Terms of Service
This Agreement was last updated on February 17, 2020.
This Terms of Service (“Agreement”) governs all uses of the Service (defined below) provided by Fontdue, LLC, a Delaware limited liability company (“Fontdue”) to the Customer agreeing to this Agreement (“Customer”). By using the Service or any part of it, including by registering for the Service, Customer agrees to this Agreement effective on the date that Customer first uses the Service or registers for it (“Effective Date”). Customer’s continued use of the Service after the Effective Date means that Customer consents to any updates that Fontdue may make to this Agreement, which Fontdue may do by updating this online document and without separate notice to Customer.
“Customer” means the company or other legal entity agreeing to this Agreement.
“Customer Content” means fonts, data, materials and files submitted by or for Customer to the Service for display in the Customer Website.
“Customer Systems” means any and all hardware, software or other systems that Customer owns, leases or controls.
“Customer Website” means the website that Customer operates via the Service.
“Customization Services” has the meaning given in section 2.
“Documentation” means the document(s) that Fontdue makes available to Customer from time to time that provide instructions for using the Service.
“Fontdue Content” means information created by Fontdue and made available to Customer through the Service, including (a) licensed software developed by Fontdue, (b) the Documentation and (c) information that Fontdue will communicate to Customer during the Term through that software, by email and by other means of communication.
“Fontdue Marks” means any and all trademarks, service marks, logos or other branding owned or controlled by Fontdue relating to the Service or Fontdue. “Fontdue Marks” does not include any Intellectual Property of any third party.
“Intellectual Property” means copyrights, patents, trademarks, trade secrets, and trade dress. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Personnel” means a party’s employees and independent contractors.
“Service” has the meaning given in section 2.
“Third-Party Materials” means information, content or other material that is created by, provided by, originating in or owned by a Third-Party Service and which Fontdue makes available through the Service.
“Third-Party Service” means unmodified software or services provided by third parties and which is either (a) provided by Fontdue or one of Fontdue’s Partners to Customer in connection with the Service or (b) required by Fontdue to be obtained by Customer in order for Customer to use Fontdue products.
Customer has the option, but not the obligation, to purchase additional Customization Services from Fontdue. “Customization Services” means Fontdue’s professional design and development services, which Customer may purchase to assist Customer with optimizing and tailoring its Customer Website front end. To the extent Customer purchases Customization Services, the “Service” as used in this Agreement includes those Customization Services and the parties will enter into a separate written agreement concerning those Customization Services.
Access and Use.
Access and License. Subject to and conditioned on Customer’s payment of the Fees and compliance with this Agreement, Fontdue hereby grants Customer (a) a non-exclusive, worldwide, revocable, non-transferable license to copy, perform, display, modify, distribute and transmit the Fontdue Content within the Customer Website during the Term and (b) a non-exclusive, worldwide, revocable, non-transferable right to access and use the Service during the Term. Such use is limited to Customer’s internal use. Fontdue will provide to Customer the necessary passwords and network links or connections to allow Customer to access the Service.
Documentation License. Subject to this Agreement, Fontdue hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Service.
Use Restrictions. Customer will not at any time during or after the Term, directly or indirectly: (a) sell, resell, license, sublicense, distribute, rent or lease any part of the Service or any Fontdue Content, or disclose any of them to any third parties without compensation; (b) use the Service to store, use or transmit material in violation of third-party privacy or Intellectual Property rights; (c) use the Service to store or transmit Malicious Code, or disable, impair or conduct penetration tests or scans of any hardware, software or other systems that Fontdue owns, leases or controls; (d) interfere with or disrupt the Service’s integrity or performance; (e) permit direct or indirect access to or use of the Service or Fontdue Content in a way that circumvents a contractual usage limit, or access or use any Fontdue Intellectual Property except as this Agreement allows; (f) modify, copy, or create derivative works based on the Service or Fontdue Content or any part of either of them; (g) frame or mirror any part of the Service or any Fontdue Content, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes or as permitted in the Documentation; (h) remove or modify any Fontue Marks or other attributions that Fontdue may include in the Service or Fontdue Content; (i) use the Service in a way not expressly authorized by this Agreement; or (j) disassemble, reverse engineer, or decompile any part of the Service or any Fontdue Content, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Service is within the scope of any patent.
Any use of the Service in breach of this Agreement by Customer that in Fontdue’s sole judgment threatens the security, availability or functioning of the Service may result in Fontdue’s immediate suspension of the Service (in which case, however, Fontdue will use commercially reasonable efforts to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension).
Suspension. Fontdue may temporarily suspend Customer’s access to any part or all of the Service: (i) if Fontdue reasonably determines that (A) there is a threat or attack on the Service; (B) Customer’s use of the Service disrupts or poses a security risk to the Service or to any other customer or vendor of Fontdue; (C) Customer uses the Service for fraudulent or illegal activities; (D) Customer becomes the subject of any bankruptcy, liquidation, dissolution, or similar proceeding; or (E) Fontdue’s provision of the Service to Customer is prohibited by applicable law; (ii) if any vendor of Fontdue has suspended or terminated Fontdue’s access to or use of any Third-Party Services or products required to enable Customer to access the Service; (iii) on receipt of a court order or law enforcement request directing such suspension; or (iv) in accordance with section 8.1 (any such suspension described in subclause (i), (ii), (iii) or (iv), a “Service Suspension”). Fontdue will use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Service following any Service Suspension. Fontdue shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Fontdue will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
Modification and Discontinuance. Fontdue may modify the Service and/or Fontdue Content at any time during the Term, with or without prior notice to Customer, and Fontdue will not be liable to Customer for any such modification. It may be necessary for Fontdue to perform repairs or maintenance or remotely patch or upgrade the Service, which may temporarily degrade the quality of the Service or the Fontdue Content or result in a partial or complete outage of the Service or the Fontdue Content.
Aggregated Statistics. Fontdue may monitor Customer’s use of the Service and collect and compile Aggregated Statistics. Fontdue may (a) make Aggregated Statistics publicly available in compliance with applicable law (except where doing so would violate a written non-disclosure agreement between the parties) and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information. Fontdue will have and retain all right, title, and interest in Aggregated Statistics and all intellectual property rights therein, and Fontdue may use Customer Content that is input into the Service to compile Aggregated Statistics. “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Fontdue in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
Public Promotion of Customer Website. From time to time before and after the Term, Fontdue may promote the Customer Website. Customer hereby grants Fontdue a perpetual, worldwide, royalty-free, non-exclusive right and license to use any version of the Customer and any portion of it (including names, trademarks and logos appearing in the Customer Website) in Fontdue’s advertising materials. Customer hereby waives any claims against Fontdue concerning attribution, moral rights, artists’ rights or any similar rights worldwide that may impede or limit the foregoing grant.
Availability. During the Term, Fontdue will use commercially reasonable efforts to make the online elements of the Service available 24 hours a day, 7 days a week, 365 days a year, except for: (a) planned downtime (of which Fontdue will give advance electronic notice), (b) downtime resulting from downtime of Fontdue’s hosting provider or of any other Third-Party Services; and (c) force majeure events defined in this Agreement.
Customer Service. Except for providing the Documentation and as otherwise expressly provided herein, Fontdue will not provide training, onboarding or other customer services to Customer or any third party.
Updates. Fontdue may from time to time in its sole discretion develop and provide Service updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. Customer agrees that Fontdue has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
Reservation. All right, title, and interest in the Intellectual Property embodied in the Service, the Fontdue Content and the Fontdue Marks will belong solely to Fontdue or to the Third-Party Service that owns or licenses such Intellectual Property. All right, title, and interest in the Intellectual Property embodied in the Customer Content will belong solely to Fontdue (or, in the case of third-party Intellectual Property that may be incorporated into the Customer Content, to the relevant holder of Intellectual Property rights). Any and all Intellectual Property rights in Third-Party Materials belong to their respective owners. Customer will have no rights in the Service except as this Agreement expressly grants.
Customer’s License to Fontdue. Customer hereby grants Fontdue (and third-party hosting services used by Fontdue) a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of, publish, communicate, display publicly, perform and distribute Customer Content for the limited purposes of letting Fontdue provide, promote, protect and improve the Service.
Feedback. Fontdue may allow Customer to provide Fontdue with comments or suggestions about Fontdue or the Service (“Feedback”). Customer hereby grants Fontdue a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license to copy and store any Feedback and use it to develop new products, improve or modify the Service or as Fontdue may otherwise deem appropriate.
Customer’s Responsibilities and Use of the Service.
Customer’s Responsibilities. During the Term, Customer will (a) use the Service and Customer Website consistent with this Agreement, with the Documentation and with applicable laws; (b) be responsible for the accuracy, quality and legality of Customer Content, the means by which Customer acquired Customer Content and Customer’s use of Customer Content with the Service and Customer Website; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Fontdue promptly of any such unauthorized access or use; and (d) comply with any terms of service or similar agreements used by any Third-Party Services that Customer may use in connection with the Service.
Subscription. The Service is purchased as a subscription. Depending on the extent to which Customer actually chooses to use the Service during the Term, Customer’s actual use of the Service may not make full use of all aspects of the Service in a particular month.
Term and Termination.
Term. The term of this Agreement begins on the Effective Date and terminates one month later (the “Initial Term”) unless terminated earlier or extended in the ways described here. This Agreement will automatically renew for successive one-month periods (“Renewal Terms”) after the Initial Term’s end. The “Term” means the Initial Term and all Renewal Terms together.
Termination. Fontdue may terminate this Agreement and Customer’s subscription(s) under them (a) immediately by notice to Customer if Customer has failed to cure any material breach of this Agreement within 14 days after receiving notice of same from Fontdue, including failure to make any required payment; or (b) on 30 days’ notice to Customer for any reason. Customer may terminate this Agreement at any time for any reason.
Effect of Termination. Any termination of this Agreement will also contemporaneously terminate all licenses and access authorizations that it grants.
Refunds. Customer will be entitled to no refunds for any Fees once paid.
Destruction of Customer Content. At any time after termination, Fontdue reserves the right to destroy any Customer Content that Customer has provided to Fontdue. It is therefore essential that Customer not provide Fontdue with any unique copies of any important materials and always retain copies of any materials that Customer provides to Fontdue.
Fees and Payment.
Fees. In consideration of Customer’s access to the Service, Customer will pay Fontdue, at the beginning of each month of the Term, the Fee specified in the payment page(s) of the Service (subject to change under section 8.2). The Fee for any Renewal Term is payable within 7 calendar days after the renewal date. Payments must be made in the manner specified in Exhibit 1. All Fees are nonrefundable except as expressly provided herein.
Fee Adjustments. At any time more than fourteen calendar days before the end of the Initial Term or a Renewal Term, Fontdue may notify Customer that the License Fee will change in the next Renewal Term. Customer will then have the option to terminate Customer’s subscription(s), but Customer’s subscription(s) will remain in effect unless and until Customer terminates. If Customer does not terminate, Customer will be deemed to have agreed to the changed License Fee.
Taxes. Each party will be responsible for its own taxes properly levied on it by virtue of its undertakings hereunder.
Future Functionality. Customer agrees that Customer’s purchases and entry into this Agreement are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Fontdue regarding future functionality or features.
Representations and Warranties.
Each party represents to the other that it has the right, power and authority to enter into and perform its obligations under this Agreement.
The Service is provided “as is” without warranty of any kind. Fontdue disclaims all warranties to Customer and to any third party, whether express, implied or statutory, regarding the Service, including without limitation any and all implied warranties of merchantability, accuracy, results of use, reliability, fitness for a particular purpose, title, non-infringement of third-party rights and any warranties or conditions arising out of course of dealing or usage of trade. Fontdue also disclaims any warranty that the Service will be uninterrupted, error-free, virus-free, or secure, or that Customer Systems will be protected from every form of attack.
The Service may include or provide Customer with the option to use features that collect sales tax, value added tax or other taxes from Customer’s own customers via the Service (“Tax Collection Features”). Fontdue makes no warranty that any Tax Collection Features comply with any applicable law or will ensure Customer’s or its customers’ compliance with any applicable law. The Tax Collection Features are offered purely as a tool that Customer may use as part of Customer’s own tax compliance strategy. Customer should consult with a tax professional in each relevant jurisdiction before using Tax Collection Features.
Fontdue does not provide any warranties regarding any Third-Party Materials or Third-Party Services. Any warranty relating to Third-Party Materials will only be provided by the Third-Party Service offering such materials. Customer assumes the entire cost of all necessary servicing, repair, or correction of problems caused by viruses or other harmful components, unless such errors or viruses are the direct result of Fontdue’s gross negligence or willful misconduct.
The Third-Party Materials may vary during the Term if Fontdue from time to time chooses to remove individual Third-Party Services from the Service, or if Third-Party Services cease offering those Third-Party Materials, discontinue Fontdue’s access to them or make them available to Fontdue on terms that Fontdue in its sole discretion deems commercially impracticable. Accordingly, Fontdue does not warrant or guarantee that any or all Third-Party Materials accessible via the Service at the time of execution of this Agreement will remain accessible to Customer throughout the Term.
The disclaimers in this section apply to the greatest extent permitted by applicable law and notwithstanding anything else in this Agreement.
Limitation of Liability
Except with respect to either party’s indemnification obligations hereunder or damages arising from either party’s violation of the other party’s Intellectual Property rights, (a) neither party will be liable to the other party or to any third party for any incidental, indirect, punitive, special or consequential damages relating to this Agreement or to the Service and (b) Fontdue’s aggregate liability for any and all claims relating to or arising from this Agreement or from the Service under any theory will not exceed the total Fees paid by Customer to Fontdue under this Agreement in the three months before the event giving rise to the claim or $10,000, whichever is less.
Fontdue will have no liability to any third party for any losses or damages under any theory of liability.
The limitations in this Section 11 will apply to all claims for damages, whether based in contract, warranty, strict liability, negligence, tort, or otherwise, and regardless of the person bringing the claim.
This Section 11 (“Limitation of Liability”) is intended to be as inclusive as Delaware law and any other applicable law permit. Customer’s agreement to this Agreement confirms that Customer has read this Section 11, fully understands it, has had the opportunity to discuss it with legal counsel of Customer’s choice, understands that through it Customer is giving up substantial rights, and intends to completely and unconditionally release liability to the greatest extent allowed by law.
Fontdue will indemnify, defend and hold harmless (collectively “indemnify” or “indemnification”) Customer and Customer’s officers, directors and employees (“Customer Indemnitees”) from and against any third party claims, demands, actions and proceedings, and any resulting liabilities, damages, costs and expenses (including reasonable legal fees and expenses), brought against any Customer Indemnitee, alleging that the Service infringes any patent, trademark or copyright of any third parties. Such indemnification, however, excludes claims that arise or result from (A) any use of the Service by Customer or by any other party that violates this Agreement; (B) the combination, operation, or use of the Service in connection with a third-party product or service; (C) modifications to the Service not made by Fontdue; (D) Customer Content; or (D) Third-Party Services.
Customer will promptly notify Fontdue in writing of any action, threat of suit or claim for arbitration that Customer receives that may qualify for the indemnification provided herein. In such a case, the parties will confer in good faith regarding the appropriate course of conduct, and Fontdue will have sole discretion regarding the disposition and any settlement of the matter.
This indemnification is the sole and exclusive remedy available to Customer with respect to any third-party Intellectual Property claims against any Customer Indemnitee.
Customer System Requirements.
The Service may not perform as intended or advertised, and may not function at all, on operating systems or web browsers that are more than three years old at the time of Customer’s use of them with the Service.
Links from the Service.
If the Service contains links to other sites and resources provided by third parties, these links are provided for Customer’s convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. Fontdue has no control over the contents of those sites or resources and accepts no responsibility for them or for any loss or damage that may arise from Customer’s use of them. If Customer decides to access any of the third party websites linked to the Service, Customer does so entirely at Customer’s own risk and subject to the terms and conditions of use for such websites.
Reservation. Nothing in this Agreement will preclude or limit Fontdue’s rights to market, make available or license any product that Fontdue now offers or may in the future offer.
Nature of Relationship. Each party will act as an independent contractor with respect to this Agreement, and Personnel of one party will not be considered to be Personnel of the other. This Agreement creates no agency, partnership, joint venture, other joint relationship or fiduciary relationship. Neither party may make any commitments binding on the other, nor may either party make any representation that they are acting for, or on behalf of, the other.
Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement except as this Agreement may expressly provide.
Assignment. Customer may not assign or transfer any of Customer’s obligations, licenses or rights under this Agreement without Fontdue’s prior written consent. Fontdue may assign this Agreement without Customer’s prior notice or consent.
Force Majeure. Neither party will be held liable for failure to perform any obligation of or delay in performance resulting from or contributing to any cause beyond that party’s reasonable control, including without limitation any act of God, act of civil or military authority, act of war or terrorism, act (including delay, failure to act, or priority) of any governmental authority, power outages, civil disturbance, insurrection or riot, sabotage, fire, severe weather conditions, earthquake, flood, strike, work stoppage or other labor difficulty, embargo, delay in transportation or embargoes. The affected party’s obligations will be suspended solely to the extent caused by the force majeure and so long as it lasts, and the time for performance of the affected obligation will be extended by the time of the delay that the force majeure causes.
Export Regulations. Each party warrants that it will comply in all respects with any export and re-export restrictions imposed by any U.S. or foreign law to the Service. Each party represents that it is not named on any U.S. government denied-party list.
Agreement Binding on Successors. This Agreement will bind and inure to the benefit of the parties and their heirs, administrators, successors, and permitted assigns.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
Waiver. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
Entire Agreement. This Agreement is the entire understanding of the parties and supersedes all prior agreements between them concerning its subject matter. Any amendment must be in writing and expressly state that it is amending this Agreement.
Governing Law. The laws of Delaware, except for conflict-of-law rules, will apply to any dispute related to the Service or to this Agreement.
Dispute Resolution. The parties will attempt to settle any dispute or claim by either of them relating to this Agreement by good-faith consultation. If such consultation yields no satisfactory resolution of the dispute or claim, then either party may submit it to arbitration by the JAMS dispute resolution organization. The arbitration will be held, and the award will be rendered, in New York, New York. The award will be final and binding on the parties as from the date rendered, and will be the sole and exclusive remedy between the parties regarding any claims, counterclaims, issues, or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof. In the case of any dispute, the prevailing party to this Agreement will be entitled to recover reasonable attorneys’ fees and costs, including expert witness fees, from the other party.
Time Limitation on Disputes. Customer will bring any claim, action or proceeding that Customer may have against Fontdue (or against any of Fontdue’s Personnel, directors or officers) within one year after the cause of action has accrued or within one year after the termination of this Agreement, whichever is earlier.
Notices. Notices to Fontdue under this Agreement are accepted only when sent by email to [email protected]
Survival. The following sections of this Agreement will survive their termination: sections 10 (disclaimers); 11 (limitation of liability); 12 (indemnification); 15.4 (assignment); 15.6 (export regulations); 15.7 (successors); 15.10 (entire agreement); 15.11 (governing law); 15.12 (dispute resolution); 15.13 (time limitation on disputes); 15.14 (notices).