Licensing and Terms of Service

SUBSCRIPTION AGREEMENT

READ CAREFULLY: BY PURCHASING A SUBSCRIPTION, YOU AS THE "SUBSCRIBER" AGREE TO THE TERMS OF THIS SUBSCRIPTION AGREEMENT (THE "AGREEMENT") WITH ORCAPACK, INC. ("ORCAPACK") OPERATING AS OCLUBHOUSE. THIS AGREEMENT SETS FORTH THE TERMS OF SUBSCRIBER'S SUBSCRIPTION AND USE OF SOFTWARE AND SERVICES PROVIDED BY ORCAPACK. IF SUBSCRIBER DOES NOT AGREE WITH ALL OF THESE TERMS, SUBSCRIBER WILL NOT BE ABLE TO PURCHASE A SUBSCRIPTION.

1. Definitions. 

"oclubhouse Services" means the provision of access to the electronic services provided over the Internet as described in oclubhouse's services description available at http://oclubhouse.com//what-is-oclubhouse as updated from time to time (the "Services Description") with the software providing those services at all times remaining on oclubhouse's server. 

"Drupal" means the open source content management platform available for download at www.drupal.org.

"Drupal Core Modules" means those certain software modules that comprise the core and mandatory functionality of Drupal, all of which are available for download at www.drupal.org.

"Drupal Contributed Modules" means those certain software modules that provide additional enhancements and optional features of Drupal, all of which are available for download at www.drupal.org. For the avoidance of doubt, Drupal Contributed Modules do not include Drupal Core Modules.

"Services" means oclubhouse Services and Third-Party Services together.

"Subscription" means access to the Software, Services and Support, at the level that Subscriber selects when places its order (or any subsequent order), for a defined period as set forth in the applicable order and includes the Initial Subscription Term and each Renewal Subscription Term (each as defined below in Section 8), collectively.

"Support" means the technical support on the use of oclubhouse Services as described in oclubhouse's support policy available at http://www.oclubhouse.com/maintenance_support as updated from time to time (the "Support Policy").

"Drupal Software" means the Drupal Core Modules and the Drupal Contributed Modules.

"User(s)" shall mean Subscriber's employees, consultants, contractors or agents authorized to use the Services in accordance with the terms and conditions of this Agreement and for which an incremental cost is incurred in a Subscription.

1. Subscribership to the oclubhouse Service provides registered Subscribers (each a "Subscriber") with the package of content, tools, and services described below ("oclubhouse Service(s)"). Among other things, Subscribers may use the technology available throughout the oclubhouse Service ("Technology") to build their web presence (each a "Subscriber Site"). You understand and agree that oclubhouse may, at its discretion, add or delete any features included as a part of the oclubhouse Service or Technology at any time.
2. Subscriber Restrictions. Subscriber may not, nor permit Users or anyone else to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services; (ii) modify, translate, or create derivative works based of Services; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Services; (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices from the Services; or (vi) publish or disclose to third parties any evaluation of the Services without oclubhouse's prior written consent. 
3. Services and Support. oclubhouse will provide Subscriber with the Services in accordance with the terms and conditions of the Services Description and the Support in accordance with the terms and conditions of the Support Policy (including the service levels specified in the Services Description and Support Policy), both at the Subscription level Subscriber selects when it places its order (or any subsequent order). Subscriber may add Users to Subscriber's subscription to the Services by placing an order with oclubhouse. Subscriber is responsible for all activity occurring under Subscriber's User's accounts. Subscriber shall notify oclubhouse immediately of any unauthorized use of any password, account, copying or access to the Services. User accounts cannot be shared or used by more than one individual User but may be reassigned to new Users replacing former Users. 
4. Acceptance. The Services will be deemed accepted upon oclubhouse  provision of the license key to Subscriber that enables Subscriber to use the Services. 
5. Intellectual Property Rights. oclubhouse  or its licensors retain all right, title and interest in and to the Services. Subscriber shall do nothing inconsistent with oclubhouse's or its third-party licensors' title to the Services and the intellectual property rights embodied therein including, but not limited to, transferring, loaning, selling, assigning, pledging, or otherwise disposing, encumbering, or suffering a lien or encumbrance upon or against any interest in the Services. The Services do contain copyrighted material, trade secrets and other confidential material of oclubhouse or its licensors. 
6. Subscription Term. This Agreement shall be effective as of the date that Subscriber accepts this Agreement by clicking on the "I agree" button (the "Effective Date"). The "Initial Subscription Term" will be for the period specified in the applicable order and shall commence on the Effective Date. Upon the expiration of the Initial Subscription Term, this Agreement will automatically renew for successive renewal subscription terms (each a "Renewal Subscription Term") equal in duration to the Initial Subscription Term at oclubhouse's then current Subscription fees. 
7. Termination. Subscriber may terminate this Agreement at the end of the Initial Subscription Term or a subsequent Renewal Subscription Term by notifying oclubhouse in writing any time prior to the end of the then-current term. oclubhouse may terminate this Agreement without cause at any time by notifying Subscriber in writing at least thirty (30) days prior to such termination. oclubhouse may terminate Subscriber's use of the Services if, in oclubhouse's sole discretion, Subscriber breaches or otherwise fails to comply with this Agreement and Subscriber has not cured such breach within thirty (30) days of oclubhouse's notice specifying the alleged breach. oclubhouse may terminate this Agreement and/or Subscriber's access to the Services if Subscriber's non-payment of any fees owed to oclubhouse that are delinquent by thirty (30) days or more. 
8. Effects of Termination. Upon the termination or expiration of this Agreement for any reason: (i) oclubhouse will no longer be obligated to provide the Services or the Support; and (ii) Subscriber shall immediately cease use of the Services. Subscriber's obligation to make a payment of any outstanding, unpaid fees and to keep Confidential Information confidential and the terms of Sections 4, 7, 10, 11, 13(b) and 14 through 16 shall survive termination or expiration of this Agreement. 
9. Confidential Information. Subscriber and oclubhouse agree to maintain the confidentiality of any proprietary information received by the other party during, or prior to entering into, this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure including, without limitation, non-public technical and business information ("Confidential Information") during the Subscription and for a period of two (2) years after the termination of this Agreement. This section shall not apply to any publicly available or independently developed information. The receiving party of any Confidential Information of the other party agrees not to use said Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party's Confidential Information to the same degree that it takes to protect its own confidential information and in no event less than reasonable care. 
10. Fees. Subscriber shall pay all fees to oclubhouse associated with the Subscription as set forth on the subscription overview page available at https://oclubhouse.com/get-started. Subscriber shall pay for all fees ordered for an entire Subscription, whether or not the Subscriber uses the Services or all the Support to which it is entitled in the Subscription. Subscriber shall make future fee payments for renewal at the end of each expiring subscription period. Subscriber must provide oclubhouse with a valid credit card or alternative payment form prior to receiving the Services or Support. All fees paid to oclubhouse are non-refundable. oclubhouse reserves the right to modify its fees, and notice of such changes will be posted on its subscription overview page at https://oclubhouse.com/get-started and provided to Subscriber via the message notification function in the Services. oclubhouse will automatically bill Subscriber's credit card or alternative payment form in the billing frequency established by the length of Subscriber's Initial Subscription Term. Subscriber agrees to provide oclubhouse with complete and accurate billing and contact information. If invoiced by oclubhouse, payments for such invoices are due net thirty (30) days. oclubhouse may terminate the Subscription if the billing or contact information is false, fraudulent or invalid. Subscriber will also pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on the transactions contemplated by this Agreement, excluding taxes based upon oclubhouse's net income. 

Subscriber agrees that oclubhouse may charge unpaid fees to Subscriber's credit card or otherwise bill Subscriber for unpaid fees. oclubhouse shall be entitled to reimbursement of all reasonable collection costs incurred as a result of unpaid balances.

1. Warranty Disclaimer.
   
   1. EXCEPT AS EXPRESSLY PROVIDED IN THE SERVICES DESCRIPTION, THE SERVICES AND THE SUPPORT ARE PROVIDED TO SUBSCRIBER STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. OCLUBHOUSE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF OCLUBHOUSE DRUPAL OR THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE, (B) OCLUBHOUSE DRUPAL, THE SERVICES OR SUPPORT WILL MEET SUBSCRIBER'S REQUIREMENTS OR EXPECTATIONS, (C) ERRORS OR DEFECTS WILL BE CORRECTED, OR (D) OCLUBHOUSE DRUPAL, THE SERVICES OR SUPPORT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND OCLUBHOUSE IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. 
2. Limitation of Liability.
   
   1. Consequential Damages Waiver. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL EITHER PARTY OR OCLUBHOUSE'S LICENSORS OR PROVIDERS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THE USE AND/OR INABILITY TO USE oclubhouse DRUPAL, THE SUPPORT OR THE SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 
   2. Limitation of Damages. In no event shall oclubhouse's total liability to Subscriber for all damages, losses and causes of action (whether in contract, tort, including negligence, or otherwise) exceed THE AMOUNT THAT SUBSCRIBER PAID TO OCLUBHOUSE DURING THE PRECEDING TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY. ADDITIONALLY, IN NO EVENT SHALL OCLUBHOUSE'S LICENSORS BE LIABLE FOR ANY DAMAGES OF ANY KIND. 
   3. Failure of Essential Purpose. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 
   4. Allocation of Risk. The sections on limitation of liability and disclaimer of warranties allocate the risks in the Agreement between the parties. This allocation is an essential element of the basis of the bargain between the parties. 
3. Export. Subscriber acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin, including the Licensed Software or the Services. Subscriber agrees that it will not export or re-export the Licensed Software or the Services without the appropriate United States or foreign government licenses. 
4. General Provisions. An individual acting on behalf of an entity represents that he or she has the authority to enter into this Agreement on behalf of the entity. All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, telecopier, facsimile transmission, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission, and addressed to the party to whom notice is given to oclubhouse at its corporate headquarters and to Subscriber at its address set forth in the registration page (or such other address as either party may specify in writing). Subscriber shall not assign this Agreement or transfer any of the rights, duties, or obligations arising under this Agreement, whether by merger, operation of law, or otherwise, without the prior written consent of oclubhouse. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. This Agreement will be governed by and construed according to the laws of the Commonwealth of Massachusetts without regard to that body of law controlling conflicts of law. In the event of any dispute or claim arising out of this Agreement, the parties hereby submit to the jurisdiction of the federal and state courts located in Suffolk county, Commonwealth of Massachusetts, as applicable. This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any part of this Agreement is found invalid or unenforceable that part will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all prior and/or contemporaneous representations, discussions, negotiations and agreements, whether written or oral.