Published: May 4th 2018
These Terms of Service (“Agreement”) of are agreed to by and between Lattice Media Inc. (“SpinRamp”) and by you, the Customer of the SpinRamp service (collectively “the Parties”) and is effective as of the start date (“Effective Date”) of the Subscription (see Definitions).
1.1 SpinRamp Service
The SpinRamp Site and the associated SpinRamp application, as well as all related websites, applications, and other services provided by us directly or through APIs, Resellers or 3rdParty partners.
1.2 SpinRamp Site
The website, located at https://SpinRamp.com
1.3 Service Account
A Service Account is provided to a named authorized individual authorized by the Customer and consists of a Username, Password and a named Customer Workgroup. The Username, Password and Workgroup may be chosen by the Customer, subject to SpinRamp naming conventions and other rules as specified from time to time.
1.4 Service API
The Service API is an interface for 2ndParty or 3rdParty Services operating on behalf of the Customer to retrieve or post information and content to and from the SpinRamp Service.
Service API’s used by Customer’s will also have a named individual authorized by the Customer who will be provided access to the Service API.
Modules are Customer-evident groups of related functional capabilities of the SpinRamp Service that are referenced in the Service Pricing Plan and measured for Service Usage.
1.6 Service Usage Level
Service Usage Level is the itemized and metered use of the service and service tiers ( e.g storage, number of trackers, number of Service Accounts), Modules and Add-on functionality in Modules (e.g. Basic or Advanced Reporting) for Subscription Pricing and other operational purposes.
1.7 Service Pricing Plan
The standard SpinRamp listed one-time or recurring cost for purchasing functionality represented by Modules, other Add-on functionality and Service Usage over a period of time.
Any entity or individual that is a signatory to this Agreement. Customer includes Employees, Advisers, Officers, Contractors, Affiliates and Agencies of the Customer including all Customer Users.
1.9 Authorized Signatory
A named individual who has authority to enter into a commercial commitment and a Service Subscription on behalf of a Customer.
Entity which is directly or indirectly controlling, controlled by, or under common control with a party to this Agreement.
Customer’s representatives, advertising agencies and/or other Customer service providers.
Are subcontractors, suppliers, resellers and advisors of the Customer.
1.13 Customer Operator:
A Customer User provided a Service Account.
1.14 Customer Administrator:
A Customer User that manages Customer Operators on behalf of the Customer and is accountable by the Customer to ensure the SpinRamp Service is accessed, operated or in any way interacted with in a manner compliant and subject to these Terms of Service, and applicable laws.
1.15 Customer User
Named individual designated by Customer to access, operate, subscribe to or in any way interact with the SpinRamp Service on behalf of the Customer and consisting of Customer Administrators or Customer Operators collectively known as Customer Users.
1.16 Customer Workgroup
The shared workspace within the SpinRamp Service used by Customer Users in order to operate the SpinRamp Service.
Each Workgroup can support multiple Customer Administrators, multiple Customer Operators and independent Customer Audiences.
Entities or individuals that our Customers interact with via the SpinRamp Service
Entities or individuals that our Customers interact with, directly or indirectly, to amplify Customer messages, content and campaigns with Consumers or to engage with more Respondents.
Entities or persons who are not necessarily interacted with directly but whose data is aggregated at request of Customer Users. Members of the Audience may engage with Customer as Respondents or Influencers as well.
1.20 Service User
Collectively Customers, Respondents, Influencers and Audience.
1.21 Customer Dataset
Includes but is not limited to personally identifiable information, content, markers or identifiers, service logs, network or web history, cookie information, co-related personally identifiable information of all Service Users associated with a Customer.
Means accessing available content, markers or identifiers within an application or network, cookies on a computer, correlating other personally identifiable information and content from all parties or using or accessing such information in any way, including, but not limited to, collecting, storing, deleting, using, combining and disclosing the Customer Dataset, all of which activities may take place in the United States or other countries.
1.23 Beta Software
Software functionality that is still in testing, not fully proven or released, may exhibit faulty functionality, limited availability and unpredictable performance, it may affect core functionality of proven software; and may not include full documentation. Use of such software may present high and / or unlimited business, privacy, data, financial and other risks to the Customer and their Service Users. Such software is provided to as is, either for free or deeply discounted for a certain period of time (“Beta Period”).
1.24 Evaluation Software
Software functionality that is proven and ready for commercial use and is provided to a Customer either for free or deeply discounted for a certain period of time (“Evaluation Period”) solely for evaluating its functionality, performance and suitability for the Customer’s own business objectives.
1.25 Service Subscription Order (SSO)
The contract committing a Customer to Subscription Payments in exchange for a Customer selected and available Service Usage Level and commensurate Subscription Pricing, subject to these Terms of Service.
1.26 Service Upgrade
A higher tier of Service Usage Level above that selected in the current SSO, either in Modules, Level of Usage or Add-ons.
1.27 Subscription Pricing
Is the pricing and payment terms for the SpinRamp Service commensurate with the Service Usage Level selected by the Customer and the applicable Service Pricing Plan
1.28 Subscription Usage
The actual usage which may be different from the planned Service Usage Level selected by the Customer.
1.29 Subscription Fee:
Payments owed by Customer to SpinRamp, under the SSO, in consideration of Customer’s use of the SpinRamp Service commensurate with the agreed upon Service Pricing and Subscription Usage.
Subscription Payments will be made by Customer to SpinRamp in cash or on pre-approved credit terms specified in SSO. In the case of fully discounted Subscription Pricing the Subscription Payment may be in-kind subject to prior written approval by SpinRamp.
1.30 Subscription Term
The contracted duration of the SSO which begins on the Effective Date of the SSO.
1.31 Subscription Termination Date
The planned end date of the Subscription Term, and if terminated the actual date of termination, of a SSO.
Any losses, liabilities, costs, expenses (including reasonable attorneys’ fees and expenses), penalties, judgments, settlement amounts and damages.
Entities or Individuals who either promote and endorse a Customer’s brand, product or services, either explicitly or implicitly by association or placement, in some cases, in exchange for a fee either in cash or in-kind.
Entities or Individuals who either promote and endorse a Customer’s brand, product or services, either explicitly or implicitly by association or placement, in some cases, in exchange for a fee either in cash or in-kind.
Is the Customer.
Any other party that is not a party to this Agreement but provides or uses some aspect of the SpinRamp Service on behalf of the Customer or SpinRamp.
1.37 3rdParty Services
Any provider of services that is not SpinRamp or the Customer. Services include but Is not limited to firmware, hardware, software, cloud, data, datacenter, networking, connectivity, cyber security, consulting, marketing.
1.38 3rdParty Terms of Service
The Terms of Service of a 3rdParty Service that either SpinRamp or Customer or both may need to agree to in order to facilitate it as part of SpinRamp Service.
1.39 3rdParty Authentication
A 3rdParty Service that provides an authentication and access control service which may be used to provide access to select SpinRamp Service functionality to various Service Users.
1.40 Connected Applications
A 3rdParty Service that includes various social media services, publishing portals, event, email, chat and other applications supported by the SpinRamp Service that Customer desires to connect to through the SpinRamp Service.
1.41 Connected Subscriptions
The subscription relating to the Customer’s Connected Applications, which enable the SpinRamp Service to interact with Customer’s Connected Applications accounts and which may need to be renewed and paid for, from time to time either through the SpinRamp Service or directly by the Customer on the Connected Application.
1.42 Connected Application Authorization
The authorization relating to the Customer’s Connected Applications accounts, which enable the SpinRamp Service to interact with Customer’s Connected Applications accounts and which may need to be credentialed from time to time either through the SpinRamp Service or directly by the Customer on the Connected Application.
1.43 Prohibited Content
Content that is (i) defamatory, harmful to minors, obscene, indecent, racist, homophobic, discriminate by religion, pornographic, libelous, threatening, harassing, false, misleading, inaccurate or willfully inflammatory; (ii) contains or causes to be placed on SpinRamp’s or other third party’s systems any Trojan horses, worms, viruses or programming routines intended to interfere, damage, corrupt, surreptitiously intercept or expropriate any system, data or personal information; (iii) violates any applicable local, state, federal or foreign law, rule or regulation, including privacy laws and privacy standards (collectively, “Laws”); (iv) violates any rule or policy of any Connected Service; (v) infringes or violates any third party rights; or (vi) contain any health, medical, financial, credit card or other payment information or any information of any person under the age of 13, or if above 13 without their signed written consent.
1.44 Customer Content
Any material in any format (video, audio, text, images or mixed media), regardless of Customer’s knowledge or intent, that is (i) published or entered into the SpinRamp Account by Customer, an Agency or employee on behalf of or under the direction of Customer or (ii) published or intended to be published to the Connected Applications which SpinRamp is Authorized to manage, through the SpinRamp Account (iii) a result of a search or tracking request based on keywords entered by the Customer where the results, 3rdParty Content, were to be reasonably anticipated based on the keywords (iv) willfully requested from Respondents (v) invoked, provided to or suggested to Influencers or where they are incentivized to create it.
1.45 Inbound Customer Content
Customer Content that is actively imported, uploaded, searched, tracked or created by the Customer in the SpinRamp Service.
1.46 Outbound Customer Content
Customer Content that is intended for publication, distribution, promotion and dissemination either directly or indirectly through other partners, including Service Users.
1.47 3rdParty Content
Any content that is not Customer Content.
1.48 Incidental Content
Any 3rdParty Content that was accidentally introduced into Customer Content.
1.49 Maintenance Update
Modifications and changes made by SpinRamp to the SpinRamp Service which SpinRamp makes generally available to its customers at no additional fee. Updates exclude new features, functions and capabilities which are offered for an additional fee.
1.51 SpinRamp Acceptable Use Policy
SpinRamp’s Acceptable Use Policy (AUP) located at www.SpinRamp.com/AUP
1.52 SpinRamp Service Level Agreement (SLA)
SpinRamp’s Service Level Agreement (SLA) located at www.SpinRamp.com/SLA
1.53 SpinRamp Professional Services Agreement (PSA)
SpinRamp’s Professional Service Agreement (PSA) will define the terms and payment to SpinRamp for execution and delivery of tasks, deliverables and software functionality as set forth in an associated SOW. A PSA must be agreed upon in writing by both SpinRamp and Customer.
Statement of Work – defining development, integration, advisory or consulting not available as part of the SpinRamp Service to be performed by SpinRamp for a specific Customer.
1.55 SpinRamp Portfolio Services
SpinRamp Service and Professional Services.
1.56 User Documentation
SpinRamp materials made available to Customer to assist users of the SpinRamp Service. Such materials may be updated or withdrawn at anytime, with no notice, at SpinRamp’s sole discretion.
2 FEES AND PAYMENT
2.1 Customer shall pay SpinRamp all Subscription Fees set forth in each applicable SSO and/or PSA (collectively, “Fees”) within thirty (30) days of the invoice date, unless stated otherwise in an applicable SSO and/or PSA. Customer may withhold payment of any Fees that are the subject of a good faith dispute of which Customer has provided SpinRamp written notice within five (5) business days of invoice receipt (“Disputed Fees”); provided that all Fees which are not Disputed Fees shall be timely paid, and the Disputed Fees shall be paid within ten (10) days of resolution of the dispute.
2.2 Unless stated otherwise in an applicable SSO and/or PSA by SpinRamp, all Feesset forth in an SSO are payable in advance and are non-cancelable, non-refundable and are based on the SpinRamp Portfolio Services purchased and not based on usage. Customer shall reimburse SpinRamp for all reasonable out-of-pocket expenses incurred in performing the Professional Services as described in the applicable PSA upon the submission to Customer of applicable receipts or other documentation.
2.3 SpinRamp reserves the right to charge Customer interest at the rate of the lesser of 1.5% per month, or the maximum rate permitted by law on anyFees not received by SpinRamp within fifteen (15) days of the payment due date. Additionally, in the event any Fees or expenses are more than thirty (30) days overdue, SpinRamp may (i) suspend its performance of the SpinRamp Services, and (ii) require full payment before SpinRamp Services resumes performance.
2.4 All Fees exclude taxes and Customer agrees to pay any applicable taxes charged arising from this Agreement in a timely manner, other than those based on SpinRamp’s income. If Customer is tax-exempt, Customer shall provide SpinRamp with its tax-exemption number and certificate within five (5) business days after the Effective Date. Customer shall be responsible for any liability or expense incurred by SpinRamp as a result of Customer’s failure or delay in paying taxes due or if Customer’s claimed tax exemption is rejected. If Customer is legally required to withhold tax from its payment of Fees to SpinRamp, and/or to pay any equalization taxes, Customer agrees to gross up all Fees that are subject to such withholding tax, and shall not be entitled to reduce the Fees on an SSO and/or PSA by any equalization taxes, such that the net payment received by SpinRamp is the full originally stated amount of such Fees.
3 INTELLECTUAL PROPERTY, RIGHTS OF USE
3.1 Customer owns all right, title and interest in and to all Customer Content uploaded, stored, processed or transmitted through the Service under the SpinRamp Account.
3.2 SpinRamp owns all right, title and interest in and to the SpinRamp Service and the User Documentation and all associated marks and copyrights.
3.3 Subject to the terms and conditions of this Agreement, SpinRamp grants to Customer a non-exclusive, nontransferable right to access and use the licensed modules of the Service for Internal Use, during the Term. The Service may be accessed and used solely by the number of Customer Users specified in the applicable SSO(s). Sharing of Service Accounts is prohibited. Service Accounts may only be reassigned to a new individual replacing one who will no longer use the SpinRamp Service.
3.4 Subject to the terms and conditions of this Agreement, the Customer (and their Affiliates and Agencies) may access and use the Service only for Internal Use in service of the Customer. All obligations of Customer shall apply equally to each Customer Affiliate and Agency that uses the SpinRamp Service; provided however, Customer shall be responsible for ensuring that all Customer Users comply with this Agreement and all acts or omissions of its Affiliates and Agencies under this Agreement.
3.5 A Customer (as defined in this Agreement) may not re-sell or in any way provide for reuse the SpinRamp Service to anyone else who is not the Customer. For the avoidance of doubt this Agreement specifically restricts the SpinRamp Service for end-use only by the Customer. The rights to resell the SpinRamp Service or act as an agency representative of a Customer without the Customer being a party to the Agreement are explicitly prohibited and will constitute a material breach of this Agreement.
3.6 Customer grants to SpinRamp during the term of this Agreement a royalty-free, non-exclusive, non-transferable, worldwide right and license: (i) to copy, cache, store, reproduce, perform, display, use, distribute, transmit and generally make available the Customer Content in electronic form via the Internet, through wireless communications services and social media through the SpinRamp Service in order to provide the SpinRamp Service to Customer in accordance with this Agreement; and (ii) to access Customer’s accounts on the Connected Applications in order to provide the SpinRamp Service.
3.7 The SpinRamp Acceptable Use Policy (AUP), in its current version at the Effective Date of this Agreement, shall be incorporated into this Agreement, in its entirety, and Customer will comply with the SpinRamp AUP.
3.8 The SpinRamp SLA, in its current version at the Effective Date of this Agreement, shall be incorporated into this Agreement, in its entirety, and SpinRamp will provide the SpinRamp Services in accordance with the SpinRamp SLA.
3.9 Customer will not, directly or indirectly (i) misappropriate or infringe SpinRamp’s intellectual property rights, (ii) reverse engineer, decompile, disassemble, disclose or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Service; (iii) modify, translate, or create derivative works based on the Service; (iv) use the SpinRamp Service for purposes of a third party or otherwise for the benefit of a third party (other than an Affiliate as permitted hereunder); or (v) use or view the Service for the purposes of developing, directly or indirectly, a product or service competitive to the SpinRamp Service.
4.1 “Confidential Information” means: (i) business or technical information, including product plans, designs, source code, marketing plans, business opportunities, personnel, research, development or know-how (all of the foregoing as they relate to the SpinRamp Service (current or planned), are SpinRamp’s Confidential Information, and all of the foregoing as they relate to Customer’s business, are Customer’s Confidential Information); and (ii) information designated by the disclosing party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential. Confidential Information includes information disclosed prior to or during the Term of this Agreement. Confidential Information shall not include information which: (i) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (ii) is or becomes available to the receiving party on a non-confidential basis from a third party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (iii) is developed independently by the receiving party without use of any of disclosing party’s Confidential Information and by persons without access to such Confidential Information.
4.2 Customer and SpinRamp each agree not to use any Confidential Information of the other party for any purpose other than as necessary to perform its obligations under this Agreement. During and after the Term, neither receiving party will disclose any Confidential Information of the disclosing party to any third party without the prior written consent of the disclosing party, except (i) where such disclosure is necessary for the performance of the receiving party’s obligations under this Agreement; or (ii) as may be required by Laws (provided that the party obligated to make the disclosure shall give the other party advance notice of such requirement to the extent legally permitted). Each receiving party shall be responsible for compliance with this Section and applicable provisions of this Agreement by its employees and Contractors, and shall obtain the agreement by each employee and Contractor to keep the Confidential Information of the disclosing party confidential and to use it solely as required for the performance of the receiving party’s obligations hereunder.
4.3 SpinRamp shall be free to use for any purpose the Residuals resulting from access to or work with the Confidential Information of the Customer. “Residuals” means information retained in the unaided memory by individuals who have had access to the Confidential Information, including ideas, concepts, know-how or techniques continued therein. SpinRamp shall have no obligation to pay royalties for work resulting from the use of Residuals. However the clause shall not be deemed to grant SpinRamp a license under the Customer’s copyrights or patents.
4.4 For the avoidance of doubt Customer grants to SpinRamp a non-exclusive, non-transferable worldwide royalty-free right, without limitation, to use any and all feedback, ideas, or suggestions related to the Service provided by Customer to SpinRamp or to any intellectual property arising thereof, or from any PSA or subsequent work performed.
SpinRamp’s may require addendums to this Agreement on a case by case basis, which if executed in writing and by mutual agreement of SpinRamp and the Customer, will be incorporated into and subject to the terms of this Agreement by reference.
6 PRVACY POLIC
7.1 Each party represents and warrants that it has the right and authority to enter into and perform its obligations under this Agreement and shall comply with all applicable laws.
7.2 SpinRamp warrants that during the Term, when used by Customer as expressly permitted hereunder, the Service shall substantially conform to the User Documentation and shall perform in all material respects in accordance with the terms of this Agreement, the SLA and each SSO. In the event Customer determines that the Service has not met the foregoing warranty, Customer shall give SpinRamp prompt notice of the deficiency, including details sufficient to allow SpinRamp to replicate the deficiency, and in such event SpinRamp will use commercially reasonable efforts to remedy the identified deficiency. If SpinRamp does not remedy the deficiency, either party may terminate the affected SSO or PSA and in such case SpinRamp will refund to Customer the amount of any pre-paid fees for the period after termination as its exclusive remedy. This warranty does not cover any problem with or damage to the SpinRamp Service to the extent caused by: (i) Customer’s negligence, abuse, misuse, improper handling and/or use, (ii) modifications by anyone other than SpinRamp or its Contractors; (iii) failure to operate the SpinRamp Service in accordance with the User Documentation; or (iv) a Force Majeure Event.
7.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOLE AND EXCLUSIVE WARRANTIES AND WARRANTY REMEDIES ARE SET FORTH IN THIS SECTION AND, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SPINRAMP SERVICE, INCLUDING ALL FUNCTIONS THEREOF, ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ACCURACY OF CONTENT, NON-INFRINGEMENT, NON-INTERFERENCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SPINRAMP SERVICE WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE.
8.1 SpinRamp shall indemnify, defend and hold harmless Customer and its Affiliates (the “Customer Parties”) from and against Losses incurred by a Customer Party arising from a claim, suit, action or proceeding brought by a third party (a “Claim”) against any Customer Party alleging that the SpinRamp Service (excluding the Content and use of the Connected Applications Authorization) when used by Customer as permitted hereunder infringes any third party intellectual property right. In the event it is held that the SpinRamp Service when used in accordance with this Agreement and the applicable SSO/PSA infringe a third party’s rights, SpinRamp shall at its expense either (a) procure for Customer the right to continue using the affected elements of the SpinRamp Service, or (b) replace or modify the affected elements of the SpinRamp Service, in whole or in part, so that it becomes non-infringing but provides substantially equivalent functionality. If SpinRamp, in its sole discretion, determines that neither (a) nor (b) are commercially reasonable, SpinRamp may terminate the provision of the affected functionality and refund to Customer any pre-paid fees, if un-used, for the portion of the Term of affected SSOs. Customer acknowledges that its right to obtain indemnification and the rights described in the preceding sentence are its sole and exclusive rights in the event of such a claim.
8.2 Customer shall indemnify, defend and hold harmless SpinRamp from and against Losses incurred by SpinRamp arising from a claim, suit, action or proceeding brought by a third party (a “Claim”) against SpinRamp alleging that the professional services performed under a SpinRamp PSA when used by Customer as permitted thereunder infringes any third party intellectual property right. In the event it is held that the work performed under SpinRamp PSA infringe a third party’s rights, Customer shall at its expense additionally pay SpinRamp to replace or modify the affected elements of the work performed under SpinRamp PSA, in whole or in part, so that it becomes non-infringing but provides substantially equivalent functionality. If Customer, in its sole discretion, determines that it is not commercially reasonable to do so, then Customer may terminate the provision of the affected functionality of the SpinRamp PSA and pay SpinRamp for all professional service performed to date for that functionality. SpinRamp acknowledges that its right to obtain indemnification and the rights described in the preceding sentence are its sole and exclusive rights in the event of such a claim.
8.3 Customer shall indemnify, defend and hold harmless SpinRamp and its Affiliates, (the “SpinRamp Parties”) from and against any Losses arising from a breach of this Agreement, any SSO, PSA or the Acceptable Use Policy.
8.4 The indemnification obligations contained in this Agreement are conditioned upon: (a) notice by the party seeking indemnity (“Indemnitee”) to the party from whom indemnity is sought (“Indemnitor”) of any Claim for which indemnity is claimed within five (5) days of the Indemnitee receiving notice of such claim (failure to meet this condition does not exempt the Indemnitor of its indemnification obligation, except to the extent that failure has materially prejudiced the Indemnitor’s ability to defend the Claim); (b) complete control of the defense and settlement of the Claim by the Indemnitor, provided that no settlement may be made without the consent of the Indemnitee, such consent not to be unreasonably withheld or delayed; and (c) reasonable cooperation by the Indemnitee in the defense as the Indemnitor may request. The Indemnitee has the right to participate in the defense against the indemnified Claims with counsel of its choice and at its own expense but may not confess judgment, admit liability or take any other actions prejudicial to the defense. Further, the Indemnitee may not settle an Indemnified claim unless such settlement includes an unconditional release of the other party from all liability on all Claims, or the other party gives its prior written consent, which shall not be unreasonably withheld.
8.5 THIS SECTION STATES EACH PARTY’S ENTIRE LIABILITY TO THE OTHER AND EACH PARTY’S SOLE REMEDY FOR ANY THIRD-PARTY CLAIM DESCRIBED IN THIS SECTION
9 LIMITATIONS OF LIABILITY
9.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES OR ANY OTHER MATTER RELATING TO THE SPINRAMP PORTFOLIO SERVICES.
9.2 EXCEPT FOR (I) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (II) THE PARTIES’ INDEMNIFICATION OBLIGATIONS; AND/OR (III) A BREACH OF SECTION 3.9, IN NO EVENT SHALL THE TOTAL LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE), ARISING FROM THIS AGREEMENT OR CUSTOMER’S USE OF THE SPINRAMP PORTFOLIO SERVICES, EXCEED, (i) FOR AN SSO, IN THE AGGREGATE, THE TOTAL FEES RECEIVED BY OR PAYABLE TO SPINRAMP FROM CUSTOMER UNDER THIS AGREEMENT IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY (ii) FOR A PSA ANY REMAINING FEES DUE SPINRAMP UNDER THE PSA. CUSTOMER ACKNOWLEDGES THAT SPINRAMP HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. IN NO EVENT SHALL THE LIMITATIONS IN THIS SECTION APPLY TO FEES DUE FOR THE SPINRAMP PORTFOLIO SERVICES UNDER THIS AGREEMENT.
9.3 Neither party will be liable to the other for any failure to perform, or delay in the performance of, any obligation under this Agreement caused by a Force Majeure Event.
10.1 This Agreement incorporates any exhibits, appendices and other documents referred to in it, including, but not limited to, the Acceptable Use Policy, the SLA and/or, if applicable, any data processing agreement. This Agreement together with each SSO and/or PSA is the entire agreement between the parties relating to this subject matter, and supersedes (i) any pre-printed terms on a purchase order, which shall have no effect, and (ii) all prior or contemporaneous understandings of the parties related thereto, including any separate non-disclosure agreement between the parties relating to this subject matter as it relates to confidential information disclosed after the date of and pursuant to this Agreement.
10.2 SpinRamp may modify this Agreement at any time, without notice, at its sole discretion. If any Customer does not agree to be party to such modifications, SpinRamp at its sole discretion may elect to continue the previous version of the Agreement for the Term of any specific SSO or terminate the SSO and provide a refund to Customer the amount of any pre-paid fees, if still unused, as its exclusive remedy. Likewise SpinRamp at its sole discretion may elect to continue the previous version of the Agreement only for a specific PSA or terminate the PSA
10.3 By executing this Agreement, Customer affirms and agrees that SpinRamp has not made any representations to induce Customer to enter this Agreement except for those representations explicitly set forth in this Agreement or in an SSO or PSA entered into under this Agreement. Customer disclaims reliance upon any representations of any kind whatsoever except for those set forth in this Agreement or SSO or PSA.
10.4 In no event may either party initiate any action against the other party pursuant to this Agreement more than one (1) year from the date the claim arose, or the minimum period such a limitation is permitted by applicable law.
10.5 Except as may be expressly provided herein, all remedies provided for in this Agreement are non-exclusive remedies.
10.6 Subject to prior written consent from SpinRamp, Customer may assign this Agreement in whole or in part (i) to an Affiliate; (ii) in connection with a merger where the contracting entity does not survive such merger, or (iii) in connection with the sale of all or substantially all of the contracting entity’s assets related thereto
10.7 SpinRamp may assign this Agreement in whole or in part (i) to an Affiliate; (ii) in connection with a merger where the contracting entity does not survive such merger, or (iii) in connection with the sale of all or substantially all of the contracting entity’s assets related thereto.
10.8 SpinRamp may identify Customer as a SpinRamp Customer in SpinRamp’s marketing materials, promotional presentations, customer lists, website and other written and electronic materials (name and logo). Any other uses of either party’s name and logo shall be subject to the prior review and approval of the owning party, such approval not to be unreasonably withheld.
10.9 SpinRamp has the worldwide, perpetual, irrevocable right and license to use non-personal aggregated statistical data, that does not have any personally identifiable information, derived from the operation and use of the SpinRamp Service (“Statistical Data”) for internal business and/or operating purposes only, provided that SpinRamp does not share with any third party Statistical Data which reveals the identity of Customer, Customer Users, or Customer’s Confidential Information except as permitted pursuant to Section 4.
10.10 Nothing in this Agreement will create any association, partnership, or joint venture between the parties. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty outside those expressly stated in this Agreement.
10.11 If a court of competent jurisdiction finds any provision of this Agreement unenforceable, all other provisions will remain in full force and effect and the unenforceable provision will be replaced with an enforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision.
10.12 In the event of a conflict between any provision of this Agreement and an PSA or SSO, the terms of the PSA or SSO shall prevail with respect to the matters covered by the applicable PSA and/or SSO.
10.13 No failure or delay of either party in the strict enforcement of its rights under this Agreement shall be construed as a waiver by that party of those rights.
10.14 The headings and sub-headings used in this Agreement are for convenience and understanding only and do not affect the interpretation of the Agreement
11 TERM AND TERMINATION
11.1 The term of this Agreement will begin on the Effective Date and continue until expiration or termination of all SSO’s and/or PSA’s (the “Term”). Each SSO and PSA will have its own term as stated in such document.
11.2 Either party may terminate this Agreement and all SSOs and PSA’s in the event that the other party is in material breach of this Agreement, and/or any SSO or PSA, which has not been cured within thirty (30) days following receipt of written notice of such breach.
11.3 Upon expiration or termination of this Agreement: (i) in the event of termination due solely to a breach by SpinRamp, then SpinRamp shall refund any prepaid fees for SpinRamp Portfolio Services that would have been rendered after the date of termination; (ii) in the event of termination due solely to a breach by Customer, then Customer shall pay all fees through the date of termination, plus all fees through the remainder of the term of the applicable SSO and/or PSA; (iii) all rights to use the SpinRamp Service immediately cease and provision of Professional Services immediately ends; (iv) within thirty (30) days, each party will return or destroy at the disclosing party’s request the other party’s Confidential Information; and (v) Sections 3, 4, 8, 9, 10, 12,13 and if applicable any Addendums as contemplated in Section 5, shall survive, as well as any other provisions which by their terms or sense are intended to survive.
11.4 Within sixty (60) days after the effective date of termination SpinRamp will, upon Customer’s request, extract all available Customer Content from the SpinRamp Service. Both parties will agree to an acceptable transfer methodology. If Customer accounts are deactivated prior to the termination date, data contained within those accounts is not available any more, therefore Customer must extract the data prior to deactivating accounts. After such thirty (30) day period, SpinRamp shall have no obligation to maintain or return any Customer Content. Any reasonable expenses incurred by SpinRamp as a result of this extraction shall be the responsibility of Customer.
12 Choice of Law and Forum; Attorneys’ Fees
This Agreement will be governed by the laws of the State of California, without reference to conflict of law principles, as applied to agreements entered into and to be performed entirely within California between California residents.
Any dispute or claim relating to or arising out of this Agreement or its termination shall be fully and finally resolved by binding arbitration conducted by the American Arbitration Association in Santa Clara County, California.
HOWEVER, this arbitration provision shall not apply to any dispute or claim relating to or arising out of the misuse or misappropriation of SpinRamp’s trade secrets or proprietary or confidential information, which actions must be brought in either the Superior Court of the State of California in Santa Clara County or the United States District Court for the Northern District of California, San Jose Branch, as permitted by law, which together shall have exclusive jurisdiction over such disputes arising out of this Agreement.
THE PARTIES UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO OR ARISING OUT OF THIS AGREEMENT. Customer consents to the personal jurisdiction of the above courts. The prevailing party shall be entitled to recover from the losing party its attorneys’ fees and costs incurred in any action or proceeding brought to enforce any right arising out of this Agreement.