if LTMAP is unable to complete the services or any portion thereof by reason of fire, earthquake, labor dispute, act of a public enemy, death, illness, or incapacity of any LTMAP employee or any local, state, federal, national or international law, governmental order or regulation, or any other event beyond LTMAP’s control (collectively “Force Majeure Events”). Upon occurrence of any Force Majeure Event, LTMAP shall give notice to Subscriber of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
Severable Provisions; Non-Waiver. Each provision of this Agreement shall be considered separable. To the extent that any provision of this Agreement is prohibited, this Agreement shall be considered amended to the smallest degree possible in order to make the Agreement effective under applicable law. Any failure by LTMAP to require your performance of any provision in this Agreement shall not affect LTMAP’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
Notices. Any and all notices under this Agreement will be given via email at the email address provided in the Subscriber Details, and will be effective on the first business day after being sent.
Headings; Interpretation. The headings in this Agreement are for convenience only and are not to be used to interpret or construe any provision of the Agreement. Any use of “including,” “for example” or “such as” in this Agreement shall be read as being followed by “without limitation” where appropriate.
No Assignment. Except in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of the shares or assets of you or your parent corporation, you may not transfer or otherwise assign any of your rights or obligations under this Agreement (including by operation of law) without our prior consent. We may assign this Agreement without your consent.
Entire Agreement. This Agreement, including the Subscriber Details form, constitutes the entire agreement between the Parties relating to the subject matter hereof and shall not be changed in any manner except by a writing executed by both Parties or as otherwise permitted herein. All prior agreements and understandings between the Parties regarding the matters described herein have merged into this Agreement.