Master Services Agreements
The Master Services Agreement sets forth the terms and conditions between Customer (as defined in the paragraph below) and Spekit Inc. (“Spekit” or “Company”) which govern Customer’s and its Affiliates’ use of the Services. Spekit and Customer may individually be referred to as a “party” and collectively “the parties.” The Master Services Agreement is effective as of the date that you sign up for any Services online or execute an order form that references this Master Services Agreement (the “Effective Date”).
By accepting this Master Services Agreement, either by clicking a box indicating your acceptance, executing an order form or other document that references this Master Services Agreement (each, an “Order Form” and collectively with the Master Services Agreement, the “Agreement”), by using (or making any payment for) the Services, or by otherwise indicating your acceptance of this Master Services Agreement, you: (1) agree to this Master Services Agreement on behalf of the customer indicated on the Order Form (if applicable) or the organization, business, or other legal entity for which you act (“Customer,” “you,” or “your”); and (2) represent and warrant that you have the authority to bind Customer to this Master Services Agreement. If you do not have such authority, or if you do not agree with this Master Services Agreement, you must not accept this Master Services Agreement and may not use the Services.
“Affiliate” means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.
“Attachment” means any documents, terms, conditions, or additional information added to this Agreement such as additional terms and conditions that apply to your access and use of certain features or functionality when you purchase, use, or enable such features or functionality. For example, Company may present you with an Attachment if you purchase or enable a beta feature or Spekit API.
“Authorized User” means an employee or contractor whom Customer has authorized to Use the Services.
“Customer Data” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Services or to Company in connection with Customer’s Use of the Services, but excluding, for clarity, Usage Data and any other information, data, data models, content or materials owned or controlled by Company and made available through or in connection with the Services.
“Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Company to Customer (including any revised versions thereof) relating to the Services, which may be updated from time to time upon notice to Customer.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Licensed Volume” means the limits, quantity, volume or other measurement or conditions of permitted Use for the applicable Service as set forth in the applicable Order Form, including any limits on the number of Authorized Users permitted to Use the Services based on Customer’s subscription tier.
“Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.
“Professional Services” means the professional and/or other implementation services, if any, to be provided by Company to Customer as referred to and set forth in the relevant Order Form and/or Statement of Work (“SOW”).
“Services” means the Spekit digital adoption and enablement platform, as more particularly described or identified in the applicable Order Form.
“Usage Data” means information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including information concerning Customer’s Use of the various features and functionality of the Services and analytics and statistical data derived therefrom).
“Use” means to use and/or access the Services in accordance with this Agreement and the Documentation.“
Spekit Acceptable Use Policy” means the policy available at https://spekit.com/spekit-acceptable-use-policy/.
GENERAL TERMS AND CONDITIONS
1. AGREEMENT STRUCTURE
Addenda will be incorporated into, and will form a part of, this Agreement and will be subject to the Master Services Agreement. The provisions of the various Addenda documents will, to the extent possible, be interpreted so as to supplement each other and avoid any conflict between them. In the event of a conflict between the terms and conditions of thee Master Services Agreement, an Attachment, SOW, or an Order Form, the conflict will be resolved by giving precedence in the following order: (i) the Order Form, (ii) the SOW, (iii) the Master Services Agreement, and then (iv) the Attachment, unless explicitly stated otherwise in the Attachment, Order Form, or SOW and in that case the conflicting terms and conditions in such Attachment, Order Form, or SOW will apply only to that Attachment, Order Form, or SOW.
2. SAAS SERVICES AND SUPPORT
2.1 Spekit Services. The terms and conditions of this Agreement apply to Customer’s access to and Use of the Services provided by Company during the Subscription Term (defined below) as described in the Order Form. Upon execution by both parties, each such Order Form will be incorporated into, and is fully governed by, this Agreement. Subject to the terms and conditions of this Agreement, Company (a) will use commercially reasonable efforts to provide the Services to Customer in accordance with the Service Level Agreement; and (b) hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 16) right to Use the Services during the Subscription Term, solely for Customer’s internal business purposes in accordance with, and subject to, the Licensed Volume.
2.2 Spekit API. Company may offer an application programming interface that provides additional ways to access and use the Services (the “Spekit API”). Spekit grants Customer a limited, non-exclusive, non-transferable, revocable, non-assignable right during the Subscription Term to use any Spekit APIs made available by or on behalf of Company to Customer as part of the Services for the sole purposes of accessing and using the Services for Customer’s own internal business purposes. Customer’s right to use the Spekit APIs is subject to Customer’s acceptance of Spekit’s API License Agreement, which can be found at https://spekit.com/api-license-agreement/. Company reserves the right at any time to modify or discontinue Customer’s access to the Spekit API (or any part of it) with or without notice. Any Service Level Agreements, including Spekit’s Service Level Agreement, do not apply to the Spekit API.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Usage and Licensing Terms. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software, Documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Subscription Term only in connection with the Services.
3.2 Export Restrictions. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and Documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3.3 Prohibited Use of Services. Customer agrees not to Use the Services in violation of any law, contract or intellectual property or other third party right. Customer further agrees not to: (i) Use the Services in any manner that could damage, disable, overburden or impair the Services; (ii) send unsolicited or unauthorized advertising, solicitations, promotional materials, spam, junk mail, chain letters and pyramid schemes, or harvest or collect email addresses or other contact information of other users from the Services for the purposes of sending commercial emails; (iii) use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Services or to extract data; (iv) introduce to the Services any virus, trojan worms, logic bombs or other harmful material; (v) circumvent measures employed to prevent or limit access to any area, content or feature of the Services; (vi) Use or attempt to Use another’s account, or grant any third party any right to access your account, without authorization from Company; (vii) engage in any harassing, intimidating, predatory or stalking conduct; (viii) develop any third-party applications that interact with the Services; (ix) Use the Services, including to store or transmit Customer Data, in a manner that violates the Spekit Acceptable Use Policy; or (x) “Frame” our Services or otherwise make it look like you have a relationship to us or that we have endorsed you for any purpose without the prior written permission of Company. Although Company has no obligation to monitor Customer’s Use of the Services, Company may do so and may prohibit any Use of the Services it believes may be (or a third party has alleged to be) in violation of the foregoing.
3.4 Responsibility for Systems. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise Use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.5 Authorized Users. Customer will not allow any Person other than Authorized Users to Use the Services. Customer may permit Authorized Users to Use the Services, provided that (i) the Use, including the number of Authorized Users, does not exceed the Licensed Volume; and (ii) Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement, the Spekit Acceptable Use Policy and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Services. Customer will, and will require all Authorized Users to, use all reasonable means to secure usernames and passwords, hardware and software used to access the Services in accordance with customary security protocols, and will promptly notify Company if Customer knows or reasonably suspects that any user name and/or password has been compromised.
From time to time Customer or its employees, contractors, or representatives may provide Company with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). Customer hereby grants Company a perpetual, irrevocable, royalty-free and fully-paid up license to at Company’s discretion and for any purpose, use, modify, disclose, reproduce, and incorporate into its products and services, license and sublicense or otherwise distribute, any Feedback without any obligation to Customer. Both parties agree that all Feedback is and will be deemed given entirely voluntarily.
5. CONFIDENTIALITY; PROPRIETARY RIGHTS
5.1 Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or disclose, duplicate, publish, release, transfer or otherwise make available to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
5.2 Confidentiality Obligations and Remedies. The obligations in Section 5.1 do not restrict any disclosure by either party pursuant to any applicable law, or by order of any court or government agency (provided that the party making such disclosure will give prompt notice to the other party of such order so that such party may seek a protective order or other appropriate remedy). In the event of a breach of this Section or other compromise of Proprietary Information of which a party is or should be aware (whether or not resulting from a breach), such party will immediately notify the other party in writing detailing all information known to such party about the compromise, the Proprietary Information affected, and the steps taken by such party to prevent the recurrence of such breach and to mitigate the risk to the other party. The parties agree that in the event of a breach or anticipated breach of Sections 5.1 or 5.2, the affected party will be entitled to seek injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief will be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
5.3 Customer Data. Customer owns and shall retain ownership of all right, title and interest in and to the Customer Data. No ownership rights in the Customer Data are transferred to Company by this Agreement. Customer hereby grants Company a worldwide, non-exclusive, irrevocable, royalty-free, fully-paid, sublicensable (to Company’s third-party service providers) license to host, store, transfer, display, reproduce, modify, and distribute Customer Data in connection with its provision of the Services to Customer.
5.4 Ownership by Company. The Services and Software, Documentation, Usage Data, website, the design, logos, graphics, icons, images, as well as the selection, assembly and arrangement thereof, algorithms and any and all Intellectual Property Rights pertaining thereto, including, without limitation, inventions, patents and patent applications, trademarks, trade names, logos, copyrightable materials, graphics, text, images, designs (including the “look and feel” of the Service and/or website and any part thereof), specifications, methods, procedures, information, know-how, data, technical data, interactive features, source and object code, files, interface, GUI and trade secrets, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), all deliverables created by Company and delivered to Customer, whether or not registered and/or capable of being registered, and all Intellectual Property Rights in and to any of the foregoing. (collectively, “Company IP”), are owned and/or licensed to Company, and are subject to copyright and other applicable rights under U.S. laws, foreign laws and international conventions.
5.5 Trademark Usage and Ownership. All logos and other proprietary identifiers used by Company in connection with the website, Services, and other Company products and services, (“Spekit Trademarks”) are all trademarks and/or trade names of Company, whether or not registered. All other trademarks, service marks, trade names and logos, which may appear on or with respect to the Site and/or Services belong to their respective owners (“Third-Party Marks”). No right, license, or interest to Spekit Trademarks and/or to the Third-Party Marks is granted hereunder, and Customer agrees that no such right, license, or interest shall be asserted by Customer with respect to Spekit Trademarks or the Third-Party Marks and Customer will not use any of these marks, unless expressly permitted to do so.
5.6 Usage Data. Company may (i) collect, analyze and otherwise process Usage Data internally for its business purposes, including for the purposes of security and analytics, to improve and enhance the Services, or for other development, diagnostic and corrective purposes in connection with the Services or other Company products or services, and (ii) disclose Usage Data only in an aggregated and/or de-identified form in connection with its business in a manner that does not identify Customer or any of its users.
5.7 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Company reserves and, as between the parties will solely own, the Company IP and all rights, title and interest in and to the Company IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
6. PRIVACY AND DATA PROTECTION
6.1 Security. Company will maintain appropriate administrative, physical, and technical safeguards for protection, confidentiality and integrity of Customer Data. For more information about Spekit’s security measures, please contact email@example.com.
6.2 Data Processing Agreement. This Agreement incorporates Spekit’s Data Processing Agreement (“DPA”) when Data Protection Law applies to Customer’s Use of the Services to process Customer Personal Data.
7. PAYMENT OF FEES
7.1 Fees. In consideration for Company’s provision of the Services, Customer will pay Company the then applicable fees described in the Order Form or SOW in accordance with the terms therein (the “Fees”). If Customer’s Use of the Services exceeds the Licensed Volume set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. The initial term for Customer’s access to and use of the Service shall be set forth in the Order Form (the “Initial Term”). The Initial Term shall automatically renew for consecutive twelve (12) month periods (each, a “Renewal Term” and together with the Initial Term, the “Subscription Term”) unless otherwise specified in the respective Order Form. Company will provide notice to Customer (which may be sent by email) of any price or Fee increases ahead of any Renewal Term. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Company’s billing department as specified in any Order Form.
7.2 Invoicing and Payment. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Company reserves the right to suspend provision of the Services if Customer fails to timely pay any undisputed amounts due to Company under this Agreement. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with the Services other than U.S. taxes based on the Company’s net income. Neither party will have any right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other party under this Agreement for any reason.
8. TERM AND TERMINATION
8.1 Term. Subject to earlier termination as provided below, this Agreement commences as of the Effective Date and shall continue until thirty (30) days after expiration or termination of the Subscription Term.
8.2 Termination. This Agreement and any Order Form may be terminated by either party upon notice if the other party (i) breaches any material term of this Agreement and fails to remedy the breach within thirty (30) days after being given notice thereof, or (ii) ceases to function as a going concern or to conduct operations in the normal course of business, or (iii) has a petition filed by or against it under any bankruptcy or insolvency laws which petition has not been dismissed or set aside within sixty (60) days of filing. Termination is not an exclusive remedy for breach of this Agreement by either party. Unless otherwise specified in this Agreement, all other remedies will be available to the non-breaching party whether or not the non-breaching party terminates this Agreement for breach by the other party.
8.3 Post-Termination Obligations. Upon any termination of this Agreement, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days. After such period, Company may delete all Customer Data and Company will have no obligation to Customer to continue storing such Customer Data. If Customer terminates this Agreement for Company’s uncured material breach, Company will issue to Customer a pro rata refund of Fees for Services not provided. If this Agreement is terminated for any other reason, within ten (10) days after such termination, Customer will pay Company all remaining Fees owed through the end of the Subscription Term under any terminated Order Forms. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
9. BETA SERVICES
9.1 Access. This Section describes the additional terms and conditions under which Customer may access and use certain features, technologies, and services made available to Customer by Company that are not yet generally available, including, but not limited to, any products, services, or features designated or labeled as “alpha,” “beta,” “early access,” “preview,” “pilot,” or similar designation (each, a “Beta Service”).
9.2 Beta Terms. Customer’s right to use any Beta Service is subject to Customer’s acceptance of Spekit’s Beta Terms, which can be found at https://spekit.com/beta-terms/. Company may add or modify the Beta Terms at any time, including lowering or raising any usage limits, related to access to or use of any Beta Service at any time. Any Service Level Agreements, including Spekit’s Service Level Agreement, do not apply to any Beta Services.
9.3 Beta Feedback. Customer may provide Company with feedback relating to the Beta Services. Company will own and may use and evaluate all feedback for its own purposes.
9.4 Termination and Suspension of Beta. Company may suspend or terminate Customer’s access to or use of any Beta Service at any time. Customer’s access to and use of each Beta Service will automatically terminate upon the release of a generally available version of the applicable Beta Service or upon notice of termination by Company.
9.5 Disclaimer. Despite anything to the contrary in this Agreement, Customer acknowledges that (a) Customer has the sole discretion whether to use any Beta Services, (b) Beta Services may not be supported and may be changed at any time, including in a manner that reduces functionality, (c) Beta Services may not be available or reliable, (d) Beta Services may not be subject to the same security or audits as the Services, and (e) Company provides Beta Services “as-is” and will have no liability arising out of or in connection with Beta Services. WITHOUT LIMITING ANY DISCLAIMERS IN THE AGREEMENT, BETA SERVICES ARE NOT READY FOR GENERAL COMMERCIAL RELEASE, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, COMPANY PROVIDES BETA SERVICES “AS IS.” COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING BETA SERVICES, INCLUDING ANY WARRANTY THAT THE BETA SERVICES WILL BECOME GENERALLY AVAILABLE. EXCEPT TO THE EXTENT PROHIBITED BY LAW, COMPANY DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
10. WARRANTY AND DISCLAIMER
10.1 General. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
10.2 Spekit Limited Warranty. Company may, at its discretion, modify or update the Services from time to time. Company will not materially decrease the overall functionality of the Service during the Subscription Term.
10.3 Warranty Remedies. Customer will notify Company of any non-conformance of the Services under a warranty above within thirty (30) days. Provided that Customer notifies Company within such time, Company will use commercially reasonable efforts to correct the non-conformance at no additional charge. If Company is unable to correct such non-conforming Services as warranted within a reasonable time, Customer will be entitled to terminate the applicable Order Form and receive a prorated refund of any prepaid, unused Fees covering the remainder of the Subscription Term. The foregoing remedy is Customer’s sole remedy in case of a breach of the limited warranties above.
10.4 Disclaimer. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND ANY PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
11.1 Indemnification by Company. Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
11.2 Indemnification by Customer. Customer shall indemnify, defend and hold harmless Company and its Affiliates and their respective directors, officers, shareholders, employees, agents, successors and assigns from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising from any claim, suit or proceeding brought by a third party (“Claims”) due to, arising out of, or relating in any way to (i) any Customer Data, including without limitation, (A) any Claim that the Customer Data infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Data violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) Use of the Services by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 3, and in each case, will indemnify and hold harmless Company against any damages and costs awarded against Company or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
11.3 Procedure. Each party’s indemnity obligations are subject to the following: (i) the indemnified party shall promptly provide written notice to the indemnifying party of the applicable claim, provided that a failure to promptly notify will not relieve the indemnifying party of its indemnification obligations, except to the extent it has been prejudiced by such failure); (ii) the indemnified party shall give the indemnifying party, in the indemnifying party’s sole discretion, the opportunity to assume sole control of the defense and all related settlement negotiations with respect to the claim (i.e., the indemnifying party shall not be responsible for any settlement entered into by the indemnified party that it does not approve in writing), provided that the indemnifying party may not settle or defend any claim unless it unconditionally releases the indemnified party of all liability; and (iii) the indemnified party will reasonably cooperate to the extent necessary for the defense of such claim, at the indemnifying party’s expense.
12. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOST DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF EITHER PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, AMOUNTS PAID BY CUSTOMER TO COMPANY IN THE 12-MONTH PERIOD PRECEDING THE INITIAL CLAIM GIVING RISE TO LIABILITY HEREUNDER.
13. THIRD PARTY CONTENT
Company may provide third-party content on the Services and may provide links to web pages and content of third parties (collectively the “Third-Party Content”). Company does not control, endorse or adopt any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy or completeness. Customer acknowledges and agrees that Company is not responsible or liable in any manner for any Third-Party Content and undertakes no responsibility to update or review any Third-Party Content. Customer’s use of any Third-Party Content is at Customer’s own risk. The inclusion of Third-Party Content on the Services does not imply affiliation, endorsement or adoption by Company of any Third-Party Content or any information contained therein. Customer’s business dealings or correspondence with, or participation in the promotional offers of, any third party responsible for Third-Party Content, and any terms, conditions, warranties or representations associated with such dealings or promotional offers, are solely between Customer and such third party. When Customer leaves the Services, Customer should be aware that Company’s terms and policies no longer govern. Customer should review the applicable terms and policies, including privacy and data gathering practices, of any site to which Customer navigates from the Services.
14. PROFESSIONAL SERVICES
Customer may request Company to provide certain Professional Services that are ancillary to the Service. In such an event, the parties will enter into a SOW that refers to and is subject to this Agreement and sets forth the scope and description of the Professional Services, deliverables, parties’ responsibilities, completion dates, fees and payment terms, and any other relevant information.
15. DISPUTE RESOLUTION
Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”), shall be submitted to the other party, by delivery of written notice (each, a “Dispute Notice”). The parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. If the parties cannot resolve any Dispute within thirty (30) days after delivery of the applicable Dispute Notice, unless otherwise mutually agreed to by the parties, such Dispute shall be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The Tribunal shall consist of three (3) arbitrators and the place of arbitration shall be Denver, Colorado. Each party shall bear its own attorney fees and costs, and each party shall bear one half the cost of the arbitration hearing fees and the cost of the arbitrator, unless the arbitrators find the claims or defenses to have been frivolous or harassing, in which case fees and costs may be assessed in the arbitrators’ discretion. Notwithstanding the foregoing, Spekit may bring a claim in the federal or state courts located in Denver, Colorado with respect to infringement of its Intellectual Property Rights including in order to seek an injunction or other equitable remedy, or prevent such infringement.
16.1 Invalidity and Severability. If any provision of this Agreement is found to be unenforceable or invalid, 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.
16.2 Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Notwithstanding the foregoing, either party may assign this Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
16.3 Headings. Headings to paragraphs or sections in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.
16.4 Independent Contractors. The parties agree that each is an independent contractor and neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.
16.5 Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
16.6 Governing Law; Venue. This Agreement shall be governed by the laws of the State of Colorado without regard to its conflict of laws provisions. The sole venue for all disputes relating to this Agreement shall be in Denver, Colorado, USA.
16.7 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
16.8 Amendments. We may amend this Agreement, including any Attachments, from time to time, in which case the new Agreement will supersede prior versions. Your continued use of the Services following the effective date of any such amendment may be relied upon by Company as your consent to any such amendment.
16.9 Waiver. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
This Agreement including any SOWs and Order Forms is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.