Birst, Inc. ("Birst") Online Subscription Agreement

TERMS OF USE:

BY CHECKING THE BOX NEXT TO THE STATEMENT “I ACCEPT THE BIRST TERMS OF SERVICE” AND CLICKING ON THE “SIGN UP NOW” BUTTON DISPLAYED AS PART OF THE REGISTRATION PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF BIRST’S ONLINE SERVICES (THE "SERVICES"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICES.

Your registration for, or use of, the Services shall be deemed to be your agreement to abide by this Agreement including any materials available on the Birst website incorporated by reference herein, including but not limited to Birst’s registration and order process, privacy and security policies.

Birst's privacy policies may be viewed at http://www.birst.com/privacy-policy. Birst reserves the right to modify its privacy policies in its reasonable discretion from time to time. Note that because the Services are a hosted, online application, Birst occasionally may need to notify all users of the Services of important announcements regarding the operation of the Services.

1. Definitions

As used in this Agreement and in any Order Form now or hereafter associated herewith:

"Agreement" means these online terms of use, any online Order Form, and any materials available on the Birst website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Birst from time to time in its sole discretion;

"Authorized User(s)" mean you and anyone you authorize to use the Services when you supply user identifications to Birst;

"Customer Data" means any data, information or material provided or submitted by you to the Services in the course of using the Services;

"Effective Date" means the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed;

"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;

"Order Form(s)" means the form evidencing the initial subscription for the Services and any subsequent order forms submitted online specifying, among other things, the service offering selected, the number of additional licenses, if any, the amount of additional storage, if any, and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail);

"Birst" means Birst, Inc., a Delaware corporation, having its principal place of business at 251 Kearny Street, Suite 801 , San Francisco , CA 94108;

"Services" mean the hosted data integration, aggregation and reporting capabilities including all of Birst’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 you by Birst in providing the Services and any audio and visual information, documents, software, products and services contained or made available to you in the course of using the Services.

2. Services and Restrictions

Subject to the terms and conditions of this Agreement, Birst grants to you a non-exclusive, non-transferable, right to use the Services up the maximum number of members and the maximum storage space permitted on the Order Form including any enhanced functionality or additional services and selected on the Order Form (collectively referred to as “Selected Services”) as you may update from time to time by executing a new Order Form. All rights not expressly granted to you are reserved by Birst. You acknowledge that Birst’s provision of the Services is dependent in part on each Authorized User's compliance with the terms of this Agreement.

You shall not directly or indirectly, (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the Services in any way; (ii) reverse engineer, decomplile, disassemble or otherwise attempt to discover the source code, object code, or any software, documentation or data related to the Services, (iii) modify or make derivative works based upon the Services; (iv) copy or create Internet "links" to the Services or "frame" or "mirror" any of the Services; or (v) access the Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Services, or (c) copy any ideas, features, functions or graphics of the Services.

3. Your Responsibilities

You are responsible for all activity occurring under your User accounts, including but not limited to uploading any of your data onto the Services. You shall: (i) use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Services, including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws. You shall not when using the Services (i) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (iii) attempt to gain unauthorized access to the Services or its related systems or networks.

Birst is not responsible to you for unauthorized access to your data or the unauthorized use of the Services. You are responsible for the use of the Services by any person to whom you have given access to the Services, and any person who gains access to your data, even if you did not authorize such use.

You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services. You shall also be responsible for maintaining the security of the Equipment, your User account, Users passwords and files, and for all uses of your User account or the Equipment with or without your knowledge or consent. Birst reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

You must cooperate with Birst's reasonable investigation of Services' outages, security problems, and any suspected breach of the Agreement. You shall: (i) notify Birst immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Birst immediately and use reasonable efforts to stop immediately any copying or distribution of the Services that is known or suspected by you or your Users; and (iii) not impersonate another Birst user or provide false identity information to gain access to or use the Services.

You shall indemnify and hold Birst, its licensors and each such party'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 use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Birst (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Birst of all liability and such settlement does not affect Birst’s business or Services); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.

4. Your Account Information and Data

Birst does not own any data, information or material that you submit to the Services in the course of using the Services ("Customer Data"). You, not, Birst, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Birst shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
5. Birst’s Intellectual Property Ownership

Birst alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Services (or any underlying technology or content within the Services) and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, the technology used by the Services, or the Intellectual Property Rights owned by Birst. The Birst name, the Birst logo, and the product names associated with the Services are trademarks of Birst or third parties, and no right or license is granted to use them.

6. Charges and Payment of Fees

When applicable, you shall pay Birst the then applicable fees for the Services as noted on your most recent Order Form (the “Fees”). You are responsible for keeping your billing and other account information up to date. You must pay when due the fees for the Services stated in the Order Form or other agreement between us. The initial charges will be equal to the current number of total Selected Services on the Order Form. Payments must be made monthly in advance unless otherwise mutually agreed upon in an Order Form. All payment obligations are non-cancelable and all amounts paid are nonrefundable. You must provide Birst with valid credit card or approved purchase order information as a condition to signing up for the Services. You may add or delete Selected Services by executing an additional online Order Form. Added Selected Services will be subject to the following: (i) added Selected Services will be coterminous with the preexisting Order Form; (ii) the applicable license fee for the added Selected Services will be the then current, generally applicable license fee; and (iii) Selected Services added in the middle of a billing month may be charged for partial use for that billing month. Birst reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.

7. Billing and Renewal

Birst charges and collects in advance for use of the Services. When applicable, Birst will automatically renew and bill your credit card each month. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Birst’s net income. You agree to provide Birst with complete and accurate billing and contact information. This information includes your legal name, street address, e-mail address, and name and telephone number of an authorized billing contact. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Birst reserves the right to terminate your access to the Services in addition to any other legal remedies. Unless Birst in its discretion determines otherwise, you will be billed in U.S. dollars and subject to U.S. payment terms.
8. Non-Payment and Suspension

In addition to any other rights granted to Birst herein, Birst reserves the right to suspend or terminate this Agreement and your access to the Services if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for the Services during any period of suspension. If you or Birst initiates termination of this Agreement, you will be obligated to pay the balance due on your account. You agree that Birst may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. Birst reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Services. You agree and acknowledge that Birst has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.

9. Termination

This Agreement commences on the Effective Date and shall continue month to month. Either party may terminate this Agreement by notifying the other party in writing (email is sufficient) at least five (5) business days prior to the end of the month. You agree and acknowledge that Birst has no obligation to retain the Customer Data, and may delete such Customer Data, within 5 days after termination.

10. Termination for Cause

Birst, in its sole discretion, may terminate your password, account or use of the Services if you breach or otherwise fail to comply with this Agreement upon notice to you (email is sufficient). In addition, Birst may terminate a free account at any time in its sole discretion. Birst may allow you thirty days to cure your failure to pay any outstanding fees prior to terminating this Agreement. You agree and acknowledge that Birst has no obligation to retain the Customer Data, and may delete such Customer Data within 30 days after the termination.

11. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Services and that your billing information is correct.

12. Disclaimer of Warranties

BIRST AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES. BIRST AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES WILL MEET YOUR 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 YOU THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES IS PROVIDED TO YOU 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 BIRST AND ITS LICENSORS.

BIRST’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BIRST IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

13. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS 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 THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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 you.

14. Export Control

You acknowledge and agree that the Birst’s Services 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, 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 By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of an embargoed country or designated national. You agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. ??This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774. Birst and its licensors make no representation that the Services is appropriate or available for use in other locations. If you use the Services from outside the United States of America you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Services contrary to United States law is prohibited.

15. Notice

Birst may give notice by means of a general notice on the Services, electronic mail to your e-mail address on record in Birst’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in Birst’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Birst (such notice shall be deemed given when received by Birst) at any time by any of the following: letter sent by confirmed facsimile to Birst at the following fax number: (415) 762-4115; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Birst at the following address: Birst, Inc., 251 Kearny St. Suite 801, San Francisco, CA 94108, addressed to the attention of: Customer Service.

16. General

Birst reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement on the Services. You are responsible for regularly reviewing this Agreement. Continued use of the Services after any such changes shall constitute your consent to such changes. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Birst’s prior written consent. Birst may transfer and assign any of its rights and obligations under this Agreement without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Birst in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.