Last revised January 10, 2018
Acceptance of Terms
Please read these Subscription Terms carefully before you complete the EX Program subscription registration. These Subscription Terms constitute a binding agreement between you, on behalf of your employer and Truth Initiative (“Provider,” “we” or “us”), which owns and operates the EX Program. By completing the subscription registration on this website, you represent that (1) you are authorized to complete the EX Program subscription registration on behalf of your employer (“Customer”) and to bind Customer to these Subscription Terms; and (2) Customer agrees to be bound by these Subscription Terms, as well as any and all applicable federal, state and local laws and regulations. If Customer does not agree with these Subscription Terms, do not complete the EX Program subscription registration.
Provider may, at any time, amend these Subscription Terms by posting the amended Subscription Terms to the EX Program website – www.theexprogram.com (the “Site”). Any use of the Site or the “Services” by any of Customer’s “Authorized Users” (each defined below) after the amendment of these Subscription Terms is deemed acceptance of the amended Subscription Terms by Customer. If Customer does not agree to any amended Subscription Terms, it has the right to discontinue use of the Site and the Services, pursuant to the cancellation provisions set forth in the then-current Subscription Terms.
All rights not expressly granted in these Subscription Terms are hereby reserved by Provider. No rights are granted by implication.
If you have any questions or concerns about these Subscription Terms or any issues raised herein or on the Site, the Site, please contact us at info@theexprogram.com.
The Site and the Services
The Site is owned and operated by Provider. Provider also owns and operates the website www.becomeanex.org (the “BecomeAnEX Site”) through which adult users who are authorized by Customer as eligible to utilize Customer’s EX Program subscription (collectively, “Authorized Users”) can access certain Services in connection with their smoking cessation efforts. Those Services include without limitation: a collection of information, data, text, graphics, images, video and audio files and other types of works; search tools; blogs; access to the EX Community, a peer-supported social network of smokers and former smokers; mobile-optimized, personal one-on-one chat coaching with certified tobacco treatment specialists; text message and email communication, up to a four-week supply of nicotine replacement therapy products such as gum, lozenges or patches, as applicable; and any other services that Provider may offer through the EX Program from time to time in its sole discretion. Provider reserves the right, in its sole discretion, to change, modify, suspend or discontinue the whole or any portion of the Services, the Site and/or the BecomeAnEX Site at any time. Provider may also, in its sole discretion, impose limitations on certain features or restrict Authorized Users’ access to parts of or the entire Services, Site or BecomeAnEX Site, without notice or liability.
Excluded Companies
The EX Program does not serve any company (“Excluded Company” or “Excluded Companies”) that manufactures tobacco and/or tobacco-derived products intended for human consumption (including without limitation e-cigarettes) or any such company’s parents, subsidiaries, affiliates or controlled entities (which includes any entity in which the company has at least a 50% ownership interest or has at least 50% representation on the governing body). In the event that an Excluded Company registers for EX Program services, Truth Initiative reserves the right to terminate the relationship and refund the pro rata fees paid.
Licenses and Use
Provider hereby grants to Customer and to Customer’s Authorized Users, effective upon Customer’s completed and accepted EX Program subscription registration, a limited, non-exclusive, revocable, non-assignable, non-transferable right and license to access via the internet and/or mobile device and utilize the BecomeAnEX Site and the Services, subject to the Terms of Use set forth at www.becomeanex.org/terms-of-use. The rights and licenses granted herein are subject to the following additional requirements: (i) the EX Program, the BecomeAnEX Site and the Services may only be accessed by Customer and its Authorized Users for their own benefit; and (ii) neither Customer nor its Authorized Users shall copy, reproduce, market, sell, distribute, sublicense, manufacture, adapt, create derivative works of, translate, localize, port, decompile, reverse engineer or otherwise modify or commercially exploit the Services, the “Provider Content” (defined below), the BecomeAnEX Site or any software associated with either the Site or the BecomeAnEX Site (individually and collectively, the “Software”). For purposes of these Subscription Terms, the term “Provider Content” means any audio, visual, audiovisual, textual and/or interactive works or materials, in any media, that is created by or on behalf of Provider in connection with the BecomeAnEX Site and/or the Services.
Customer’s Authorized Users shall be bound by and responsible for all communications and online activity transmitted or conducted in connection with Customer’s EX Program subscription. Provider shall have no responsibility or liability for any loss, damage, cost, expense or other liabilities arising out of or in connection with the wrongful or fraudulent use of Customer’s EX Program subscription. Customer shall promptly notify Provider at info@theexprogram.com if Customer becomes aware of any actual or suspected unauthorized use(s) of Customer’s EX Program subscription or any loss, theft or unauthorized disclosure of Customer’s account password.
Where fraudulent or wrongful use of Customer’s EX Program subscription is detected or suspected, Provider reserves the right, in its sole discretion, without liability and without prejudice to any other rights and remedies at law or in equity, to immediately prohibit such user(s) from participating in the EX Program, and/or to suspend or terminate Customer’s EX Program subscription.
In the event that Customer is provided with promotional materials in connection with its EX Program subscription, Provider hereby grants to Customer a limited, non-exclusive, revocable, non-assignable, non-transferable right and license to use such Provider trademarks, names and logos (collectively the “Provider Marks”) to the extent such Provider Marks are incorporated in such promotional materials. The licenses granted herein shall expire upon the earlier of the expiration or cancellation of Customer’s EX Program subscription or the effective date of any termination thereof.
Proprietary Rights
Provider owns all materials, data, forms, templates, Software (including all enhancements, new versions, updates, upgrades and “Modifications” (defined below), Provider content and all other original work that Provider has developed and fixed in a tangible form in connection with the Site, the Services and/or the BecomeAnEX Site (collectively, “Work Product”). Provider is also the holder of all attendant rights in and to or otherwise associated with the Work Product. For purposes of these Subscription Terms, the term “Modifications” means any and all enhancements, new versions, updates, derivative works, or workarounds or routines intended to correct the adverse effect of an “Error” (defined below). For purposes of these Subscription Terms, the term “Error” means a failure of the Software to perform as described herein, where such failure has a material, adverse impact on the essential functionality of the BecomeAnEX Site and/or the Services.
Any Modifications to the Software or Provider Content resulting from the suggestions of Customer or its Authorized Users shall be owned exclusively by Provider and may be freely used by Provider without limitation and without payment or other compensation to Customer or its Authorized Users.
Support
For the duration of Customer’s subscription to the EX Program, Provider will: (i) provide telephone and e-mail assistance in resolving problems with the Software; (ii) use commercially reasonable efforts to promptly provide workarounds or routines to correct the adverse effect(s) of verifiable Errors (items (i) and (ii), collectively, the “Support”); and (iii) supply email and telephone contacts for Customer to obtain such Support.
Data Security and User Personally Identifiable Information (PII)
Provider will use commercially reasonable efforts to maintain administrative, technical and physical safeguards to (i) protect the confidentiality, security and integrity of the EX Program; and (ii) protect against accidental, unauthorized or unlawful access, use, or disclosure of information supplied by Customer or an Authorized User that identifies or can be reasonably used to identify an individual person, including, but not limited to, any e-mail address or phone number (“User PII). Provider will not use or grant access to any User PII except in the course of performance of the Services and Support in connection with the EX Program, including disclosure to Provider’s vendors and/or subcontractors, if any, who have a need to know in order to assist Provider in delivering Services and Support in connection with the EX Program.
Confidentiality
Provider and Customer each may be exposed to or provided with “Confidential Information” (defined below) of the other. Each will protect the other’s Confidential Information from unauthorized disclosure and use, exercising the same degree of care that the disclosing party uses to protect its own Confidential Information, but in no event less than a reasonable degree of care. Except as required by law or compelled by legal process, neither Provider nor Customer will use the other’s Confidential Information for purposes other than those necessary to directly further the purposes of Customer’s EX Program subscription and as may be required to report to its and its affiliates’ Board of Directors and/or legal and financial advisors. Except as otherwise expressly set forth in these Subscription Terms, neither Provider nor Customer may disclose to third parties the other’s Confidential Information without prior written consent of the disclosing party. For purposes of these Subscription Terms, “Confidential Information” means confidential or proprietary information that is disclosed by or on behalf of Provider or Customer (each, in such capacity, a disclosing party) to the other (in such capacity, a recipient) or is otherwise received by a recipient. Confidential Information includes but is not limited to: trade secrets, proprietary information, technical processes and formulas, the Software, product designs, any sales, cost, and other unpublished financial information, product and business plans, strategies, projections and marketing data. Confidential Information does not include information that is (i) generally known to the public through no act or omission of recipient; (ii) developed by the recipient without use of or reference to the disclosing party’s Confidential Information; and (iii) lawfully obtained by recipient from any third party not owing any confidentiality obligation to the disclosing party. Confidential Information also does not include data that does not contain any PII and is maintained in a manner such that it cannot be manipulated to disclose any PII (“De-identified Data”).
Fees, Taxes, Payments and Cancellation
Upon Customer’s completion of the EX Program subscription registration, Customer shall be obligated to pay the fees identified to Customer in such registration process. Customer will also pay all applicable sales, use and services taxes, fees, assessments or charges imposed by any tax authority on the Services or payments in connection with Customer’s EX Program subscription. In the event Customer or the transactions contemplated under Customer’s EX Program subscription are exempt from such taxes, fees, assessments or charges, Customer shall furnish Provider with sufficient evidence of such tax-exempt status.
Customer must provide a current, valid, accepted method of payment, as such may be updated from time to time (a “Payment Method”) to subscribe to the EX Program. Provider will bill the subscription fees and taxes (as applicable) to Customer’s Payment Method monthly or annually (as Customer shall elect) until Customer’s EX Program subscription is cancelled or terminated. Customer may edit its Payment Method information by logging into Customer’s EX Program Account and using the “Edit Payment Method” feature. If a payment is not successfully settled, due to expiration of Payment Method, insufficient funds or otherwise, and Customer does not edit its Payment Method or cancel its EX Program subscription, Customer shall remain responsible for any and all uncollected amounts, and Customer authorizes Provider to continue billing the Payment Method, as it may be updated. This may result in a change to Customer’s billing dates.
By subscribing to the EX Program, Customer authorizes Provider to transmit or obtain information about Customer from third parties from time to time which may include but shall not be limited to (i) verification checks involving Customer’s credit card account or credit reports in order to authenticate Customer’s credit card account; (ii) obtain an initial credit card authorization; and (iii) protect Customer and Provider from fraud.
Customer will promptly inform Provider if Customer’s number of employees exceeds the limit of Customer’s subscription tier (e.g., 1-250, 251-500, 501-1,000, 1,000+). In such event, Provider will work with Customer to determine the appropriate subscription tier given the change in the number of Customer’s Authorized Users.
Monthly Billing – If Customer elects to be billed monthly for a multiple-month subscription, Customer agrees that its EX Program subscription will last until the subscription is cancelled or terminated pursuant to these Subscription Terms. Customer will be billed for the first month immediately upon registration at the then-prevailing rate. Thereafter, Customer will be billed on the same date each successive month for the length of Customer’s EX Program subscription. Customer may cancel its EX Program subscription by logging into Customer’s account online and using the “Cancel” feature. In the event that Customer’s cancellation occurs on or before the 15th day of a given month, then Customer’s EX Program subscription will remain in effect until the last day of that month. If Customer’s cancellation occurs after the 15th day of a given month, then Customer’s EX Program subscription will remain in effect until the last day of the following month, and Customer will be billed for such month, notwithstanding that the cancellation was requested in the immediately preceding month. If not cancelled or terminated, Customer’s EX Program subscription will be automatically renewed each month. Provider reserves the right to change the monthly subscription fee upon 30 days’ written notice to Customer.
Annual Billing – If Customer elects to be billed annually, Customer agrees that its EX Program subscription will last until the subscription is cancelled or terminated pursuant to these Subscription Terms. Customer will be billed the annual subscription fee immediately upon registration at the then-prevailing rate. Customer may cancel its EX Program annual subscription at any time prior to the anniversary date of Customer’s subscription registration in any given year (each, a “Renewal Date”) by logging into Customer’s account online and using the “Cancel” feature. Customer’s payments are non-refundable, and no refunds or credits will be given for partially utilized periods. If not cancelled or terminated, Customer’s EX Program subscription will be automatically renewed on each Renewal Date at the then-prevailing rate.
Audit
Provider shall have the right, at its sole expense, upon ten (10) day’s advance written notice to Customer, to audit Customer’s books, documents, papers, files, and records (including without limitation electronic records) for the prior twelve (12) month period, that, in Provider’s reasonable opinion, have any bearing on the parties’ rights and obligations hereunder (collectively, “Records”) including, without limitation, for the purposes of determining or confirming: (i) the actual number of Customer’s Authorized Users; and (ii) Customer’s compliance with these Subscription Terms. Provider may not conduct such audits more frequently than once per twelve (12) month period and shall use an Auditor of Provider’s choosing, in its sole discretion; provided that such Auditor generally adheres to and utilizes professional standards of its industry and agrees in writing to continue to do so in any such audit. It is understood that no such audit shall take longer than five (5) days.
Termination
Provider may restrict, suspend or terminate Customer’s EX Program subscription if Customer: (i) materially breaches these Subscription Terms; or (ii) makes an assignment for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of Customer’s property, or if Customer files a voluntary petition under federal bankruptcy or similar laws or similar state statutes or such a petition is filed against Customer and is not dismissed within 60 days.
Upon termination of Customer’s EX Program subscription by Provider all rights and obligations of Customer and Provider under these Subscription Terms and all licenses and Services shall cease, except as follows: (a) Customer’s liability for any fees due to Provider that accrued prior to the effective date of termination of Customer’s EX Program subscription shall not be extinguished and shall be immediately due and payable; (b) The provisions in these Subscription Terms pertaining to Proprietary Rights, Data Security and User PII, Confidentiality, Fees, Taxes, Payments and Cancellation, Intellectual Property, Statistical Analyses, Indemnification, Disclaimers and Limitations, Dispute Resolution, Injunctive Relief and the General Provisions shall survive any expiration, cancellation or termination of Customer’s EX Program subscription.
Intellectual Property
The rights, title and interest in and to the copyrights, trademarks, patents (if any), registered designs, domain names and all other proprietary or intellectual property rights in and to the Site, the BecomeAnEX Site, the Services and all Provider Content shall vest in and remain with Provider and/or its licensors. Customer shall not take any action inconsistent with such rights, title and interest.
Statistical Analyses
Provider shall have the right to compile, sell, license, distribute and/or publish statistical analyses and reports utilizing only aggregated, De-identified Data.
Indemnification
Customer agrees to indemnify, defend and hold harmless Provider, together with Provider’s directors, officers, employees, agents, vendors and licensors for any and all third party claims, demands, actions, suits, proceedings, liabilities (including statutory liability), penalties, awards, losses, costs, expenses, fines and reasonable attorneys’ fees alleging, resulting from or arising out of: (i) Customer’s violation of these Subscription Terms, as may be amended from time to time; (ii) the misuse or unauthorized use by Customer or any of Customer’s Authorized Users of the Site, the BecomeAnEX Site, the Services, the Provider Content and/or the Software; (iii) Customer’s breach of any statutory requirement, duty or law; and/or (iv) Customer’s gross negligence or willful misconduct.
Provider agrees to indemnify, defend and hold harmless Customer, together with Customer’s directors, officers, employees, agents, vendors and licensors for any and all third party claims, demands, actions, suits, proceedings, liabilities (including statutory liability), penalties, awards, losses, costs, expenses, fines and reasonable attorneys’ fees alleging that the Software infringes any intellectual property rights of any third party. If any Software becomes, or in Provider’s sole opinion is likely to become, the subject of a claim of infringement, Provider may, at its sole option: (i) obtain for Customer the right to continue using the Software; (ii) replace or modify the affected Software so that it becomes non-infringing while providing substantially equivalent functionality; or (iii) if such remedies are not available on commercially reasonable terms as determined by Provider in its sole discretion, terminate the license for the affected portion(s) of the Software and refund a pro rata portion of the Fees for the affected portion of the Software, as determined in Provider’s sole discretion.
Warranties
For the duration of Customer’s EX Program subscription, Provider warrants that the BecomeAnEX Site will in all material ways work consistent with the functionality of Provider’s publicly available BecomeAnEX smoking cessation digital platform. Customer shall notify Provider in writing, no later than five days following Customer’s first discovery that the BecomeAnEX Site fails to perform in accordance with this warranty. Provider shall, after receipt of Customer’s notice, remedy the applicable deficiency within a reasonable time. If Provider is unable to remedy the applicable deficiency as warranted, Provider may refund such portion of the applicable fee actually paid by Customer that is attributable to the deficiency, as determined in Provider’s sole discretion. In addition, for the duration of Customer’s EX Program subscription, Provider warrants that all Services and Support will be performed by qualified personnel in a good and workmanlike manner, consistent with generally accepted industry standards. Provider will not knowingly deliver any Software to Customer that contains computer code that is not a normal feature of the Software and that is designed or intended to, or has the effect of, disrupting, disabling, harming or otherwise materially impeding the normal operation of, or providing unauthorized access to the Software, a computer system, network, or other device (a “Virus”). Provider does not warrant and is not responsible for (i) any third-party products not provided by Provider, or (ii) services not provided solely by Provider, its agents and subcontractors (if any).
The remedies set forth above constitute Provider’s sole and entire liability and Customer’s exclusive remedies with respect to such warranties. Provider shall not be obligated to correct any breach of the above warranties if Customer has not promptly notified Provider of the specific existence and nature of such breach.
Disclaimers and Limitations
While we make every effort to ensure that the Site, the BecomeAnEX Site, the Services and the Provider Content is accurate and complete, all elements of the EX Program are provided on an “as-is,” “as available” basis only, without warranties of any kind (either express or implied) unless otherwise stated in these Subscription Terms. To the fullest extent permissible pursuant to applicable law, unless otherwise stated in these Subscription Terms, Provider, its suppliers, subcontractors, licensors and partners disclaim all warranties (express or implied), including without limitation implied warranties of merchantability or fitness for a particular purpose. Without limiting the foregoing, Provider does not warrant that the functions contained in or the access to the Site, the BecomeAnEX Site, the Services and/or the Provider Content or other content will be timely, uninterrupted, Error free or without omission, that all defects will be corrected or that the Site, the BecomeAnEX Site or and Software code will be completely free of Viruses or other harmful components. Neither Provider nor its suppliers, subcontractors, licensors or partners makes any representation regarding the use or the results of the use of the EX Program, including without limitation, the Site, the BecomeAnEX Site, the Services or the Provider Content in terms of their correctness, accuracy, completeness, reliability or otherwise.
Except for the indemnity obligations set forth herein, in no event will Provider’s liability (including any attorneys’ fees awarded) exceed the amounts paid or payable by Customer to Provider during the prior twelve (12) month period, as measured from the date on which any such liability is fully and finally determined in connection with the dispute resolution process under these Subscription Terms. Neither Customer nor Provider will be liable to the other for any special, indirect, incidental, consequential or punitive damages in connection with Customer’s EX Program subscription.
Dispute Resolution
Provider and Customer shall use good faith efforts to attempt to resolve, in an informal manner, all disputes that may arise regarding the enforcement of or obligations under these Subscription Terms. If such efforts are unsuccessful, except as may apply to injunctive relief, Provider and Customer will submit such dispute to binding arbitration in accordance with the then in effect Commercial Arbitration Rules of the American Arbitration Association. The arbitrator (or panel members, as the case may be) shall have experience in commercial contract and intellectual property laws, as applicable. All arbitration hearings shall be conducted in Washington, D.C. and any arbitration award rendered shall be final and binding on all parties to the proceeding. Judgment upon the arbitration award may be entered in any court having jurisdiction. Each party to the arbitration will bear its own attorneys’ fees, costs and expenses in connection with any such proceeding.
Injunctive Relief
In the event of a breach of certain provisions of these Subscription Terms, the non-breaching Party may suffer irreparable harm and significant damages, not fully compensable by money damages alone. Accordingly, the non-breaching Party shall be entitled to seek an injunction or similar equitable relief against such breach or threatened breach, in addition to any other legal or equitable remedies.
General Provisions
Governing Law
These Subscription Terms and Customer’s and Provider’s rights and obligations hereunder shall be governed by and construed in accordance with the laws of the District of Columbia, U.S.A., excluding that body of law applicable to choice of law.
Entire Agreement
These Subscription Terms constitute the entire agreement between Customer and Provider with regard to the subject matter hereof.
Waiver
The waiver by either Customer or Provider of a breach or a violation of these Subscription Terms by the other shall not be construed as a waiver of any subsequent breach of the same or any other provision of these Subscription Terms, nor shall either Customer’s or Provider’s delay or omission to exercise or avail itself of any right, power or privilege that it has, or may have under these Subscription Terms, operate as a waiver of any right, power or privilege by such party, except as may be expressly provided otherwise in these Subscription Terms.
Severability
If any provision of these Subscription Terms is held in conflict with law, the remaining provisions of these Subscription Terms shall remain in full force and effect to the fullest extent permissible by law.
Assignment
Customer’s rights and obligations under these Subscription Terms may not be assigned in whole or in part without the prior written consent of Provider, and any attempt to make such an assignment without such consent shall be null and void and of no force and effect.
Force Majure
In the event that either Customer or Provider is prevented from performing, or is unable to perform, any of its obligations under these Subscription Terms due to any cause beyond its reasonable control, the affected party’s performance shall be extended for the period of delay or inability to perform due to such occurrence; provided that the other party may cancel/terminate Customer’s EX Program subscription if such condition continues for a period of 60 consecutive days; provided, however, that this provision does not apply to any payment obligations in connection with Customer’s EX Program subscription.
No Agency/Independent Contractors
Nothing in these Subscription Terms shall create any partnership, joint venture, agency or employment relationship between Provider and Customer.
Notices
Any notice from either Customer or Provider to the other required under these Subscription Terms shall be in writing and either personally delivered or sent via nationally recognized overnight service.
Such notices shall be sent as follows or to such other address(es) as either Customer or Provider may from time to time designate in a notice to the other:
If to Provider:
Truth Initiative, 900 G Street, NW, Fourth Floor, Washington, D.C. 20001 Attn: Dr. Amanda Graham
with a copy to
Truth Initiative, 900 G Street, NW, Fourth Floor, Washington, D.C. 20001 Attn: Robert Falk, General Counsel
If to Customer:
Addressed to Customer’s designated contact and address as provided in Customer’s EX Program Subscription registration process.
All notices shall be effective upon delivery to the applicable notice address.