Subscription agreement

1. PURCHASE OF THE GoProExpress

Under this Agreement You have purchased a subscription of GoProExpress from GoPro („Purchased Services“) which grants You a limited, restricted, non-exclusive, non-transferable, right to use the GoProExpress, but only for Your own internal business purposes. All rights not expressly granted to You hereunder are reserved by GoPro and its licensors.

2. PROPRIETARY RIGHTS

2.1 You acknowledge that the intellectual property rights and all other proprietary rights, goodwill and other rights of whatever nature on or in the GoProExpress and any associated documentation, content and materials shall be and remain the sole and exclusive property of GoPro.

2.2 You acknowledge and agree that Your use of the GoProExpress in accordance with this Agreement shall not give You any right, title or interest in or to the GoProExpress, save the right to use the GoProExpress solely in accordance with the terms of this Agreement.

2.3 The GoPro name, the GoPro logo, and the product names associated with the GoProExpress are trademarks of GoPro or third parties, and no right or license is granted to use them.

2.4 Subject to the limited rights expressly granted hereunder, GoPro reserves all rights, title and interest in and to the GoProExpress, including all related intellectual property rights. GoPro reserves all rights in and to the GoProExpress not expressly granted to You hereunder

2.5 You shall not a) permit any third party to access the GoProExpress except as expressly provided herein or in an Order Form, b) create adaptations or other derivate works based on the GoProExpress, c) copy, reproduce, frame or mirror any part or content of the GoProExpress, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, d) reverse engineer or decompile the GoProExpress, or d) access the GoProExpress in order to (i) design and/or make a competitive product or service, or (ii) copy any features, functions, illustrations or graphics of the GoProExpress.

2.6 As between GoPro and You, You exclusively own all rights, title and interest in and to all of Your Data.

2.7 Suggestions. GoPro shall have a fully paid-up, royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the GoPro Express any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the GoProExpress.

3. OPERATION OF THE GoProExpress

3.1 GoPro‘s Obligations. GoPro shall: (i) provide to You basic support for the Purchased GoProExpress at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the GoProExpress available during GoPro´s regular office hours except for: (a) planned downtime (of which GoPro shall give at least 8 hours notice via the GoProExpress or: (b) any unavailability caused by circumstances beyond GoPro reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving GoPro employees), or Internet service provider failures or delays, and (iii) provide the GoProExpress  only in accordance with applicable laws and government regulations.

3.2 Your Obligations using GoProExpress

3.2.1 You shall use GoProExpress only in compliance with the GoProExpress User Guide.

3.2.2 You shall be responsible for all activity occurring by Your users and under Your user accounts.  You shall be responsible for compliance with all applicable local and national and foreign laws, treaties and regulations in connection with your use of GoProExpress, including those related to data privacy, international communications, the transmission and storage of technical or personal data. You shall be responsible for the accuracy, quality, integrity, legality and source of your data and other content You use and the means and manner by which you obtained such data or content.  You shall use commercially reasonable efforts to prevent unauthorised access to or use of the GoProExpress and notify GoPro immediately of any unauthorized use of GoProExpress including but not limited to; illegal use of password or account or any other known or suspected breach of security; external or internal attempt to gain unauthorized access to the system or attempt to impersonate another GoPro user or provide false identity information to gain access to or use the GoProExpress.   You shall report to GoPro immediately and use reasonable efforts to immediately discontinue any copying or distribution of content, documentation and materials that is known or suspected by You or Your Users. You shall not: (a) make the GoProExpress available to anyone other than Your  Users, (b) sell, resell, rent or lease the GoProExpress, (c) use the GoProExpress to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the GoProExpress to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the GoProExpress or third-party data contained therein, or (f) attempt to gain unauthorized access to the GoProExpress or their related systems or networks.

3.3 The GoProExpress may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against GoPro application programming interface, and, for services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the GoPro‘s service, privacy, security  and capacity limitations policies, as described in section12.

4. THIRD-PARTY PROVIDERS

4.1 Acquisition of Third-Party Products and Services. GoPro may offer Third-Party Applications for sale under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to third-party applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. GoPro does not warrant or support third-party products or services, whether or not they are designated by GoPro as “certified” or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the GoProExpress

4.2 Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with GoProExpress, You acknowledge that GoPro may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the GoProExpress. GoPro shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. GoProExpress shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the GoProExpress.

4.3 Third-Party services (such as Google Services).  Service features that interoperate with third-party services such as Google services depend on the continuing availability of the API‘s and program for use with the GoProExpress.  If the third-party provider ceases to make the API or program available on reasonable terms for the GoProExpress, GoPro may cease providing such GoProExpress features without entitling You to any refund, credit, or other compensation.

5. BILLING AND PAYMENT

5.1 Charges and Fees. You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current number of total User licenses at the license fee currently in effect, as well as applicable functionality and volume of data. Payments may be made annually, monthly, or quarterly, consistent with the Initial Term, or as otherwise mutually agreed upon. You are responsible for paying for all User licenses ordered for the entire Subscription Term, whether or not such User subscriptions are actively used. You must provide GoPro with valid credit card or approved purchase order information as a condition to signing up for the GoProExpress.  You change the number of subscriptions as well as the functionality selected either changing the business information in the GoProExpress Order Form.  New or added licenses or functionality will be subject to the following charged at the subscription fee for the added subscriptions in accordance with the applicable GoPro Pricelist at GoProExpress.  Subscriptions added in the middle of a billing month will be charged in full for that billing month. GoPro reserves the right to modify its pricelist or 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.

5.2 Billing and Renewal. GoPro charges and collects in advance for use of the GoProExpress. GoPro will automatically renew and bill your credit card or issue an invoice to You in accordance with our registration with GoPro upon at agreed intervals (f.example. every month, every quarter or each year or otherwise mutually agreed). The renewal charge will be equal to the then-current number of total User subscriptions and functionality selected, times the subscription fee according to the pricelist in effect during the prior term, unless GoPro has given You at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged monthly according to pricelist or proposal or on an as-quoted basis.  GoProExpress fees are exclusive of all taxes, and You shall be responsible for payment of all such taxes. You agree to provide GoPro with complete and accurate billing and contact information. 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, GoPro reserves the right to terminate your access to the GoProExpress in addition to any other legal remedies. If You believe your bill is incorrect, You must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit

5.3 Non-Payment and Suspension. GoPro reserves the right to suspend or terminate this Agreement and your access to the GoProExpress, without notice, if You fail to pay or if your account becomes overdue (falls into arrears).  Overdue invoices (accounts in arrears) are subject to interest to the maximum permitted by applicable law plus all expenses of collection. You will continue to be charged for User subscriptions during any period of suspension. If You or GoPro initiates termination of this Agreement, You will be obligated to pay the balance due on your account computed in accordance with the provisions of sections 5.1 and 5.2 above. You agree that GoPro may charge such unpaid fees to your credit card or otherwise bill You for such unpaid fees.  GoPro reserves the right to charge a reconnection fee in the event You request re-access to the GoProExpress. You agree and acknowledge that GoPro has no obligation to retain Customer Data and that such Customer Data may be permanently deleted if your account is 30 days or more delinquent.

6. TERM AND TERMINATION

6.1 Termination upon Expiration/Reduction in Number of Licenses. This Agreement commences on the Effective Date. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at GoPro‘s then current fees. Either party may terminate this Agreement with 60 days notice.  Either party may reduce the number of subscriptions with 30 days notice. In the case of free trials, notifications provided through the GoProExpress that shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), GoPro will make available, at Your cost, to You a file of the Customer Data within 30 days of termination if You so request at the time of termination. You agree and acknowledge that GoPro has no obligation to retain the Customer Data, and may delete such Customer Data, at any time when 30 days have passed from termination.

6.2 Termination for Cause. Any breach of your payment obligations or unauthorized use of the GoPro technology, GoProExpress or service will be deemed a material breach of this Agreement.  In such event GoPro, in its sole discretion, may terminate your password, account or use of the GoProExpress.  GoPro may terminate a free account at any time in its sole discretion. You agree and acknowledge that GoPro has no obligation to retain the Customer Data, and may delete such Customer Data, if You have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

7. WARRANTIES-DISCLAIMERS AND INDEMNIFICATION

7.1 GoPro and You each represents and warrants to the other as follows:

a) it has full power and authority to execute and deliver this Agreement and to perform the obligations and transactions contemplated hereby;

b) the making of this Agreement does not, and will not, violate or conflict with any agreements, rights or obligations binding on or affecting it; and c) this Agreement has been duly and properly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation enforceable in accordance with its terms.

7.2 GoPro warrants that GoProExpress will in all material aspects comply with GoPro’s general specification(s) given in the User‘s Guide (or in other documentations when relevant), when properly used (on appropriate  )..

7.3 GoPro does not give any representation, warranty or undertaking of any kind, whether express, implied statutory or otherwise by way of example but not limited to, as to the effectiveness, reliability, timeliness, suitability, security, availability, performance, quality, merchantability, durability or fitness for any purpose of GoProExpress or any related material or documentation or services, or that GoProExpress, or any related material or documentation or services supplied by GoPro is free from any defect or error, to the maximum permitted by applicable law. GoProExpress and all related material and documentation is provided to You on an “as is” basis”.

7.4 GoPro shall not be liable by reason of any representation or the breach of any implied condition, warranty or other term or any duty under any law or statues, or under any express term of this Agreement, for any loss, damages, costs, expenses or other claim for compensation whatsoever, whether occasioned by the negligence of GoPro, its servants or agents or otherwise, which arises out of or in connection with this Agreement, or which in any way relates to GoProExpress or any related material or documentation or their use by You to the extent that:

7.4.1 any such claim is for loss of profit, contracts, goodwill or anticipated savings or for wasted expenditure, or for any indirect, special or consequential loss or damages; or

7.4.2 the amount of any claim for which GoPro would otherwise be liable exceeds the amount actually paid by You to GoPro under this Agreement during the 6 months period immediately preceding the events or occurrences giving right to damages, less 20% for each year after the execution date of this Agreement which shall have expired prior to that time.

7.5 No cause of action that occurred more than (1) one year prior to the filing of a lawsuit alleging such course of action may be asserted against either party.

7.6 Internet Delays and Hardware Failure

YOU UNDERSTAND AND ACKNOWLEDGE THAT GoProEXPRESS AS WELL AS OTHER SERVICES MAY BE SUBJECT TO RESTRICTIONS, INTERRUPTIONS, AND OTHER PROBLEMS IN CONNECTION WITH THE INTERNET AND ELECTRONIC COMMUNICATIONS, AS WELL AS HARDWARE FAILURE AND FURTHER THAT GOPRO IS NOT RESPONSIBLE FOR ANY CONSEQUENCES RESULTING FROM SUCH PROBLEMS.

7.7 Mutual Indemnification

7.7.1 You shall indemnify and hold GoPro, its licensors and each such party’s parent organizations, subsidiaries, affiliates, and  employees (including management), 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 GoPro: (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 GoPro of all liability and such settlement shall not affect GoPro’s business, GoProExpress or Service); (c) provides to You all available information and assistance; and (d) has not compromised or settled such claim.

7.7.2 GoPro shall indemnify and hold You and your parent organizations, subsidiaries, affiliates, officers, directors, employees (including management), 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 a claim alleging that the GoProExpress directly infringes  the intellectual property rights of a third party, provided, that You (a) promptly give GoPro written notice of the Claim; (b) give GoPro sole control of the defense and settlement of the Claim (provided that GoPro may not settle any Claim unless the settlement unconditionally.

7.7.3 This Section 7.7 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

8. CONFIDENTIALITY

8.1 Definition of Confidential Information. As used herein, ” Confidential Information” means all confidential information disclosed by a party (” Disclosing Party”) to the other party (” Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; GoPro Confidential Information shall include the GoProExpress; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

8.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

8.3 Protection of Your Data. Without limiting the above, GoPro shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. GoPro shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 8.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide services in connection with GoProExpress or prevent or address service or technical problems, or at Your request in connection with customer support matters.

8.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

9. NOTICES

All notices contemplated herein shall be sent in writing by certified mail, return receipt required, or by wire communications (i.e., e-mail, telex, telefax, etc.), addressed to the other party at the address recorded in GoPro‘s account information, or as the same may be changed from time to time. Such notice shall be deemed to have been given by GoPro upon 48 hours after mailing or posting. Your notice shall be deemed to have been given when received by GoPro at customeraccounts@gopro.net or by sending a letter by fax to +354 5103110 or by sending a first class mail to: GoPro, Tunguhals 19, 110 Reykjavik, Iceland. Notices to You shall be addressed to Your system administrator and/or the billing contact, respectively, designated by You.

10. MODIFICATIONS TO TERMS AND CONDITIONS

GoPro reserves the right to modify the terms and conditions of this Agreement or its policies relating to the GoProExpress at any time, effective upon posting of an updated version of this Agreement on the GoProExpress. You are responsible for regularly reviewing this Agreement. Continued use of the GoProExpress after any such changes shall constitute your consent to such changes.

11. ASSIGNMENT

This Agreement is personal to You, and You may not, without the prior written consent of GoPro, (not to be unreasonably withheld) assign or sub-license any rights under this Agreement, or purport to do any of the same, or sub-contract any or all of its obligations under this Agreement unless otherwise specified in this Agreement. Any purported assignment or sub-licenses in breach of this Section 11, shall confer no rights on the purported assignee and such action by You shall entitle GoPro to terminate this Agreement immediately upon written notice. GoPro shall be entitled freely to assign and/or sub-license this Agreement and/or any part thereof to any third party in its sole discretion. Notwithstanding the foregoing, You may assign this Agreement in its entirety (including all Order Forms), without consent of GoPro, to Your affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Your assets not involving a direct competitor of GoPro.

12. SERVICE. PRIVACY AND SECURITY; DISCLOSURE

GoPro‘s service, privacy, security  and capacity limitations policies (GoProExpress Policy)  is set forth at www.GoProExpress.com/policy.  GoPro reserves the right to adjust the GoProExpress Policy in its reasonable discretion from time to time.  You agree to use GoProExpress in accordance with the GoProExpress Policy which is an integral part of this Agreement.

Due to the nature of the GoProExpress as a hosted, online application, GoPro occasionally may need to notify some or all users of GoProExpress of important announcements regarding the operation of the GoProExpress. You agree that GoPro is entitled to disclose the fact that You are a paying customer and the configuration and components of the GoProExpress that You are using.

13. GENERAL PROVISIONS

13.1 This Agreement shall be subject to the laws and procedures of Iceland and the District Court of Reykjavik shall be the court of jurisdiction.

13.2 Independent Contractor Status – No Partnership. This Agreement does not create and shall not be construed as creating any relationship of partnership, franchise, joint venture, agency, fiduciary or employment between the par­ties. The parties enter this Agreement as, and shall remain, independent parties and independent contractors.

13.3 Severance. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. If any provision of this Agreement is found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid

13.4 Entire Agreement. This Agreement including all exhibits, modifications, addenda hereto and all Order Forms constitute and express the entire agreement and understanding between the parties in reference to all matters referred to herein, and any and all previous or simultaneous agreements, discussions, promises, representations and understanding between the parties relative thereto are merged herein and superseded hereby. No amendment to or modification of this Agreement shall be binding upon either party unless such amendment or modification is submitted in writing, dated and signed or accepted electronically by the parties to this Agreement. However, to the extent of any conflict or inconsistency between the provisions in this Base Agreement and any exhibit, modification or addendum hereto or any Order Form, the terms of such exhibit, modification, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation, excluding Order Forms, shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void unless expressly accepted by GoPro.

Both parties shall continue to have the benefits of all provisions of prior agreements protecting the confidentiality of and the proprietary rights of their own software products and other materials, and both parties shall still be obligated to pay any money owed to the other party under any prior agreement.

14. DEFINITIONS

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

14.1 “Agreement” or „Base Agreement“ means these online terms of use, any Order Forms, whether written or submitted online via the Online Order Center, and any materials available on the GoProExpress website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by GoPro from time to time in its sole discretion;

14.2 “Content” means the audio and visual information, documents, software, products and services contained or made available to You in the course of using the GoProExpress;

14.3 “Customer Data” means any data, information or material provided or submitted by You to the GoProExpress in the course of using the GoProExpress;

14.4 “Effective Date” means the earlier of either the date this Agreement is accepted by selecting the “I Accept” option presented on the screen after this Agreement is displayed or the date You begin using the GoProExpress;

14.5 “Initial Term” means the initial period during which You are obligated to pay for the GoProExpress equal to the billing frequency selected by You during the subscription process (e.g., if the billing frequency is quarterly, the Initial Term is the first quarter);

14.6 “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, GoProExpress 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;

14.7 “License Administrator(s)” means those Users designated by You who are authorized to purchase licenses online using the Online Order Center or by executing written Order Forms and to create User accounts and otherwise administer your use of the Service;

14.8 “Order Form(s)” means the form evidencing the initial subscription for the GoProExpress and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses 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);

14.9 “Online Order Center” means GoProExpress‘s online application that allows the License Administrator designated by You to, among other things, add additional Users to the GoProExpress; “GoPro” means collectively GoPro ltd, an Icelandic company, having its principal place of business at Tunguhals 19, 110 Reykjavik, Iceland a limited liability company.

14.10 “GoPro Technology” means all of GoPro‘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 GoPro in providing the GoProExpress;

14.11 “GoProExpress(s)” means the specific edition, versions or features of  GoProExpress online software or features, billing, data analysis, or other corporate ERP services identified during the ordering process, developed, operated, and maintained by GoPro, accessible via http://www.GoProExpress or another designated web site or IP address, or ancillary online or offline products and services provided to You by GoPro, to which You are being granted access under this Agreement, including the GoPro‘s Technology and the documentation, materials and content;

14.12 “User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the GoProExpress and have been supplied user identifications and passwords by You (or by GoPro at your request).

15. QUESTIONS OR ADDITIONAL INFORMATION:

If You have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@gopro.net