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SPEEDILICIOUS, LLC Subscription Agreement
THE SERVICES ARE PROVIDED ONLY ON THE CONDITION THAT THE SUBSCRIBER AGREES TO THE TERMS AND CONDITIONS IN THIS SUBSCRIPTION AGREEMENT ("AGREEMENT") BETWEEN SUBSCRIBER AND SPEEDILICIOUS, LLC. BY ACCEPTING THIS AGREEMENT OR BY USING THE SERVICES, SUBSCRIBER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT. IF THE INDIVIDUAL WHO SUBMITS AN ORDER DOES SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT ENTITY TO THE AGREEMENT.
"Affiliate" means a Subscriber that participates in the Program.
"CDN" or "Content Delivery Network" means a large network of servers spread around the world to enable Subscriber's Site Content to be delivered more quickly to browsers which are at a location remote from Subscriber's Origin server.
"Confidential Information" means any information disclosed by either party ("Disclosing Party") to the other party ("Receiving Party"), whether before or after the effective date of this Agreement, either directly or indirectly, in writing, orally, electronically or by inspection of tangible objects (including, without limitation, documents, prototypes, equipment, technical data, trade secrets and know-how, product plans, Services, services, suppliers, customer lists and customer information, prices and costs, markets, software, databases, developments, inventions, processes, formulas, technology, employee information, designs, drawings, engineering, hardware configuration information, marketing, licenses, finances, budgets and other business information), which is designated as "Confidential," "Proprietary" or some similar designation at or prior to the time of disclosure, or which should otherwise reasonably be considered confidential by the Receiving Party. Confidential Information may also include information disclosed by third parties to the Disclosing Party. Confidential Information shall not, however, include any information which the Receiving Party can document (i) was publicly known and made generally available prior to the time of disclosure by the Disclosing Party or an authorized third party, (ii) becomes publicly known and made generally available after disclosure through no action or inaction of the Receiving Party in violation of any obligation of confidentiality, (iii) is already in the possession of the Receiving Party at the time of disclosure, (iv) is lawfully obtained by the Receiving Party from a third party without a breach of such third party's obligations of confidentiality, or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information.
"Content" means Subscriber software, data, text, audio, video, images or other content.
"Customer" shall have the meaning set forth in Exhibit A, Section 5, below.
"Effective Date" means the date at which the Services are first activated.
"Flight Deck" means a web-based control panel provided by SPEEDILICIOUS that is used by Subscriber to configure and manage the Services.
"Order" means either: (i) the online order that Subscriber submitted to SPEEDILICIOUS via the SPEEDILICIOUS web site, an affiliate or partner web site, the Software or through any other related applications, widgets, software, tools, or other services provided by SPEEDILICIOUS or its affiliates and partners, or (ii) any other written order (either in electronic or paper form) provided to SPEEDILICIOUS by a Subscriber that describes the Services to be purchased and that is signed by the Subscriber, either manually or electronically. Such Order must indicate what subdomains the Services shall be applied to.
"Origin" means the Subscriber's origin server which is the complete version of their Site which they maintain and for which it is completely responsible. SPEEDILICIOUS uses the Origin as the source for the ‘true original' version of the Site to which it then applies the Services.
"Program" means the SPEEDILICIOUS Affiliate Program and is further described in Section 3, below.
"Services" means the SPEEDILICIOUS services as described in the Order.
"Site" means one Subscriber subdomain. For example, www.example.com is a different Site from www.documents.example.com and if a Subscriber wished for both Sites to undergo the Services, two of Subscriber's allotted sites would be used.
"Software" means SPEEDILICIOUS' proprietary software applications.
"Spam" means unsolicited bulk messages sent indiscriminately through the use of electronic messaging systems, including, but not limited to, email, instant messaging, text messaging, and comments to online content.
"SPEEDILICIOUS" means SPEEDILICIOUS, LLC, a Delaware corporation with its principal place of business at 325 Sharon Park Dr. Suite 806, Menlo Park, CA 94025-6805, USA.
"Subscriber" means the individual, company, jointly owned subsidiaries and their parent company, or other legal entity that has placed an Order and registered its details on the SPEEDILICIOUS Flight Deck at: https://secure.speedilicious.com/flight-deck/.
"Subscription" means a non-exclusive, nontransferable right to use the Services in accordance with this Agreement and the Order.
"Subscription Fees" means the agreed upon fees in an Order.
"Subscription Term" means the agreed upon time period set forth in an Order.
"Virus" or "Malware" means computer software or program code that is designed to damage or reduce the performance or security of a computer program or data.
"Visits" means the number of times a visitor visits a Subscriber's Site or downloads a file from such Site, for the first time or after more than 30 minutes after such visitor's last visit to Subscriber's Site, as measured by SPEEDILICOUS using page-level analytics. Such page-level analytics are inserted by SPEEDILICIOUS on each Site that the Services are applied to.
2. The Services.
2.1 Subscription. Contingent on SPEEDILICIOUS' acceptance of Subscriber's Order, Subscriber's fulfillment of its payment obligations, and subject to the terms and conditions of this Agreement, SPEEDILICIOUS will provide Subscriber the Services as set forth in the Order for the Subscription Term. Subscriber may use the Services solely for Subscriber's own business operations (not for the benefit of any other person or entity) during the Subscription Term, provided Subscriber has paid and continues to pay the Subscription Fees.
2.2 Evaluation of the Services. SPEEDILICIOUS may offer evaluation subscriptions to the Services subject to the terms of this Agreement. At the end of the evaluation period, as determined by SPEEDILICIOUS it its sole discretion, Subscriber must either pay the applicable Subscription Fees or this Agreement terminates as related to the evaluation.
2.3 SPEEDILICIOUS will use commercially reasonable efforts to provide the Services for the Subscription Term.
2.4 SPEEDILICIOUS agrees to implement reasonable and appropriate security practices at least as stringent as required by law.
2.5 SPEEDILICIOUS may modify, enhance, replace, or make additions to the Services ("Changes") without notice to Subscriber; provided, however, if such Changes materially and adversely affect the Services, SPEEDILICIOUS will notify Subscribers in advance of such Changes.
2.6 SPEEDILICIOUS may analyze Malware, Spam, and other information passing through the Services for the purposes of developing, analyzing, maintaining, reporting on, and enhancing the SPEEDILICIOUS Services and Software.
2.7 If Subscriber's Site is used to distribute Spam or Malware or to post or transmit obscene, indecent, pornographic, slanderous, defamatory, offensive, abusive, or menacing materials or materials which cause annoyance or needless anxiety to any other person, SPEEDILICIOUS may immediately suspend the Services in accordance with Section 10.5 until the problem is resolved or may terminate the Services permanently in accordance with Section 10.3, with no obligation to issue a refund for any prepaid Subscription Fees as determined in SPEEDILICIOUS' sole discretion.
2.8 On-boarding. If a Subscriber's Subscription contemplates the provision of Services to more than one Site, SPEEDILICIOUS reserves the right, in its sole discretion, to initiate the provisioning of the Services as quickly as commercially reasonable.
2.9 Analysis of Services. SPEEDILICIOUS may request that Subscriber provide SPEEDILICIOUS with aggregate, non personally identifiable, analytics data for the Sites before the Services were applied to the Sites to enable SPEEDILICIOUS to quantify the benefits to Subscriber of the Services. Such analytics data may include, but is not limited to, sales data, number of Visits or percentage of abandoned shopping carts. Such analytics data will be used for SPEEDILICIOUS internal purposes and for marketing purposes. The provision of such analytics data is at the sole discretion of Subscriber not to be unreasonably withheld.
3. Affiliate Program. As a Subscriber of the Services you are conditionally eligible to participate in the SPEEDILICIOUS Program as an Affiliate of SPEEDILICIOUS. The Program allows an Affiliate to earn a commission for referring potential Customers to SPEEDILICIOUS if such potential Customer subscribes to the SPEEDILICIOUS Services and qualifies as a Customer as a direct result of Affiliate's referral. The Program is governed by this Agreement, including Exhibit A, the Affiliate Program Terms, which are attached hereto as Exhibit A and are expressly incorporated herein. To participate in the Program you must register via the Flight Deck and affirmatively agree to the Affiliate Program Terms. Participation in the Program confirms your understanding of and agreement to the Affiliate Program Terms. If you do not agree to abide by the Affiliate Program Terms you will be deemed ineligible to participate in the Program.
4. Subscription Fees.
4.1 Fees. SPEEDILICIOUS will charge Subscriber the Subscription Fees stated in the Order. Unless Subscriber has made other arrangements, SPEEDILICIOUS will charge the credit card or other payment method agreed to by the parties provided in the Order or via the Flight Deck with or without invoice as follows: (i) for recurring fees, in advance, on or around the first day of each billing cycle and (ii) for nonrecurring fees (such as fees for overages) on or around the first day of the billing cycle that follows the date incurred. Unless otherwise agreed to in the Order or for a Special Offer (as defined below in Section 4.4), the billing cycle will be monthly, beginning on the Effective Date or as otherwise set forth in the Order. SPEEDILICIOUS may charge interest on overdue amounts at 1.5% per month (or the maximum allowable by law if such amount is less than 1.5%). SPEEDILICIOUS uses an automated system to notify Subscriber via email or the Flight Deck in the event that Subscriber's payment method of record fails. If Subscriber does not fulfill its payment obligation under this Agreement within seven (7) days after notification of failure and SPEEDILICIOUS staff has to manually engage Subscriber to collect payment, a collection fee of $50 per billing cycle payment due will be levied. If SPEEDILICIOUS brings a legal action to collect or engages a collection agency, Subscriber must also pay SPEEDILICIOUS' reasonable costs of collection, including attorney fees and court costs. All Subscription Fees are stated in and will be charged in U.S. Dollars. Subscriber must provide SPEEDILICIOUS accurate factual information to help SPEEDILICIOUS determine if any tax is due with respect to the Services, and if SPEEDILICIOUS is required by law to collect taxes on the provision of the Services, Subscriber must pay SPEEDILICIOUS the amount of the tax that is due or provide satisfactory evidence of Subscriber's exemption from the tax.
4.2 Fee Increases. Unless otherwise agreed to by the parties, at any time after the initial term, SPEEDILICIOUS may increase Subscription Fees at any time on at least 30 days advance written notice of such change.
4.3 Overages. If in any one billing period the number of Visits exceeds the Subscription level Subscriber has ordered, SPEEDILICIOUS will either (i) automatically upgrade Subscriber's Subscription to the service level that corresponds to Subscriber's current use of the Services or, (ii) SPEEDILICIOUS will suspend the Services for the remainder of the current billing cycle. Subscriber shall indicate to SPEEDILICIOUS how to handle excessive use of the Services in the Order. If Subscriber fails to select from the options described above, SPEEDILICIOUS reserves the right to make a selection on behalf of Subscriber.
4.4 Special Offers. From time to time SPEEDILICIOUS may make special offers available to potential or current Subscribers ("Special Offers"). These Special Offers may include additional services that require Subscriber to agree to a longer than standard Subscription Term in order to have access to the additional services. By accepting such Special Offer, Subscriber agrees that the Subscription Fee as set forth in the applicable Order is due in full immediately and is non-refundable. At the end of the Subscription Term of the Special Offer, Subscriber's Subscription will revert to a monthly fee at the then current price for such a Subscription. In the case where a Special Offer includes multiple Subscriber Sites: (i) the Subscriber must identify a primary Site; (ii) all Sites must be provisioned with the Services within the Subscription Term of the Special Offer; (iii) any site acceleration consultation applicable to the level of service the Subscriber has chosen is only available for the primary Site; (iv) SPEEDILICIOUS will provision each Site with the Services as quickly as possible using accepted industry practice but reserves the right, in its sole discretion, to spread out the provision of Services to the Sites as set forth in Section 3.8; and (v) Subscriber agrees that if they are eligible to provision multiple Sites, decommissioning a Site or terminating the Services on a particular Site, does not result in Subscriber's right to request SPEEDILICIOUS to provision an additional Subscriber Site with the Services..
5. Subscriber Obligations.
5.1 Subscriber Warranties. Subscriber represents and warrants that it (i) will comply with all applicable laws, statutes, regulations and ordinances and all obligations under this Agreement, (ii) will only use the Services for legitimate, internal (i.e., not for resale or wholesale purposes) business purposes, (iii) will not use the Services to transmit Spam, Malware, or excessive email, (iv) has the authority, rights, or permissions to use all Sites registered to the Services, to enter into this Agreement, and to perform its obligations hereunder, (v) will not use the Services to filter, screen, manage or censor Internet content for consumers without permission from the affected consumers and SPEEDILICIOUS' express prior written approval which may be withheld in SPEEDILICIOUS' sole discretion, (vi) will not store, transmit or distribute content using the Services that is libelous, obscene, excessively violent, scandalous or defamatory or violates the personal or intellectual property rights of any third party.
5.2 For the Services, Subscriber agrees to comply with the reasonable standards and protocols published on the Internet from time to time and adopted by the majority of Internet users.
5.3 Subscriber will defend, indemnify and hold SPEEDILICIOUS harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with any claims, demands, suits, or proceedings ("Claims") made or brought against SPEEDILICIOUS by a third party alleging or related to Subscriber's (i) violation of its obligations in this Section 5, or (ii) breach of its other obligations under the Agreement. SPEEDILICIOUS will promptly notify Subscriber in writing of any such claim and promptly tender the control of the defense and settlement of any such claim to Subscriber at its expense and with Subscriber's choice of counsel. SPEEDILICIOUS shall cooperate with Subscriber, at Subscriber's expense, in defending or settling such claim. Subscriber will not enter into any settlement or compromise of any such claim without SPEEDILICIOUS' prior consent, which shall not be unreasonably withheld. SPEEDILICIOUS may choose its own legal counsel to defend the claim, provided that this decision is promptly communicated to Subscriber. Subscriber must comply with SPEEDILICIOUS' reasonable requests for assistance and cooperation in the defense of the claim. Subscriber must pay expenses due under this Section 5.3 when incurred.
6. Intellectual Property Rights.
6.1 Subscriber. As between Subscriber and SPEEDILICIOUS, Subscriber or its licensors own all right, title, and interest in and to the Content. Subscriber consents to the use of Content by SPEEDILICIOUS solely to provide the Services and except for that limited use right, SPEEDILICIOUS obtains no rights under this Agreement to the Content.
6.2 SPEEDILICIOUS. The Services, Software and all related intellectual property rights are the exclusive property of SPEEDILICIOUS or its licensors. All right, title and interest in and to the Services and Software, any modifications, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks and all intellectual property rights in the Services and Software remain exclusively with SPEEDILICIOUS or its licensors. The Services and Software are valuable, proprietary, and unique, and Subscriber agrees to be bound by and observe the proprietary nature of the Services and Software. The Services and Software contain material that may be protected by patent, copyright or trade secret law, and by international treaty provisions. Subscriber may not remove any proprietary notice of SPEEDILICIOUS or any third party. All rights not granted to Subscriber in this Agreement are reserved to SPEEDILICIOUS. No ownership of the Services or Software passes to Subscriber. Except as otherwise expressly provided, SPEEDILICIOUS grants no express or implied right under SPEEDILICIOUS patents, copyrights, trademarks, or other intellectual property rights.
7. Protection and Restrictions.
7.1 Each party may disclose to the other Confidential Information and each party agrees not to use the other party's Confidential Information except in connection with its obligations under the Agreement or as may be required by law. The Receiving Party agrees not to disclose Confidential Information to a third party except as follows: (i) to its service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as protective as those stated in the Agreement, (ii) to law enforcement or government agency if required by a subpoena or other compulsory legal process or as otherwise required by law, provided that Receiving Party gives Disclosing Party reasonable notice in advance of such required disclosure, cooperates and assists in any attempts by the Disclosing Party to legally prevent or limit such disclosure, and complies with the terms of any protective order which is entered with regard to such disclosure, or (iii) in an action to enforce or defend its rights under this Agreement (subject to the terms of an appropriate protective order).
7.2 Subscriber will take all reasonable steps to safeguard the Services and Software to ensure that no unauthorized person has access and that no unauthorized copy, publication, disclosure or distribution, in any form is made. The Services and Software contain valuable, confidential information and trade secrets and unauthorized use or copying is harmful to SPEEDILICIOUS. Subscriber may not directly or indirectly transfer, assign, publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works based on the Services or Software or any part thereof. Subscriber may not reverse engineer (except as required by law in order to assure interoperability), decompile, translate, adapt, or disassemble the Services or Software, nor shall Subscriber attempt to derive the source code from the object code for the Software. Any third party software included in the Services may only be used in conjunction with the Services, and not independently from the Services. Subscriber may not, and shall not allow third parties to, publish, distribute or disclose the results of any benchmark tests performed on the Services without SPEEDILICIOUS' prior written approval.
8. Limited Warranty.
8.1 Limited Warranty. For the Subscription Term, SPEEDILICIOUS warrants that the Services will apply all relevant acceleration techniques to the Site. Any such failure of the Services caused by (i) any unauthorized modification of the Services, (ii) tampering with the Services, (iii) use of the Services inconsistent with the SPEEDILICIOUS web site, (iv) circumstances completely out of the control of SPEEDILICIOUS (i.e., Internet connectivity failure), or (v) a related breach of this Agreement shall void the warranty.
8.2 Warranty Disclaimer. SPEEDILICIOUS does not warrant that the Services will (i) noticeably (to the human eye) accelerate the Site, (ii) be free of defects or completely secure, (iii) satisfy Subscriber's requirements, (iv) operate without interruption or error, or (v) that the algorithms and/or Software used in the Services will be complete or accurate. EXCEPT AS EXPLICITLY STATED AND TO THE EXTENT ALLOWED BY LAW, THE SERVICES AND SOFTWARE ARE PROVIDED AS-IS. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES.
8.3 Inherent Risks. Subscriber acknowledges that there are risks inherent in Internet connectivity that could result in the loss of privacy, Confidential Information and property. Additionally, SPEEDILICIOUS does not and cannot control the flow of data to or from the SPEEDILICIOUS CDN or within any portion of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times actions or omissions of such third parties can impair or disrupt Subscriber's connections to the Internet (or portions thereof). SPEEDILICIOUS cannot guarantee that such events will not occur and, accordingly, except to the extent of the express warranty set forth in Section 8.1, SPEEDILICIOUS disclaims any and all liability resulting from, or related to, such events.
8.4 Caching Delay. SPEEDILICIOUS uses caching, among other techniques, to provide the Services. Depending on the settings at Subscriber's Origin and those related to the SPEEDILICIOUS Services, some of which may be changed by Subscriber via the Flight Deck, caching may result in a delay of changes made at the Origin being seen on the Site. Subscriber acknowledges and agrees that SPEEDILICIOUS is not responsible for any consequences of such delay, or for any failure of any cache-flushing functionality that may be available to Subscriber. Subscriber is solely responsible for checking that the publicly viewable version of the Site is as Subscriber intends or an acceptable variant thereof.
8.5 Sole Remedy. SPEEDILICIOUS will use reasonable efforts to remedy any significant non-conformance in the Services which is reported to SPEEDILICIOUS and that SPEEDILICIOUS can reasonably identify and confirm. SPEEDILICIOUS, at its discretion, will repair or replace any such non-conforming or defective Services, or refund a pro-rata portion of the unused Subscription Fees paid for the remainder of the current term. This paragraph sets forth Subscriber's sole and exclusive remedy and SPEEDILICIOUS' entire liability for any breach of warranty or other duty related to the Services.
9. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL SPEEDILICIOUS, ITS AFFILIATES, ITS LICENSORS OR RESELLERS BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO CLAIMS FOR LOSS OF DATA, GOODWILL, OPPORTUNITY, REVENUE, PROFITS, OR USE OF THE SERVICES, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, PRIVACY, NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE AND THIRD PARTY CLAIMS, EVEN IF SPEEDILICIOUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SPEEDILICIOUS' AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY SUBSCRIBER TO SPEEDILICIOUS FOR THE APPLICABLE SERVICES OVER THE ONE YEAR PERIOD PRIOR TO THE EVENT OUT OF WHICH THE CLAIM AROSE FOR THE SERVICES THAT DIRECTLY CAUSED THE LIABILITY. THESE DISCLAIMERS CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, SO SUCH DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO SUBSCRIBER.
10. Term and Termination; Suspension.
10.1 Term. The term of this Agreement will commence on the Effective Date and continue until the end of the Subscription Term and, unless otherwise terminated by either party, will automatically renew for successive renewal terms for one month, or as otherwise agreed to by the parties, unless either party provides written notice of nonrenewal at least 30 days prior to the end of the current term.
10.2. Subscriber Termination. Subscriber may terminate this Agreement at any time upon written notice to SPEEDILICIOUS, however, Subscriber is not entitled to a refund of any prepaid Subscription Fees for future billing cycles, nor is Subscriber entitled to a pro rata refund for the current billing cycle. Billing shall continue until Subscriber changes their DNS. Subscriber may terminate the Agreement for SPEEDILICIOUS' material breach after providing 30 days written notice if: (i) SPEEDILICIOUS fails to provide the Services as agreed and does not remedy the failure within five days of Subscriber's notice, or (ii) SPEEDILICIOUS fails to meet any other material obligation in the Agreement and does not remedy that failure within 30 days of Subscriber's written notice. Subscriber shall be entitled to a refund of any prepaid Subscriptions fees and a pro rata refund of Subscription Fees paid for the current billing cycle if Subscriber terminates the Agreement due to SPEEDILICIOUS' uncured breach.
10.3. SPEEDILICIOUS Termination. SPEEDILICIOUS may terminate this Agreement immediately on written notice for Subscriber's violation of the Agreement or upon 30 days written notice for SPEEDILICIOUS' convenience. If SPEEDILICIOUS terminates for cause, Subscriber is not entitled to any refund of prepaid Subscription Fees, nor is Subscriber entitled to a pro rata refund for the current billing cycle. If SPEEDILICIOUS terminates for convenience, Subscriber will be entitled to a refund of any prepaid Subscriptions Fees and a pro rata refund of Subscription Fees paid for the current billing cycle.
10.4. Effect of Termination. Upon termination by either party, Subscriber must cease using the Services and immediately point the DNS for Subscriber Sites away from SPEEDILICIOUS and both parties must destroy or return any Confidential Information of the other and certify in writing that all known copies thereof, including backup copies, have been destroyed. Sections 1, 5-9, 11, 13 and 15 shall survive the termination of this Agreement.
10.5 Suspension. SPEEDILICIOUS may suspend the Services without liability if: (i) SPEEDILICIOUS reasonably believes that the Services are being used (or have been or will be used) in violation of this Agreement, (ii) SPEEDILICIOUS discovers that Subscriber is, or is affiliated in any manner with, a person or entity who has used similar services abusively in the past, (iii) SPEEDILICIOUS determines that the security or proper function of the Services would be compromised due to, hacking, denial of service attacks or any other activities originating from or directed at Subscriber's network, (iv) Subscriber does not cooperate with SPEEDILICIOUS' reasonable investigation of any suspected violation of the Agreement, (v) SPEEDILICIOUS reasonably believes that suspension of Subscriber's Services is necessary to protect its network or its other customers, (vi) payment for the Services is overdue, or (vii) suspension is required by law. SPEEDILICIOUS will give Subscriber advance notice of suspension and a chance to cure the grounds for such suspension, unless SPEEDILICIOUS determines, in its sole discretion, that suspension on shorter or contemporaneous notice is necessary to protect SPEEDILICIOUS or its other customers from imminent and significant operational or security risk. If the suspension was based on Subscriber's breach of its obligations under the Agreement, or because SPEEDILICIOUS determines that such suspension is otherwise appropriate to prevent harm to SPEEDILICIOUS due to Subscriber's action or inaction, SPEEDILICIOUS may continue to charge Subscription Fees during the suspension. SPEEDILICIOUS reserves the right to determine in its sole discretion what method it uses to suspend or terminate the Services under this Section 10.
11. Access to Content.
11.1 Subscriber will not have access to its Content stored on the SPEEDILICIOUS CDN during a suspension or following termination.
11.2 The Services do not include a backup component and SPEEDILICIOUS shall have no responsibility for Subscriber Content. Any Content that is incidentally backed up may not be available to Subscriber so Subscriber agrees that it will maintain at least one additional current copy of any Content that may be stored on the SPEEDILICIOUS CDN somewhere other than on the SPEEDILICIOUS CDN.
11.3 SPEEDILICIOUS is not responsible to Subscriber for unauthorized access to Subscriber's Content or the unauthorized use of the Services unless due solely to SPEEDILICIOUS' failure to meet its security obligations as stated in the Agreement.
12. Third Party Products. The Services may include software products licensed from third parties. Such third parties have no obligations or liability to the Subscriber under this Agreement but are third party beneficiaries of this Agreement.
13. Export. The Services are subject to export controls administered by the United States and other countries. Export or diversion contrary to U.S. law is prohibited. U.S. law prohibits export or re-export of the Software or technology to specified countries or to a resident or national of those countries. It also prohibits export or re-export of the Software or technology to any person or entity on the U.S. Department of Commerce Denied Persons List, Entities List or Unverified List; the U.S. Department of State Debarred List; or any of the lists administered by the U.S. Department of Treasury, including lists of Specially Designated Nationals, Specially Designated Terrorists or Specially Designated Narcotics Traffickers. Subscriber represents and warrants that it will comply with the Export Controls as described above.
14.2 Subscriber acknowledges that as part of the Services, SPEEDILICIOUS will insert the SPEEDILICIOUS logo and a link to the SPEEDILICIOUS web site on the bottom of each Site that the Services are applied to.
15.1 Notices. Subscriber must provide any notice required in accordance with this Agreement via email or the Flight Deck. SPEEDILICIOUS' routine communications regarding the Services and any legal notices will be sent to the individual designated in the Order either electronically, by United States mail or by courier, except that SPEEDILICIOUS may give notice of an amendment to the Agreement by posting the notice on its web site, the Flight Deck, by email or on Subscriber's monthly invoice. Notices are deemed received as of the time delivered. SPEEDILICIOUS may periodically send Subscriber messages of an informational or advertising nature via email. Subscriber may choose to "opt-out" of receiving these messages by selecting the "opt-in" or "opt-out" link, as the case may be, at the foot of every such email. Subscriber acknowledges and agrees that by sending such email and "opting out" SPEEDILICIOUS may still send and Subscriber may still receive emails required for the proper conduct of the Services.
15.2 Assignment. Subscriber may not transfer any of Subscriber's rights to use the Services or assign this Agreement to another person or entity, without first obtaining prior written approval from SPEEDILICIOUS, including, in connection with a change of control or by operation of law. SPEEDILICIOUS may assign or transfer this Agreement in whole or in part without notice to or approval by Subscriber, including in connection with a change of control or by operation of law.
15.3 Choice of Law; Venue. Any dispute arising out of or relating to this Agreement or the breach thereof shall be governed by the federal laws of the United States and the laws of the State of California, USA for all claims, without regard to or application of choice of laws, rules or principles. Only if the Mandatory Arbitration clause of Section 15.4 is deemed to be null and void, then both parties hereby consent to the exclusive jurisdiction of the state and federal courts in California, USA, for all claims and both parties expressly waive any objections or defense based upon lack of personal jurisdiction or venue.
(i) Commencing Arbitration. A party who intends to seek arbitration must first send to the other a written notice of intent to arbitrate (a "Notice"). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the "Demand"). If Subscriber and SPEEDILICIOUS do not reach an agreement to resolve the claim within 30 days after the Notice is received, Subscriber or SPEEDILICIOUS may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA") IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE "Rules"), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by request to SPEEDILICIOUS. If Subscriber is required to pay a filing fee to commence an arbitration against SPEEDILICIOUS, then SPEEDILICIOUS will promptly reimburse Subscriber for its confirmed payment of the filing fee upon SPEEDILICIOUS' receipt of Notice that Subscriber has commenced arbitration along with a receipt evidencing payment of the filing fee, unless Subscriber's Demand is equal to or greater than $1,000, in which case Subscriber is solely responsible for the payment of the filing fee.
(ii) Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. Subscriber and SPEEDILICIOUS agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(iii) No Class Actions. SUBSCRIBER AND SPEEDILICIOUS AGREE THAT SUBSCRIBER AND SPEEDILICIOUS MAY BRING CLAIMS AGAINST THE OTHER ONLY IN SUBSCRIBER OR SPEEDILICIOUS' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, SUBSCRIBER AGREES THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
(iv) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of California in conducting the arbitration. Subscriber acknowledges that these terms and its use of the Services evidences a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.
(v) Equitable Relief. The foregoing provisions of this Mandatory Arbitration section do not apply to any claim in which SPEEDILICIOUS seeks equitable relief of any kind. Subscriber acknowledges that, in the event of a breach of this Agreement by SPEEDILICIOUS or any third party, the damage or harm, if any, caused to Subscriber will not entitle Subscriber to seek injunctive or other equitable relief against SPEEDILICIOUS, including with respect to any Content, and Subscriber's only remedy shall be for monetary damages, subject to the limitations of liability set forth in this Agreement.
15.5 Force Majeure. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party's reasonable control, including, a significant failure of the Internet, fire, flood, acts of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, or civil or military authority.
15.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto regarding the subject matter contained herein and the parties acknowledge that they have not relied on any promise, representation, or warranty, express or implied, that is not contained in this Agreement. SPEEDILICIOUS is not obligated under any other agreements unless they are in writing and signed by an authorized representative of SPEEDILICIOUS.
15.7 Waiver; Modification. Any waiver or modification of this Agreement shall only be effective if it is in writing or posted by SPEEDILICIOUS at: http://www.SPEEDILICIOUS.com/subscription-agreement/.
15.8 Severability. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as to reasonably affect the intention of the parties.
15.9 Priority. If there is a conflict between the terms of the Order and the Agreement, the Agreement will govern.
15.10 Independent Contractors. SPEEDILICIOUS is an independent contractor and neither party is an agent of the other and neither party has the right to bind the other on any agreement with a third party.
15.11 Headings; Captions. The headings and captions used herein are for convenience only and are not part of the Agreement.
SPEEDILICIOUS AFFILIATE PROGRAM TERMS
For the purposes of the SPEEDILICIOUS Affiliate Program Terms ("Terms"), the following terms will have the indicated meanings. Any other capitalized terms shall have the meaning as given in the Agreement.
"Account" means the Flight Deck functionality dedicated to managing Affiliate's participation in the Program.
"SPEEDILICIOUS Value" means an electronic currency or "stored value" issued by SPEEDILICIOUS to an Account that may be redeemed for the equivalent in U.S. dollars according to the provisions of these Terms.
"Link" means a link to the SPEEDILICIOUS web site that is placed on an Affiliate's web site or on direct communication channels and that utilizes the Required Link Formats.
"Required Link Formats" means the special link formats provided to Affiliate by SPEEDILICIOUS which formats must be used when linking users from Affiliate's Site to the SPEEDILICIOUS registration form on the SPEEDILICIOUS web site.
2. Scope of Program
(a) Terms: Affiliate acknowledges that it has read and agreed to these Terms. Affiliate acknowledges that it independently has evaluated the desirability of participating in the Program and is not relying on any representation, guarantee or statement other than as set forth in these Terms.
(b) Reserved Rights: SPEEDILICIOUS reserves the right: (i) to solicit orders directly from and to sell directly to any potential Customer; and (ii) to appoint other Affiliates on a non-exclusive basis to promote the SPEEDILICIOUS Service.
(c) Privity: Affiliate shall not be authorized to conduct any negotiations on behalf of SPEEDILICIOUS, conclude any contract on SPEEDILICIOUS' behalf or make any representation, warranty, promise or take any other action binding upon SPEEDILICIOUS without SPEEDILICIOUS' prior written consent. It is confirmed and agreed that in any event, SPEEDILICIOUS will, at its sole discretion, determine whether or not to enter into any SPEEDILICIOUS Subscription Agreement with a potential Customer.
3. Links on Site
SPEEDILICIOUS will provide Affiliate with the Link for Affiliate to include on its Site and/or direct communication channels (i.e., email or webinars), which will link a user of Affiliate's Site or receiver of direct communications to the SPEEDILICIOUS registration form on the SPEEDILICIOUS web site. SPEEDILICIOUS may also provide Affiliate with guidelines and graphical artwork to use in linking to the SPEEDILICIOUS registration form. To permit accurate tracking, reporting, and Commission accrual, SPEEDILICIOUS will provide Affiliate with Required Link Formats, which must be used in all links between Affiliate's Site and/or direct communication channels and the SPEEDILICIOUS web site.
(a) Compensation: In consideration for the services to be rendered by Affiliate, SPEEDILICIOUS shall pay to Affiliate the compensation as set forth in this Section 5 and in the payment schedule attached hereto as Attachment A, and expressly incorporated herein ("Commission"). Commissions will only be paid for users that are directed to the SPEEDILICIOUS web site through Links on Affiliate's Site or direct communication channels and that satisfy the definition of a Customer. For purposes of the Agreement a "Customer" is an individual or entity who fulfills all the requirements to subscribe to the Services as described in the SPEEDILICIOUS Subscription Agreement through an immediately sequential navigation after the individual clicks-through directly to the SPEEDILICIOUS registration form from a Link on Affiliate's Site and/or direct communication channels including, without limitation: (i) completing and submitting to SPEEDILICIOUS the SPEEDILICIOUS registration form; (ii) agreeing to the SPEEDILICIOUS Subscription Agreement, including without limitation, submitting a credit or debit card number that is not currently associated with an existing Account; and (iii) paying the then-applicable Subscription Fee for the first month after the end of the trial-period of such Customer's use of the Services through the credit or debit card associated with the individual's or entity's Subscription. SPEEDILICIOUS has no obligation to pay Affiliate a Commission for any individuals or entities who register for the SPEEDILICIOUS Service that do not fit the above definition of a Customer. Affiliate acknowledges that SPEEDILICIOUS shall not be obligated to make any Commission payment hereunder if Affiliate has breached any of the terms and conditions of the Agreement.
(b) Multiple Referring Parties: If a user is directed to the SPEEDILICIOUS web site by following a Link on Affiliate's Site and is also directed to the SPEEDILICIOUS web site by following a Link on another SPEEDILICIOUS Affiliate Site, a Commission will only be paid to the Affiliate whose Link was utilized by the Customer closest in time to subscribing to the SPEEDILICIOUS Service and qualifying as a Customer.
(c) Date Commission Earned: The Commission on a given order shall be deemed earned when SPEEDILICIOUS receives a payment in full from the Customer.
(d) Payment of Commission: All amounts payable by SPEEDILICIOUS pursuant to this Section 5 shall be credited to Affiliate's Account within 30 days after the date SPEEDILICIOUS receives payment in full from a Customer.
(e) Disputes: SPEEDILICIOUS has final authority to resolve disputes regarding Commissions. If Affiliate has questions about SPEEDILICIOUS' Commission payment, within 30 days after redemption of SPEEDILICIOUS Value of such payment, Affiliate must send SPEEDILICIOUS a notice containing all of the following information: (i) Affiliate's name and address; (ii) the amount of the disputed payment; (iii) the period of time covered by the payment; and (iv) a description and explanation of the alleged discrepancy. SPEEDILICIOUS shall have no obligation to address any alleged discrepancy with respect to an Affiliate's Commissions not reported to SPEEDILICIOUS within the 30 day notice period.
(f) Commission Charge-Back: SPEEDILICIOUS has the right to set discounts and make other allowances and adjustments to the Subscription Fee, provide refunds to Customers and write-off as bad debts overdue Customer Accounts. In each case, SPEEDILICIOUS shall charge back to Affiliate's Account any amounts previously paid or credited to it with respect to such discounts, allowances, adjustments, refunds or bad debts.
(a) SPEEDILICIOUS Account: SPEEDILICIOUS will establish an Account for Affiliate accessible through the Flight Deck, at no cost to Affiliate. The Account is accessible with the same login and password used to access the Flight Deck. SPEEDILICIOUS will pay Commissions in the form of SPEEDILICIOUS Value into Affiliate's Account.
(b) Redemption of SPEEDILICIOUS Value: Affiliate may redeem any SPEEDILICIOUS Value in its Account for a payment in U.S. dollars to Affiliate's bank account via an electronic transfer ("Direct Deposit") or to a Affiliate's Visa or MasterCard credit card or debit card account issued by a bank in the domestic United States. Rules for any such transfer, including such limitations, fees, terms and conditions as may apply at the time, are located on the SPEEDILICIOUS web site. SPEEDILICIOUS may not redeem SPEEDILICIOUS Value if (a) SPEEDILICIOUS determines in its sole discretion that there is fraud, an error or another circumstance such that Affiliate is not entitled to the SPEEDILICIOUS Value or its redemption; or (b) the SPEEDILICIOUS Value to be redeemed represents promotional, free, or discounted SPEEDILICIOUS Value. SPEEDILICIOUS reserves the right to require confirmation of identification and authorization before redeeming SPEEDILICIOUS Value or transferring funds to Affiliate's credit or debit card or bank account. To process a Direct Deposit or a Visa or MasterCard transfer, Affiliate must provide SPEEDILICIOUS with certain bank or card account information. If Affiliate provides inaccurate or incomplete information, Affiliate may lose the amount of the transfer. SPEEDILICIOUS shall have no responsibility to refund or re-credit Affiliate's Account funds lost due to erroneous bank or personal information that Affiliate provides to SPEEDILICIOUS. Any redemptions made by Affiliate from its Account are final and are not reversible.
(c) Taxes: SPEEDILICIOUS may withhold from payments to Affiliate under these Terms any withholding taxes required to be withheld by SPEEDILICIOUS under the laws of the United States. Such amounts shall be paid to the appropriate taxing authority. Affiliate acknowledges and agrees that it is obligated to report as income all compensation received by SPEEDILICIOUS pursuant to these Terms. Affiliate agrees to and acknowledges the obligation to pay any applicable self-employment and other taxes on such income.
Affiliate may use its Account to access information about the number of Customers Affiliate's Site and/or direct communication channels has generated and continuing Customers. Affiliate is solely responsible for reporting to SPEEDILICIOUS when Affiliate meets certain thresholds that would entitle Affiliate to move into a different tier of compensation as defined in Attachment A. SPEEDILICIOUS has no obligation to track how many Customers Affiliate's Site has generated.
7. Limited License
SPEEDILICIOUS grants Affiliate a limited, non-exclusive, revocable, non-assignable, non-transferable, not sublicenseable royalty-free license to display Links and Graphics (as defined below) on its Site or in direct communication channels, solely in connection with the exercise of Affiliate's rights under these Terms. SPEEDILICIOUS also grants to Affiliate a nonexclusive right to use the name "SPEEDILICIOUS" (the "Trademark") solely to identify the SPEEDILICIOUS Service or to describe the SPEEDILICIOUS Service on Affiliate's Site or in direct communication channels. In addition, any uses of the Trademark and Graphic are subject to SPEEDILICIOUS' Trademark & Graphic Guidelines attached hereto as Attachment B, and expressly incorporated herein.
Affiliate may not issue any press release with respect to these Terms or Affiliate's participation in the Program without prior written approval of SPEEDILICIOUS; such action may result in termination from the Program. SPEEDILICIOUS may make available to Affiliate a small graphic image that identifies Affiliate's Site as a Program participant ("Graphic"). SPEEDILICIOUS may modify the text or graphic image of this notice from time to time. In addition, Affiliate may not in any manner misrepresent or embellish the relationship between SPEEDILICIOUS and Affiliate, or express or imply any relationship between SPEEDILICIOUS and Affiliate or any other person or entity except as expressly permitted by this Agreement.
Affiliate grants SPEEDILICIOUS the right to list Affiliate's name and the name of Affiliate's Site on the SPEEDILICIOUS web site and in promotional and marketing literature.
8. Obligations Regarding Affiliate's Site
Affiliate is solely responsible for:
* the development, operation and maintenance of Affiliate's Site;
* all materials and content that appear on Affiliate's Site including, without limitation, ensuring that materials posted on Affiliate's Site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights) and are not libelous or otherwise illegal; and
SPEEDILICIOUS disclaims all liability for these matters and will not be responsible for any of the foregoing. Affiliate agrees to indemnify and hold SPEEDILICIOUS harmless from all damages, claims, fees (including attorneys' fees) and expenses relating to the foregoing.
9. Improper Accrual of Commissions
Affiliate agrees not to fraudulently or improperly generate Customers in order to artificially inflate its Commissions hereunder either manually, through any automatic device, robots, mechanism, process or otherwise or to enlist any third party to do so on Affiliate's behalf. SPEEDILICIOUS shall have the right at any time to request and Affiliate agrees to promptly provide SPEEDILICIOUS with information regarding the placement and use of Links on Affiliate's Site.
Affiliate shall defend and/or settle and pay damages awarded pursuant to any third party claim brought against SPEEDILICIOUS that would constitute a breach of any warranty, representation, or covenant made or any other obligation undertaken by Affiliate pursuant to these Terms. SPEEDILICIOUS will promptly notify Affiliate in writing of any such claim and promptly tender the control of the defense and settlement of any such claim to Affiliate at its expense and with Affiliate's choice of counsel. SPEEDILICIOUS shall cooperate with Affiliate, at Affiliate's expense, in defending or settling such claim. Affiliate will not enter into any settlement or compromise of any such claim without SPEEDILICIOUS' prior consent, which shall not be unreasonably withheld. SPEEDILICIOUS may choose its own legal counsel to defend the claim, provided that this decision is promptly communicated to Affiliate. Affiliate must comply with SPEEDILICIOUS' reasonable requests for assistance and cooperation in the defense of the claim. Subscriber must pay expenses due under this Section 10 when incurred.
ATTACHMENT A: PAYMENT SCHEDULE
ATTACHMENT B: TRADEMARK & GRAPHIC GUIDELINES
* Affiliate may not change the proportion, color or font of the Trademark or Graphic (together, the "IP"), or otherwise alter the IP in any manner.
* Affiliate may not display the IP in any manner that implies sponsorship or endorsement by SPEEDILICIOUS, except of your involvement in the Program.
* Affiliate may not use the IP to disparage SPEEDILICIOUS, its products or services, or in a manner which, in SPEEDILICIOUS' reasonable judgment, may diminish or otherwise damage SPEEDILICIOUS' goodwill in the IP.
* Affiliate may not display the IP on its Site if it contains or displays adult content or a site that promotes illegal activities, gambling, or the sale of tobacco or alcohol to persons under twenty-one (21) years of age. Affiliate agrees to discontinue immediately its display of the IP, and any other SPEEDILICIOUS intellectual property if at any time after entering into this Agreement Your Site contains or displays adult content or promotes any of the above-referenced activities.
* The IP must appear by itself, with reasonable spacing (at least the height of the IP) between each side of the IP and other graphic or textual elements.