Last Revised: April 27, 2022
Loom Master Subscription Agreement for Organizations
Loom partners with thoughtful leaders and organizations to foster communities of growth, belonging, and service because we believe incredible things happen when you create the space and tools to help each other become more fully alive. We are delighted that you have chosen to walk this path with Loom. Before we begin our journey please take a moment to read and sign our terms and commitments below.
This Loom Master Subscription Agreement for Organizations (“Agreement”) is entered into by and between Loom, Inc., a Nevada corporation having its principal place of business at 600 Houze Way, Suite D3, Roswell, GA 30076 (“Loom”), and the party identified as the Customer on an Order Form, as defined below (“Customer”) as of the date of the Order Form.
By executing an order form that references this Agreement (each, an “Order Form”), Customer agrees to the terms and conditions of this Agreement and that such terms and conditions shall govern the services to be provided by Loom under any Order Form submitted by Customer and accepted by Loom (“Services”), as though the provisions of this Agreement were set forth in their entirety within such Order Form, and so that each Order Form and this Agreement shall be considered one, fully integrated document and agreement. Customer agrees that Services provided hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Loom regarding future functionality or features.
Capitalized terms not otherwise defined in this Agreement are set forth in this Section 1:
“Affiliate” of a company means an entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such company.
“Content” means the audio and visual information, documents, software, products and services contained in or made available via the Services, other than Customer Data.
“Customer” means the specific entity stated above as the signatory to this Agreement and any additional Affiliates of such entity that are specifically listed in the applicable Order Form as being authorized to use or purchase Services under such Order Form.
“Customer Data” means any data, information or material that Customer or Customer’s Users disclose or submit to Loom or the Services in the course of using the Services.
“Deliverables” means any copyrightable works, products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by Loom (either alone or jointly with Customer or others) that result from Professional Services included in any Order Form, and provided to Customer hereunder.
“Loom” means all of Loom’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 Customer by Loom in providing the Services.
“Order Form” means the Loom Order Form, Statement of Work or Proposal under which Customer places orders for the Services under the terms of this Agreement.
“Order Form Effective Date” means the date identified in an Order Form as the date on which such Order Form shall be effective.
“Service(s)” means Loom’s services identified on an executed Order Form, or ancillary online or offline products and services provided or licensed to Customer by Loom, to which Customer is being granted access under this Agreement, including the Loom Technology, the Content and any product, service or license belonging to a third party that appears on an Order Form.
“User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied user identifications and passwords by Customer (or by Loom at Customer’s request).
“User Data” means all data associated with a User’s use of the Services, including all data a User submits through the Services as well as all metadata and paradata associated with such data.
1. License Grant
Subject to the terms and conditions of this Agreement, Loom hereby grants Customer a non-exclusive, non-transferable, non-assignable, license to use the Services provided hereunder solely for Customer’s own internal business purposes and only for the specific User subscriptions and time periods as set forth in each fully executed Order Form. All rights not expressly granted to Customer are reserved by Loom and its licensors. Loom reserves the right to make changes, modifications and enhancements to the Services from time to time, in its sole discretion.
2. Limitations on Use
Customer shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or the Content in any way; (b) modify or make derivative works based upon the Services or the Content; (c) reverse engineer the Services; or (d) access the Services in order to build a competitive product or service. For the avoidance of doubt, and subject to the license grant set forth in Section 1, nothing in this Section 2 shall be deemed to prohibit Customer from allowing Customer’s employees from accessing the functionality of the Services, via interfaces, portal applications and the like, for its internal business purposes. Additionally, Customer shall not use the Services to: (e) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (f) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (g) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (h) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (i) attempt to gain unauthorized access to the Services or its related systems or networks.
3. User Subscriptions
Unless otherwise specified in the applicable Order Form, the Services are purchased as User subscriptions (“User Subscriptions”) and may be accessed by no more than the specified number of Users. User Subscriptions are for designated Users only and cannot be shared or used by more than one User.
4. Customer Responsibilities
Customer is responsible for all activity occurring under Customer’s User accounts and shall comply with all applicable laws and regulations in connection with Customer’s use of the Services, including but not limited to those related to data privacy, international communications, and the transmission of technical or personal data. Customer shall: (a) notify Loom immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Services; and (b) report to Loom immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of Content, Loom Technology, Services or Deliverable that becomes known or suspected by Customer or Customer’s Users.
Customer hereby represents, warrants and covenants that: (i) during the Term, Customer shall use commercially reasonable efforts to provide Loom the materials and resources described on and in accordance with the Order Form attached hereto or as otherwise set forth in an applicable SOW or Order Form; (ii) Customer will use the Services only in compliance with Loom’s standard published policies then in effect and (iii) if the Services include Loom’s access to, or analysis of, any data, information, network or other systems or equipment, Customer has, or will obtain prior to commencement of such Services, all rights, licenses or consents required to authorize Company to perform such Services, including any required licenses or consents from third-parties.
5. Professional Services
Any Professional Services to be performed under this Agreement shall be set forth and described in an Order Form executed by the parties. Such Order Form shall describe the services to be performed, the Deliverables to be developed, the prices to be paid for such services, applicable timelines for delivery, contact information for both parties and any required specifications or criteria applicable to such services. Professional Services shall be performed in accordance with the professional standards that reasonably and ordinarily can be expected from skilled and experienced persons engaged in the same type of undertaking. Loom shall retain all intellectual property rights in and to Deliverables developed by Loom in connection with Professional Services, excluding any pre-existing technology or materials supplied by Customer for incorporation into such Deliverables. Loom hereby grants Customer the right to access and use Deliverables in conjunction with Customer’s use of the Services during the term of any license right granted with respect to such Services. Customer acknowledges that nothing in this Agreement shall restrict or limit Loom from performing similar Professional Services for, or providing similar Deliverables to, any third party.
As between Loom and Customer, Loom retains all right, title and interest, including, without limitation, all patent rights, copyrights, trademarks and trade secrets, in and to the Services, Loom Technology, the Content and, subject to Section 5, above, any Deliverables, and any portion thereof, including, without limitation, any copy or derivative work of the Services, Loom Technology, the Content and any Deliverables (or any portion thereof) and any updates thereto. Customer agrees to take any action reasonably requested by Loom to evidence, maintain, enforce or defend the foregoing. Customer shall not take any action to jeopardize, limit or interfere in any manner with Loom’s ownership of and rights with respect to the Services, Loom Technology, the Content, any Deliverable, or any derivative work thereof or update thereto. Customer shall have only those rights in or to the Services, Loom Technology, the Content and Deliverables, and any derivative work thereof or update thereto granted to it pursuant to this Agreement. The Loom name, the Loom logo, and the product names associated with the Services are trademarks of Loom or third parties, and, except as expressly set forth herein, no right or license is granted to use them.
7. Fees, Payment Terms, Taxes, Billing Contact
Customer shall pay all fees or charges as specified on each executed Order Form (“Fees”). All payment obligations are non-cancelable and all amounts paid are nonrefundable, except as specifically provided in this Agreement or an applicable Order Form. Loom charges and collects in advance and in full for Fees and for committed User Subscriptions and in arrears for usage that exceeds such committed amounts as defined on each Order Form. Unless otherwise set forth in the applicable Order Form, payment terms are net thirty (30) days from the date of Loom’s invoice, without offsets or deductions of any kind, and payment is due in US dollars. If payment under an applicable Order Form is to be made via credit card or electronic money transfer (e.g., ACH), such payment shall be chargeable upon invoice date. Loom’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Loom’s income. In the event that any taxes, levies or duties are withheld by Customer as per applicable tax laws, the Fees payable to Loom shall be grossed up to cover such withholding amounts, such that Customer shall pay to Loom the full amount of all Fees, despite the withholding of such taxes, levies or duties. If Loom has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Loom with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer believes Customer’s bill is incorrect, Customer must contact Loom in writing within sixty (60) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Customer agrees to provide Loom with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. Customer agrees to update this information within thirty (30) days of any change to it. If the contact information Customer has provided is false or fraudulent, Loom reserves the right to terminate Customer’s access to the Services in addition to any other legal remedies. Loom reserves the right to modify its Fees with respect to its Services and to introduce new charges to become effective upon subsequent orders by Customer. In the event Customer fails to make payments per the payment terms set forth in this Agreement or in any applicable Order Form, and legal enforcement by Loom is deemed necessary, Customer agrees to pay all reasonable legal fees and costs incurred by Loom in connection with its collection of such payments. Loom and Customer may mutually agree to increases in user subscriptions during the Term of this Agreement. Subscription changes will be captured in subsequent invoices. Customer must notify Loom of any disputes with invoice amounts within 30 days of receipt of invoice.
8. Agreement Term
The term of this Agreement shall begin on the Effective Date and shall continue in effect until all underlying Order Forms with Customer have expired in accordance with the terms of such Order Form(s), or if this Agreement is terminated earlier, as provided herein (“Term”).
9. Non-Payment and Suspension
In addition to any other rights granted to Loom herein, Loom reserves the right to suspend or terminate this Agreement, any related Order Forms, and Customer’s access to the Services if Customer’s account becomes delinquent and is uncured for a period of thirty (30) days. In addition, Loom has the right to remove any credit terms provided in any Order Form in the event Customer’s account becomes delinquent (e.g., net 30 payment terms will be reduced to net 0). Customer will continue to be charged for Fees during any period of Service suspension due to Customer’s delinquency. If Loom initiates termination of this Agreement for cause, as further described in Section 11, below, Customer will be obligated to pay all remaining Fees due computed in accordance with their terms for the remainder of the applicable Order Form. Customer agrees that Loom may charge such unpaid Fees to Customer’s credit card or via ACH payment, or otherwise bill Customer for such unpaid Fees.
10. Confidential Information
Each Party shall retain in confidence the non-public information and know-how disclosed or made available by the other party pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). Notwithstanding any failure to so designate them, the Services and the terms and conditions of this Agreement shall be Loom’s Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each Party agrees to immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, either Party may disclose Confidential Information of the other party which is: (i) already publicly known without breach of this Agreement; (ii) discovered or created by the receiving party without use of, or reference to, the Confidential Information of the disclosing Party, as shown in records of the receiving Party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and reasonable assistance to the disclosing Party to enable the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either Party hereto may disclose any Confidential Information hereunder to such Party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.
11. Termination for Cause
Either party may terminate this Agreement (and any Order Forms then in effect) if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after delivery of notice of such breach. If Customer terminates this Agreement under this Section 11, Loom shall refund Customer any prepaid Fees on a pro-rata basis as of the effective date of such termination.
12. Effect of Termination
The provisions of Sections 2, 4, 5-7, 9, 10, 12, 14-18 shall survive the expiration or any termination of this Agreement.
13. Rights Reserved by Loom
Loom reserves the right to reschedule workshops and/or substitute coaches.
14. Representations and Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement and that it has validly done so. Loom further represents and warrants that the Services will perform substantially in accordance with the relevant product information under normal use and circumstances. In the event of a breach of this warranty, Customer’s sole remedy and Loom’s sole obligation will be for Loom to make reasonable commercial efforts to correct the non-conformity or, if Loom is unable to correct the non-conformity within ninety (90) days after Customer’s written notice, for Customer to terminate the applicable Order Form and receive a refund on a pro-rata basis of any prepaid unused Fees under such Order Form.
15. Disclaimer of Warranties
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN SECTION 14, LOOM AND ITS LICENSORS MAKE NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. LOOM EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. LOOM DOES NOT WARRANT THAT THE SERVICES (INCLUDING PROFESSIONAL SERVICES OR RELATED DELIVERABLES, IF ANY), ARE OR WILL BE ERROR-FREE, WILL MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF REDFISH TO ANY THIRD PARTY.
Customer agrees to defend, indemnify and hold Loom harmless from and against any and all claims or demands, damages, obligations, losses, liabilities, costs or debt, and expenses, including, but not limited to, legal fees and expenses, arising from: Customer’s use of and access to the Services, including any data or content transmitted or received by Customer; Customer’s violation of this Agreement, including, but not limited to, Customer’s breach of any of the representations and warranties set forth in this Agreement; Customer’s violation of any third-party rights, including, but not limited to, any right of privacy or intellectual property rights; Customer’s violation of any statutory law, rule, or regulation;
any content that is submitted from Customer’s account, including third party access with Customer’s unique username, password or other security measure, if applicable, including, but not limited to, misleading, false, or inaccurate information; or Customer’s willful misconduct.
17. Limitation of Liability
TO THE EXTENT ALLOWED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR, FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
17.2 Maximum Liability
Notwithstanding anything in this Agreement to the contrary or the failure of essential purpose of any limited remedy or limitation of liability, each party’s entire liability arising from or relating to this Agreement or the subject matter hereof, under any legal theory (whether in contract, tort, or otherwise), shall not exceed the amounts actually paid by Customer to Loom during the twelve-month period immediately preceding the action that gave rise to the liability. Notwithstanding the foregoing, the limitations set forth in this Section 17.2 shall not apply to either party’s liability arising under Section 10 (“Confidential Information”), either party’s liability as a result of fraud, gross negligence or willful misconduct, or Customer’s payment obligations under this Agreement.
All notices shall be addressed to:
42 S. Wynstone Drive
North Barrington, IL 60010
Attn: Dennis Strand
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer in the applicable Order Form or PO. All other notices to Customer shall be addressed to the person designated above.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the proper written consent of the other party (not to be unreasonably withheld). Any purported assignment in violation of this Section shall be void. Notwithstanding the foregoing, each party may assign this Agreement and its obligations hereunder without the other’s consent in connection with a merger, acquisition, corporate reorganization, succession in interest or sale of all or substantially all of such party’s assets.
18.3 Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, U.S.A., without reference to its conflicts of law provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
18.4 Force Majeure.
Loom’s services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Loom is not responsible for delays, delivery failures, or other damage resulting from such problems not caused by Loom. In addition, Loom shall be excused from performance under this Agreement or any Order Form for any period to the extent Loom is prevented from performing any obligation, in whole or in part, as a result of causes beyond its reasonable control and without its negligent or willful misconduct, including without limitation, acts of God, natural disasters, war or other hostilities, labor disputes, civil disturbances, or governmental acts, orders or regulations.
If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
18.6 Relationship of the Parties
Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither party, nor either party’s agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
18.8 Captions and Section Headings
The section headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
18.9 Entire Agreement
This Agreement, including all applicable Order Forms, constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes (a) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter of this Agreement; and (b) all past courses of dealing and industry custom. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions set forth in Customer’s purchase orders or other documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms and conditions shall be null and void.
Each party has read, understands and agrees to the terms and conditions of this Agreement.