Freedom Of All Media Enterprise Terms
Last Updated: January 20, 2020
These FOAM Enterprise Terms (“Enterprise Terms”) apply to individually-negotiated order forms (“Order Forms”) executed by FOAM, Inc., on behalf of itself or its subsidiaries (“FOAM”, “we”, “us”, or “our”), and you. These Enterprise Terms shall not apply to “self-service” purchases (i.e., those made directly from our websites without individual negotiation).
1. Applicable Online Terms
By signing the Order Form, you are entering into a binding agreement with the FOAM entity below that will provide the product or service you have ordered:
These Enterprise Terms incorporate by reference the online terms applicable to the product or service you have purchased, as shown above. To the extent there is any inconsistency between any individual document, the following documents shall control, in this order: (a) the Order Form; (b) these Enterprise Terms, and (c) the applicable online terms of service (collectively, the “Agreement”).
During the Term (as defined below), FOAM will provide you with the products and services that you have ordered in the Order Form.
Subscription services will be deemed made available on the Start Date (stated in the Order Form), regardless of when you start using all or part of the services, and for the duration of the Initial Service Period (stated in the Order Form). You may need to create an account, upload assets, or provide certain information in order to start using the services.
Applications for third-party platforms (“apps”) will be developed after the Start Date and after you have provided all required assets and approvals. Apps may need to be approved by a third-party platform or store, which may have content guidelines that differ from FOAM’s. You will remain responsible for fees if any app is rejected based upon your content or conduct.
3. Subscription Term
If you have ordered subscription services, the Agreement begins on the Start Date and continues for the Initial Service Period. Thereafter, your Agreement will automatically renew for successive 12-month periods (each a “Renewal Period”) unless either party provides at least thirty (30) days’ written notice of termination before a Renewal Period begins. The Initial Service Period and any Renewal Period(s) shall be referred to as the “Term.”
We may terminate the Agreement if you fail to cure any breach thereof within fifteen (15) days of written notice of the breach. We may remove any content pursuant to our copyright policies or our acceptable use policies. We will terminate accounts of repeat infringers in appropriate circumstances.
In the event of termination for breach, (a) you will continue to be responsible for all fees (which shall be accelerated if unpaid); (b) any revenue payable to you shall be forfeited; (c) you may not create or use a self-service account with us; and (d) we may terminate any other agreements with you.
5. Prices and Fees
You will pay the amounts set forth in your Order Form plus any applicable taxes. If the Order Form does not list any price for an ordered product or service, you will pay the prices displayed on our website. If the Order Form lists zero as the price, this indicates that the product or service is bundled with another paid product or service and shall not be construed as a standalone commitment to provide a free product or service. At the beginning of a Renewal Period (if any), we may, upon notice, increase prices by up to 5% annually.
Sales and value-added taxes may apply to all purchases. You are solely responsible for paying such taxes or demonstrating that you are exempt.
All paid amounts are non-refundable. Any refund policy set forth on our website or marketing materials (which apply to self-serve accounts) shall not apply.
6. Revenue and Advertising Inventory
Certain of our services may involve payment of revenue received by FOAM for the sale of your content to end users. In such cases, we will pay you gross revenue received from end users from sales of your content, less taxes, refunds, chargebacks, FOAM’s fees, and any other permitted deductions. Payments will be made within thirty (30) days after the end of each month.
FOAM may withhold amounts from any payment due to you that FOAM determines in good faith must be withheld pursuant to U.S. tax law. FOAM may file reports concerning income with any taxing authority, including the U.S. Internal Revenue Service.
Certain of our services may allow FOAM or you (or both) to sell advertising inventory in connection with content that you submit. You shall ensure that any advertising inventory sold or delivered by you complies with the Agreement, including our acceptable use policies.
7. Payment Terms
You must pay all fees using a valid payment method or, if we permit, by invoice. All invoices are payable within thirty (30) days after the invoice date without offsets or deductions of any kind. Fixed fees may be invoiced in advance at the start of each period. Variable fees (e.g., overage fees, transactional fees, etc.) will be invoiced on a monthly basis after the end of each month. Certain types of fees may be paid through systems we provide without an invoice.
In the event of late payments or nonpayment: (a) we may deduct amounts owed from any revenue owed to you until all fees are paid; (b) we may suspend or limit service to you until all fees are paid; (c) we may charge interest of up to 1.5% per month or the maximum allowable by law (whichever is lower) on past-due amounts; and (d) you agree to pay our reasonable costs of collection (including court filing fees and attorneys’ fees).
Invoiced amounts will be deemed accounts stated and may not be disputed after six (6) months after the invoice date. No endorsement or statement on any check or payment or accompanying document will be construed as an accord or satisfaction. All amounts are expressed, and must be paid, in U.S. dollars.
You grant us permission to use your name and logo on our customers lists, marketing pitch-books, and investor materials. Neither party shall issue any press release about their relationship without the prior written consent of the other.
The Agreement constitutes the entire agreement and understanding between the parties as to the subject matter thereof and supersedes all prior agreements and understandings, written or oral, including any proposals, price quotes, and non-disclosure agreements. No additional terms set forth in any subsequent “purchase order” or “clickwrap” agreement that may be presented to and clicked through by us as part of your vendor registration process will have any binding effect. No FOAM reseller, agent, or employee is authorised to make any modification, extension, or addition to this Agreement. The Order Form may not be modified except in a writing signed by each party. Freedom Of All Media may modify these Enterprise Terms or any applicable online terms of service by posting a revised set of terms on its website, provided that (a) any changes will apply prospectively; and (b) your consent shall be required for any changes that materially diminish your rights.