This Premium Subscriber Agreement (the “Subscriber Agreement”) is between Holistic Prosperity, Inc.,
a Delaware corporation (“Holistic Prosperity”) and the individual agreeing to these terms (“Customer”). This
Subscriber Agreement governs Customer’s access to Holistic Prosperity's Archetypal Explorer
service (the “Service”) and its associated applications and website.
By clicking “I Agree,” attaching this
Subscriber Agreement to a purchase order or similar order form, or using the Service as a paid subscriber,
Customer agrees to the terms of this Subscriber Agreement.
The Service. Customer
may access and use the Services in accordance with this Subscriber
Agreement and Holistic Prosperity’s Acceptable Use Policy.
Holistic Prosperity
may update or modify the Services from time to time. If, in Holistic Prosperity’s reasonable judgment, any
such modification to the Service materially reduces the Service’s functionality, Holistic Prosperity will
inform Customer via the email address associated with Customer’s account no less than twenty (20) days prior
to such change.
Holistic Prosperity will use industry standard technical and organizational security measures in
connection with the storage, processing and transfer of Customer Data that are designed to protect the
integrity of Customer Data and to guard against the unauthorized or unlawful access to, use of or
processing of such Customer Data. For purposes hereof, the term “Customer Data” shall mean the
structured data and any files or attachments submitted to the Service by Customer, as well as the
account and contact information submitted to the Service by Customer.
Holistic Prosperity will use reasonable efforts, consistent with standard industry practices, to ensure
that the Service does not contain any viruses, backdoors, Trojans, or other computer code
that is designed to disrupt, disable or harm the operation of the Service.
Customer Obligations.
- Administration of Customer’s Account. Customer has the
ability to access, monitor, use, export and disclose all content posted by Customer. Customer is
responsible for: (i) maintaining the confidentiality of
passwords and account; (ii) ensuring that Customer’s use of the Service complies with this
Subscriber Agreement.
Holistic Prosperity shall not be held liable for any actions on the part of Customer.
- Customer Conduct; Compliance. Customer is responsible for use of the Service
and for their compliance with Holistic Prosperity’s
Acceptable
Use Policy. The Service is not authorized for use by
persons under the age of 13 and Customer will ensure that it does not allow any person under 13 to
use the Service. Customer will promptly notify Holistic Prosperity if it becomes aware of any
unauthorized access to Customer’s account or the Service.
- Restrictions. Customer will not: (i) rent, sell, resell or lease the Service to any
third party; (ii) use the Service for any purpose where either the use or the failure of the Service
might lead to personal injury, death or physical damage; or (ii) disassemble, decompile or reverse
engineer the Service or attempt or assist anyone else to do so, unless such restriction is
prohibited by law.
- Suspension. Holistic Prosperity may suspend the account of
any Customer who: (i) violates this Subscriber Agreement or Holistic Prosperity’s
Acceptable Use Policy; or (ii) is using the Service in a
manner that Holistic Prosperity reasonably believes may cause a security risk, a disruption to
others’ use of the Service, or liability for Holistic Prosperity.
Customer’s Use of Third Party Services. Holistic Prosperity does not warrant or support
any third party service (e.g., a service that utilizes the Holistic Prosperity's API in
connection with
Customer’s use of the Service) and will not be responsible for any act or omission on the part of such third
party or its service.
Intellectual Property Rights.
- Limited License to Use Customer Content. Customer hereby grants to Archetypal
Explorer a limited, non-exclusive and non-transferable (except in connection with the sale or
transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit
and display content submitted to the Service by the Customer (the “Customer Content”)
for the limited purpose of (i) providing the Service and associated customer support to Customer;
(ii) displaying Customer Content; and (iii) analyzing and improving the
Service.
- Reservation of Rights. Except as expressly set forth herein, this Subscriber
Agreement does not (i) grant Holistic Prosperity any rights or interest in or to the Customer
Content or any Customer Intellectual Property; or (ii) grant Customer any rights or interest in or
to the Service or any Holistic Prosperity Intellectual Property. For purposes hereof, the term
“Intellectual Property” shall mean any current or future worldwide rights under any
patent, copyright, trademark, or trade secret; any moral rights or any similar rights.
- Use of Customer Suggestions. Holistic Prosperity may incorporate into the Service
any suggestions or feedback received from Customer without any obligation to Customer and any such
modifications to the Service shall be the sole and exclusive property of Holistic Prosperity.
Holistic Prosperity may also share and publish aggregate, anonymized data about the use of our
Service by our customers.
- Holistic Prosperity Customer List. Holistic Prosperity may include Customer’s name
in a list of Holistic Prosperity’s Customers online and in print and electronic marketing materials,
if Customer gives express permission to Holistic Prosperity to do so.
Fees and Payment. Fees are non-refundable except as required by law or as explicitly set
forth herein. Customer will pay all applicable fees when due and, if such fees are being paid via credit
card or other electronic means, Customer authorizes Holistic Prosperity to charge such fees using Customer’s
selected payment method. By default, customer accounts are set to auto-renew and Holistic Prosperity may
automatically charge Customer for such renewal on or after the renewal date associated with Customer’s
account unless Customer has cancelled the Service prior to its renewal date. Holistic Prosperity may revise
fee rates for the Service from time to time and will provide Customer with
email notice of any changes in fees at least thirty (30) days prior to Customer’s Service renewal date.
Customer is responsible for providing complete and accurate billing information to Holistic Prosperity.
Holistic Prosperity may suspend or terminate Customer’s use of the Service if fees become past due. Customer
is responsible for all taxes (excluding taxes on Holistic Prosperity’s net income) and Holistic Prosperity
will charge tax when required to do so by law.
Term and Termination. This Subscriber Agreement will remain in effect until Customer
terminates its subscription to the Service or until this Subscriber Agreement is otherwise terminated as
provided for herein. Customer may terminate this Subscriber Agreement at any time. In addition, either party
may terminate this Subscriber Agreement if: (a) the other party is in material breach and fails to cure such
breach within twenty (20) days following receipt of written notice from the non-breaching party; (b) the
other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings
are not dismissed within 90 days. In the event that this Subscriber Agreement is terminated, (i) the rights
granted to Customer pursuant to this Subscriber Agreement (except as specifically set forth in this section)
will cease immediately; and (ii) any premium features provided to Customer will cease to be provided. The
following sections will survive expiration or termination of this Subscriber Agreement: Sections 4(b) and
(c), 6-9, and 11.
Confidentiality.
- Confidentiality. During the course of their performance under this Subscriber
Agreement, each party may make available to the other party information that is not generally known
to the public and at time of disclosure is either identified as, or should reasonably be understood
by the receiving party to be, proprietary or confidential (the “Confidential Information”).
Confidential Information shall include, but shall not be limited to: business plans, strategies,
forecasts, projects and analyses; financial information and fee structures; business processes,
methods and models; employee, customer and supplier information; sales and marketing information.
With respect to the Customer, Confidential Information also includes the Customer Content.
- Obligations. Except as otherwise expressly permitted under this Services Agreement,
with the express prior written consent of the disclosing party, or as required by law, the receiving
party will not disclose, transmit or otherwise disseminate to a third party any Confidential
Information of the disclosing party. The receiving party will use the same care and discretion with
respect to the Confidential Information received from the disclosing party as it uses with its own
similar information, but in no event less than a reasonable degree of care. Holistic Prosperity may
disclose Customer’s Confidential Information to its employees, consultants, agents or advisors who
have a strict need to know such Confidential Information solely for the purpose of performing
Holistic Prosperity’s obligations under this Agreement and only to those who are obligated to
maintain the confidentiality of such Confidential Information upon terms at least as protective as
those contained in this Agreement.
- Exclusions. The obligations set forth in Section 7(b) above shall not apply to any
Confidential Information that the receiving party can demonstrate: (i) the receiving party
possessed, without any obligation of confidentiality, prior to disclosure by the disclosing party;
(ii) is or becomes publicly available without breach of this Agreement by the receiving party; (iii)
is or was independently developed by the receiving party without the use of any Confidential
Information of the disclosing party; or (iv) is or was received by the receiving party from a third
party that does not have an obligation of confidentiality to the disclosing party or its affiliates.
Either party may disclose the terms of this Agreement to potential parties to an acquisition or
similar transaction to facilitate due diligence and closing of the transaction, provided that
potential party is subject to written non-disclosure obligations and limitations on use only for the
prospected transaction. The receiving party may disclose Confidential Information of the disclosing
party if legally required to do so in connection with any legal or regulatory proceeding, provided,
however, that in such event the receiving party will, if lawfully permitted to do so, notify the
disclosing party within a reasonable time prior to disclosure so as to allow the disclosing party an
opportunity to seek appropriate protective measures.
Indemnification.
- By Customer. Customer hereby agrees to indemnify, defend and hold harmless
Holistic Prosperity, its licensees and licensors, and their respective employees, contractors,
agents, officers and directors (together, the “Holistic Prosperity Affiliates”), from
and against any and all liabilities, damages, obligations, losses, costs and expenses (including but
not limited to reasonable attorney’s fees) (together, the “Losses”) arising from or as a result of
any claim by a third party against Holistic Prosperity or the Holistic Prosperity Affiliates
regarding: (i) use of or access to the Service by Customer in violation of this
Subscriber Agreement or our Acceptable Use Policy; or (ii) any
data or Customer Content transmitted or received through Customer’s account.
- By Holistic Prosperity. Holistic Prosperity hereby agrees to indemnify, defend and
hold harmless Customer
from and against any and all Losses arising from or as a result
of any claim by a third party against Customer or the Customer Affiliates to the extent based on an
allegation that the Service or Holistic Prosperity’s technology used to provide the Service
infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the
third party. In no event will Holistic Prosperity have any obligations or liability under this
section arising from: (i) use of the Service in a modified form or in combination with materials not
furnished by Holistic Prosperity; (ii) use of any third party app developed using Archetypal
Explorer’s API; or (iii) any content, information, or data provided by Customer, or other
third parties. THIS INDEMNITY IS CUSTOMER’S ONLY REMEDY UNDER THIS SUBSCRIBER AGREEMENT FOR ANY
VIOLATION BY HOLISTIC PROSPERITY OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
- Infringement Claims. If the Service becomes, or in Holistic Prosperity’s reasonable
judgment is likely to become, the subject of a claim of infringement, then Holistic Prosperity may:
(i) obtain the right, at Holistic Prosperity’s expense, for Customer to continue using the Service;
(ii) provide a non-infringing functionally equivalent replacement; (iii) modify the Service so that
it is no longer infringing. If Holistic Prosperity, in its sole and reasonable judgment, determines
that none of the above options are commercially reasonable, then Holistic Prosperity may suspend or
terminate Customer’s use of the Service and provide Customer with a pro rata refund of prepaid fees.
- Process. The party seeking indemnification will provide prompt notice concerning
the existence of an indemnifiable claim and cooperate fully with the indemnifying party in defending
the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to
indemnification and shall affect the indemnifying party’s obligations hereunder only to the extent
that the indemnifying party’s rights are materially prejudiced by such failure or delay. The
indemnifying party will have full control and authority over the defense of any claim; provided,
however, that: (i) the indemnified party may join in the defense at its own expense using counsel of
its choice; and (ii) any settlement requiring the party seeking indemnification to admit liability
or make any financial payment will require such party’s prior written consent, not to be
unreasonably withheld or delayed.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN
CONNECTION WITH THEIR RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY OR
THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE UNDER THIS SUBSCRIBER
AGREEMENT FOR (I) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES; OR (II)
LOSS OF USE, DATA, BUSINESS REVENUES, PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), GOODWILL, OR OTHER
INTANGIBLE LOSSES. UNDER NO CIRCUMSTANCES WILL HOLISTIC PROSPERITY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR
INJURY RESULTING
FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT OR THE
INFORMATION CONTAINED THEREIN BY ANY THIRD PARTY. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF
WHETHER A PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS
ESSENTIAL PURPOSE.
EXCEPT IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL HOLISTIC PROSPERITY
BE LIABLE TO
CUSTOMER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT
EXCEEDING THE AMOUNT PAID BY CUSTOMER TO HOLISTIC PROSPERITY HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE
EVENT GIVING RISE TO LIABILITY.
Hosting of the Service; Export Restrictions. The Service is controlled and operated from
facilities in the United States. Holistic Prosperity makes no representations that the Service is
appropriate or available for use in other locations. Customers who access or use the Service from other
jurisdictions do so of their own volition and are responsible for
compliance with all applicable United States and local laws and regulations, including but not limited to
export and import regulations. If Customer is located outside of the United States, Customer agrees that
Holistic Prosperity may transfer, store and process Customer Content in locations other than Customer’s
country.
The export and re-export of Content via the Service may be controlled by the United States Export
Administration Regulations or other applicable export restrictions or embargo. The Service may not be
used in any country that is subject to an embargo by the United States and Customer may not use the
Service in violation of any export restriction or embargo by the United States or any other applicable
jurisdiction. In addition, Customer must ensure that the Service is not made available for use by
persons or entities blocked or denied by the United States government.
Miscellaneous.
- Modifications. Holistic Prosperity may revise this Subscriber Agreement from time
to time by posting the modified version on its website at least twenty (20) business days prior to
the effective date of the modifications being made; provided, however, that no such modification
shall include a reduction in Customer’s rights or Holistic Prosperity’s obligations unless
affirmatively agreed to by Customer in advance. If, in Holistic Prosperity’s sole and reasonable
discretion, the modifications being proposed are material, Holistic Prosperity will notify Customer
of such proposed modifications via email to the email address associated with Customer’s account. By
continuing to access or use the Service after the posted effective date of modifications to this
Subscriber Agreement that do not include a reduction in Customer’s rights or Holistic Prosperity’s
obligations hereunder, Customer agrees to be bound by such modifications.
- Governing Law; Dispute Resolution. This Subscriber Agreement will be governed by
the laws of the State of California without regard to its conflict of laws provisions. The
application of the United Nations Convention on Contracts for the International Sale of Goods is
expressly excluded. Claims relating to this Agreement or the Service will be resolved through final
and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will
administer the arbitration under it Commercial Arbitration Rules and judgment on the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration will be
held in San Francisco, California. Notwithstanding these arbitration provisions, either party may
bring suit in the federal or state courts located in San Francisco, California solely for injunctive
relief to stop unauthorized use or abuse of the Service or infringement of intellectual property
rights and both Holistic Prosperity and Customer agree to personal jurisdiction there. All disputes
will be resolved on an individual basis and customer may not bring a claim in a class, consolidated
or representative action. Class arbitrations, class actions, private attorney general actions, and
consolidations with other arbitrators are not allowed under this Subscriber Agreement.
- Relationship of the Parties. The parties are and shall be independent contractors
with respect to all services provided under this Subscriber Agreement.
- Force Majeure. Except for payment obligations, neither Holistic Prosperity nor
Customer will be liable for inadequate performance to the extent caused by a condition that is
beyond the party’s reasonable control, including but not limited to natural disaster, civil
disturbance, acts of terrorism or war, labor conditions, governmental actions and interruption or
failure of the Internet or any utility service.
- Assignment. Neither this Subscriber Agreement nor any of the rights and licenses
granted hereunder, may be transferred or assigned by either party without the other party’s express
written consent; provided, however, that either party may assign this Subscriber Agreement without
the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate
reorganization or sale of all or substantially all of its assets. Any other attempt to transfer or
assign this Subscriber Agreement will be null and void.
- Entire Agreement. This Subscriber Agreement, together with any Customer purchase
order or order form associated herewith (as limited by Section 6), constitutes the entire agreement
of the parties concerning the subject matter hereof and supersedes and replaces any prior or
contemporaneous understandings and agreements, whether written or oral, with respect to the subject
matter hereof. If a court of competent jurisdiction deems any provision of this Subscriber Agreement
invalid, the invalidity of such provision shall not affect the validity of the remaining provisions
hereof, which shall remain in full force and effect.
- No Waiver. No waiver of any term of this Subscriber Agreement shall be deemed a
further or continuing waiver of such term or any other term, and a party’s failure to assert any
right or provision under this Subscriber Agreement shall not constitute a waiver of such right or
provision.