| 1. General Terms |
| This is a legal agreement and you represent that you have authority to make these commitments on behalf of your organization | 1.1 | Agreement:
This Agreement is a binding legal agreement between you and the applicable SpalonSoft Entity indicated in Section 14.4 below (“SpalonSoft”, “we”, “us” or “our”). If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity and its Affiliates to this Agreement, and all references to “you” and “your” in this Agreement are referring to that entity. You and SpalonSoft are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”. |
| Our Privacy Policy is also part of this Agreement. | Our Privacy Policy explains how we collect and use information that’s submitted to the Services. By using the Services, you are indicating that you’ve read the Privacy Policy and agree to its terms. |
| This Agreement covers Web Apps that allow you to access our software. | This Agreement applies to any use of the Services, whether in connection with a paid subscription or a free trial. |
| As we update our products and services, we may update this agreement. If those updates are significant, we’ll notify you. You’ll always be able to access the current agreement online. | 1.2 | Changes to the Agreement.
We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to https://www.SpalonSoft.com/terms-of-service (or such other URL as specified by SpalonSoft), as may be updated by SpalonSoft from time to time, and we agree the changes will not be retroactive. If we make any material changes to the Agreement, we’ll also notify you within the Software Service or by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services, and you can terminate your account by emailing support@SpalonSoft.com. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement. The legend at the top of the Agreement indicates when it was last changed. |
| Additional terms apply to certain products that we provide. | 1.3 | Supplemental Terms.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to the service with which it applies. |
| 2. Services |
| | 2.1 | Software Services |
| The Service Level Agreement describes our uptime commitments for the software. | 2.1.1 | Access and Service Levels.
SpalonSoft will make the Services to which you have subscribed available to you, subject to the terms and conditions of this Agreement. During the Subscription Term (defined below), the Software Services will meet the service levels specified as below:
We will make the Software Service available to you on a twenty-four hour, seven days a week (24×7) basis at a rate of 99% (“Uptime Requirement”).
The Uptime Requirement will commence on the date you first access the Software Service with a paid subscription (“Commencement Date”). |
| | Uptime Measurement Method:
The Uptime Requirement will be measured over each consecutive twelve (12) month period ending on the anniversary of the Commencement Date (each, a “Measurement Period”). The Uptime Metric percentage will be calculated based on a fraction as follows: Total – Nonexcluded – Excluded
——————————————
Total – Excluded
Where:
Total means the total number of minutes in the Measurement Period
Nonexcluded means downtime during Measurement Period that’s not excluded
Excluded means downtime or performance issues caused by any of the following: -Scheduled maintenance for which we give you at least forty eight (24) hours’ prior notice
-Force majeure event (as described in the Agreement)
-Overall Internet congestion, slowdown, or unavailability
-Suspension or termination of Software Service by SpalonSoft pursuant to the Agreement
-Your equipment or third party telecommunications, computer hardware, software, or network infrastructure not within the sole control of SpalonSoft |
| We may temporarily suspend your access for things like scheduled maintenance, or if a natural disaster occurs. We may also change or discontinue particular features or functions of our Services at any time. | 2.1.2 | Changes to Services.
Notwithstanding Section 2.1.1, in addition to our rights set forth in Section 8.4, we reserve the right to suspend any Services
(a) in connection with a Force Majeure event (as described in Section 14.9),
(b) if we believe any malicious software is being used in connection with your account, or
(c) during planned downtime as provided in the SLA.
In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time. If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services. |
| We aren’t responsible for any third party products that are integrated with or used in connection with the Services. | 2.2 | Third Party Offerings:
Although the Services may allow you to access or use Third Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder. The availability of any Third Party Offerings through the Services does not imply SpalonSoft’s endorsement of or affiliation with the provider. SpalonSoft does not control Third Party Offerings and will have no liability to you or Affiliates in connection with any Third Party Offerings. SpalonSoft has no obligation to monitor or maintain Third Party Offerings, and may disable or restrict access to any Third Party Offerings at any time. By using or enabling any Third Party Offering, you are expressly permitting SpalonSoft to disclose Your Data or other information to the extent necessary to utilize the Third Party Offering.
YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY OFFERINGS). |
| Your base subscription fees include our standard support services. | 2.3 | Support Services. As part of the Services you will have access to SpalonSoft’s standard support services described as below and may be updated by SpalonSoft from time to time.
Support Time Zone: Indian Standard Time (GMT +5:30)
Support Hours Except Sunday and Public/Regional Holidays:
Monday – Saturday: 9:00AM to 9:00PM |
| We may give you access to trial or beta Services for a time. We are not responsible for the results of using those Services. | 2.4 | Free, Trial and Beta Services. SpalonSoft may in its sole discretion offer free, trial or beta Services from time to time at no charge. Notwithstanding anything to the contrary herein:
(a) any free, trial or beta Services are provided “AS IS” with no warranties of any kind; and
(b) SpalonSoft may discontinue any free, trial or beta Services or your ability to use such Services at any time, with or without notice and without any further obligations to you. Without limiting the generality of the foregoing, free Services that have not been accessed or used for 12 consecutive months may be terminated by us. SpalonSoft will have no liability for any harm or damages suffered by you or any third party in connection with any free, trial or beta Services. |
| Additional terms apply for payment processing services. | 2.5 | Payment Processing:
SpalonSoft offers the ability to process payments through the Services (“Payment Processing Services”). Payment Processing Services are provided by our third party payment processing partners as Third Party Offerings and any procurement by you or your Affiliates will be subject to a separate merchant agreement which will be solely between you (or your Affiliate) and the third party processor. If you use Payment Processing Services you agree that you and your Affiliates will comply with the terms and conditions of any applicable merchant agreements and all applicable card network rules, policies, laws and regulations, at all times while using such Payment Processing Services. |
| 3. Your Responsibilities |
| You are responsible for making sure that your Affiliates and End Users comply with the terms of this agreement and applicable laws. | 3.1 | Liability for Affiliates and End Users:
You are responsible for all activity occurring under or relating to your account, including, but not limited to, your staff, employees, consultants, advisors, independent contractors, and End Users. You will ensure that your Affiliates and End Users comply with relevant provisions of this Agreement, including any Supplemental Terms and acceptable use policies provided or made available by SpalonSoft, and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use, as appropriate, by Affiliates and/or End Users, and any act or omission of an Affiliate or End User that does not comply with this Agreement will be deemed a breach of this Agreement by you. You are also responsible for ensuring that you have the appropriate rights to interact and/or contact End Users through the Services, as applicable, in accordance with applicable laws and regulations. |
| You are responsible for providing accurate data and collecting and protecting that data as required by law. You are responsible for the things that allow you to access our Services. | 3.2 | Data; Unauthorized Access; Maintaining Networks:
You will:
(a) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data;
(b) prevent unauthorized access to, or use of, the Services, and notify SpalonSoft promptly of any unauthorized access or use; and
(c) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services. |
| You agree that you and anyone you’re responsible for in this Agreement won’t violate the Agreement or engage in any of the prohibited conduct. | 3.3 | Restrictions on Use:
You and your Affiliates and End Users will not:
(i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights;
(ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein;
(iii) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement;
(iv) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs;
(v) restrict or inhibit any other person or entity from using the Services;
(vi) remove any copyright, trademark or other proprietary rights notice from the Services;
(vii) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service;
(viii) systematically download and store Services content; or
(ix) use the Services to send unsolicited electronic messages (aka spamming); or
(x) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services.
Notwithstanding subsection (x) above, and subject to compliance with any instructions posted in the robots.txt file located in the root directory of any Website, SpalonSoft grants to the operators of public search engines permission to use spiders to copy materials from the Websites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. SpalonSoft reserves the right to revoke these permissions at any time and without notice. |
| You are liable if any Cardholder Data is mishandled under your account. | 3.4 | Cardholder Data:
You are solely responsible for any liability resulting from your or any Affiliate’s handling of Cardholder Data. You agree that you and Affiliates will comply with PCI DSS anytime the Services are used to process credit cards. |
| You will keep all user names and passwords confidential. | 3.5 | User Names and Passwords:
SpalonSoft may reject or require that you change any user name or password under your account. User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of SpalonSoft. You, and not SpalonSoft, are responsible for any use or misuse of user names or passwords associated with your account. |
| You will obtain necessary consent from End Users before messaging them using the Services. | 3.6 | Consent:
You are responsible for ensuring you have obtained the requisite level of consent necessary from End Users when utilizing the Services, including, but not limited to, the automated marketing products. |
| 4. Fees and Payment |
| Unless you have provided “Purchase Order”, the current Subscription Fees can be found on our proposal sent to you. | 4.1 | Software Services Fees:
Unless otherwise stated on “Purchase Order” provided by you, fees for the Software Services (“Subscription Fees”) are set forth on the Proposal Provided to you. |
| Subscription Fees will be updated during any Renewal Term | 4.2 | Change in Subscription Fees:
Unless otherwise specified in an Proposal Form, the Subscription Fees during a Renewal Term (defined below) will be updated to the pricing set forth on the applicable WebApp when each Renewal Term begins. If You have an Proposal Letter, SpalonSoft may increase any fees specified in an Proposal , provided the increase will not become effective until the subsequent Renewal Term. For those Services not purchased, SpalonSoft may increase the fees at any time, with or without notice to you. SpalonSoft may also convert any free, trial or beta Service into a Service subject to a Subscription Fee upon notice to you, and your rights to such Service will be suspended if you do not pay the Subscription Fee. |
| You agree to pay the fees required for the Services you are getting through this Agreement and give us permission to process those payments. | 4.3 | Payment Terms:
You agree to pay the Subscription Fees and any other applicable fees stated on an Proposal or otherwise specified in this Agreement. YOU ARE RESPONSIBLE FOR ALL SUBSCRIPTION FEES FOR THE ENTIRE SUBSCRIPTION TERM. All payment obligations under this Agreement are non-cancellable and all fees paid are non-refundable. Unless otherwise stated on an Order Form, fees must be paid in advance of each billing period. You will provide SpalonSoft with valid and updated credit card information or another form of payment acceptable to SpalonSoft. If you provide credit card information, you represent that you are authorized to use the card and you authorize SpalonSoft to charge the card for all payments hereunder. By submitting payment information, you authorize SpalonSoft to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by SpalonSoft for purposes of acknowledging or completing any payment. |
| You agree that there will be additional charges if your payment is late and we can suspend your account if payments are not made. | 4.4 | Overdue Charges:
Any amounts not received by the applicable due date may accrue late interest at the lesser of either (a) 1.5% of the outstanding balance per month, or (b) the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by SpalonSoft within thirty (30) days after the applicable due date will be deemed a material default under this Agreement, and SpalonSoft will be entitled to either suspend the Services or terminate the Agreement in accordance with Section 8.2. |
| You will let us know within 30 days if there has been a payment error. | 4.5 | Payment Errors:
If you believe a payment has been processed in error, you must provide written notice to SpalonSoft within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute (“Payment Error Notice”). If the Payment Error Notice is not received by SpalonSoft within such thirty (30) day period, the payment will be deemed final. |
| Fees for the Services do not include taxes – you are responsible for paying those. | 4.6 | Taxes:
Subscription Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If SpalonSoft is legally required to pay or collect any Taxes on your behalf, SpalonSoft will invoice you and you will pay the invoiced amount. You acknowledge and agree that we may make certain reports to tax authorities (e.g., 1099 forms) regarding transactions that we process and merchants to which we provide Payment Processing Services are provided. For clarity, SpalonSoft will be solely responsible for taxes assessed on SpalonSoft based on its income. |
| 5. Intellectual Property Rights |
| SpalonSoft retains all right to our own Intellectual Property. | 5.1 | SpalonSoft Intellectual Property:
SpalonSoft or its affiliates own all right, title and interest in and to the Services, the SpalonSoft Data and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, SpalonSoft and its affiliates reserve all rights, title and interest in and to the Services, the SpalonSoft Data and Aggregated Data, including, without limitation, all related intellectual property rights. As between you and SpalonSoft, all SpalonSoft Marks are owned by SpalonSoft or its affiliates. You agree not to display or use any SpalonSoft Marks in any manner without SpalonSoft’s express prior written permission. Any trademarks, service marks and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks. |
| You have a limited license to use the Services as outlined in this Agreement. You may not do anything expressly prohibited in this section. | 5.2 | License Grant to You:
Subject to the terms and conditions of this Agreement, SpalonSoft hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to use the Services set forth in an Order Form, during the Subscription Term and solely for your internal business purposes.
You will not:
(a) modify, copy or create any derivative works based on the Services;
(b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and End Users as permitted herein;
(c) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by SpalonSoft in the provision of the Services;
(d) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services;
(e) copy any features, functions, integrations, interfaces or graphics of the Services; or
(f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement. |
| You grant us a license to use your feedback, trademarks and logos in connection with providing the Services and for marketing your business and SpalonSoft. | 5.3 | License Grant to SpalonSoft:
You hereby grant to SpalonSoft and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to
(a) modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or End Users relating to the Services or SpalonSoft’s or its affiliates’ business(es); and
(b) to use your business name(s), trademarks, service marks, logos or any publicly available images (collectively, “Your Marks”) in connection with:
(x) providing the Services,
(y) for marketing and promotional purposes in connection with SpalonSoft’s business, and
(z) for Marketing Services. SpalonSoft agrees that any use by SpalonSoft of any of Your Marks will inure solely to the benefit and goodwill of your business.
Other than those rights specifically granted to SpalonSoft or its affiliates herein, all right, title and interest in and to Your Marks are expressly reserved by you. |
| 6. Data Ownership and Use |
| You own all data you provide to us, but you also grant us a license to use it for certain purposes, for example, to improve our products or to provide you with complementary products of our partners. | 6.1 | Your Data:
As between you and SpalonSoft, you own all right, title and interest in Your Data. You hereby grant to SpalonSoft a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving and developing SpalonSoft’s or its affiliates’ products and services and/or complementary products and services of our partners. You represent and warrant to SpalonSoft that you have all rights necessary to grant the licenses in this Section 6.1, and that your provision and use of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party. |
| We own data that we collect through independent sources, like the SpalonSoft App. | 6.2 | SpalonSoft Data:
Notwithstanding Section 6.1, all right, title and interest in any data or information collected by SpalonSoft independently and without access to, reference to or use of any of Your Data, including, without limitation, any data or information SpalonSoft obtains about End Users through the SpalonSoft App (whether the same as Your Data or otherwise), will be solely owned by SpalonSoft (collectively, “SpalonSoft Data”). |
| SpalonSoft reserves all rights to Aggregated Data. | 6.3 | Aggregated Data:
You agree SpalonSoft owns all Aggregated Data. You also agree that nothing in this Agreement will prohibit SpalonSoft or its affiliates from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household. |
| Our Privacy Policy covers how we collect and use personal information. | 6.4 | Personal Information:
Our Privacy Policy governs how we collect and use personal information that is submitted through the Services. By accessing or using the Services, you agree to that you have read and accept our Privacy Policy. Without limitation, you acknowledge and agree that SpalonSoft may process Your Data for the purpose of providing the Services and related functions, such as billing and customer or End User support, as well as to send direct marketing communications to your representatives’ or End Users, data science and product or service improvement and reporting. You represent and warrant that You are authorized to process Your Data and make such data available to SpalonSoft for uses as set out in the Agreement and Privacy Policy, including through appropriate notice, consent and by your referring individuals, such as End Users, to our Privacy Policy (notwithstanding SpalonSoft’s ability and right, to which You agree, to request consent, and provide notice and its Privacy Policy separately to individuals). |
| We will notify one another if either of us becomes aware that Your Data has been compromised. | 6.5 | Unauthorized Disclosure:
If either Party believes that there has been a disclosure of Your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure. |
| We are not responsible for resolving or intervening in any dispute over Your Data. | 6.6 | Data-Related Disputes:
You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees, Affiliates (former or current), or contractors of your business. You acknowledge and agree that SpalonSoft has no obligation whatsoever to resolve or intervene in such disputes. |
| 7. Confidential Information |
| You and SpalonSoft will protect each other’s Confidential Information and only use it to fulfil obligations stated in this Agreement. | 7.1 | A Party will not disclose or use any Confidential Information of the other Party except:
(a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement;
(b) with the other Party’s prior written permission; or
(c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that:
(a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party;
(b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party;
(c) was independently developed by a Party without breach of any obligation owed to the other Party; or
(d) was or is received from a third party without breach of any obligation owed to the other Party.
For clarity, nothing in this Section 7 will restrict SpalonSoft with respect to SpalonSoft Data or Aggregated Data. |
| 8. Term, Termination and Suspension |
| You agree to a 90-day Initial Term and a 30-day automatic renewal. | 8.1 | Term:
Unless otherwise specified in an Order Form, the initial term of this Agreement is ninety (90) days (“Initial Term”). The Initial Term begins on the Effective Date and, unless otherwise specified in an Order Form, automatically renews in successive and consecutive thirty (30) day periods (each a “Renewal Term” and collectively with the Initial Term, the “Subscription Term”) until this Agreement is properly terminated. Either Party may terminate this Agreement for any reason or no reason, by giving the other Party at least thirty (30) days’ notice before the end of the relevant Subscription Term. |
| We have the right to end the Agreement immediately if you breach it. | 8.2 | Termination for Cause:
SpalonSoft may terminate this Agreement and/or any subscription, effective immediately upon notice to you, if you or an Affiliate are in material breach of this Agreement. In the event of a termination pursuant to this Section 8.2, in addition to other amounts you may owe SpalonSoft, you must immediately pay any unpaid Subscription Fees associated with the remainder of the Subscription Term. In no event will any termination relieve you of your obligation to pay any fees payable to SpalonSoft for the period prior to the effective date of termination. |
| This describes what will occur and the rights that apply when the Agreement is terminated. | 8.3 | Rights on Termination or Expiration:
Upon termination or expiration of this Agreement
(a) all Proposal / Purchase Order will automatically terminate and be of no force or effect;
(b) you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and
(c) except as specified in the following paragraph, SpalonSoft will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law. For a period of no greater than thirty (30) days following a notice of termination, SpalonSoft will make Your Data (except Cardholder Data) available to you through SpalonSoft’s standard data export process. Upon request by you within thirty (30) days following the termination date of this Agreement, and provided that;
(a) you have paid SpalonSoft all amounts owed under this Agreement; and
(b) the Parties have an agreed upon a SOW (as defined in Section 2.7), SpalonSoft will make Your Data in its possession or control available to you through SpalonSoft’s data export service. After such thirty (30) day period, SpalonSoft will have no obligation to retain or provide Your Data, except as required by applicable law. If at any time during the Subscription Term you require SpalonSoft’s assistance in retrieving Your Data, additional fees may apply. The following will survive any expiration or termination of this Agreement: the Introduction and Sections 1, 2.3, 2.5, 3, 4 (other than Section 4.1), 5, 6, 7, 8.3, 8.4, 9.1, 9.3, 10, 11, 12, 13, 14 and 15. |
| We have the right to suspend or terminate the Services at any time if we detect harmful or illegal activity under your account. | 8.4 | Right to Terminate or Suspend Services.
We may suspend or terminate your access to and use of the Services (or any portion thereof) at any time without notice if we believe
(a) that any activity or use of Services in connection with your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to SpalonSoft or any third party,
(b) that we are required to do so by law, or
(c) where the Parties do not agree on the use of a sub-processor. |
| 9. Warranties & Disclaimer |
| You are responsible for keeping your account contacts and other account information up to date, and you must notify us if anything changes. | 9.1 | Accuracy of Your Account Information:
You agree to provide SpalonSoft with complete and accurate account information, including your legal company name, street address, e-mail address, bank account, and such other information as may be requested by SpalonSoft (collectively, “Account Information”). You are responsible for the accuracy and timely updating of Account Information, and you agree to promptly notify SpalonSoft in writing if any Account Information changes. You agree that SpalonSoft has no responsibility or liability whatsoever for any loss or damages caused, either directly or indirectly, by inaccurate Account Information. |
| We promise that the software will perform as described in the Documentation. | 9.2 | Warranty of Functionality:
SpalonSoft warrants to you that during a Subscription Term:
(a) the subscribed Software Service will perform materially in accordance with the functionality described in the Documentation applicable to such Software Service; and
(b) such functionality will not be materially decreased.
Your sole and exclusive remedy for a breach of this warranty will be that SpalonSoft will use commercially reasonable efforts to modify the applicable Services to achieve the functionality described above. If SpalonSoft is unable to restore such functionality, you may terminate the Agreement by providing written notice to SpalonSoft, and you will be entitled to receive a pro-rata refund of any pre-paid fees. SpalonSoft will have no obligation with respect to a warranty claim under this Section 9.2 unless notified by you in writing no later than thirty (30) days after the first instance of any material functionality problem. This warranty will only apply if the applicable subscribed Services have been utilized in accordance with this Agreement and applicable laws. For clarity, this warranty will not apply to any free, trial or beta Services. |
| This is our disclaimer of legal liability for the quality, safety, or reliability of our Services. | 9.3 | DISCLAIMER:
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.2 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SPALONSOFT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. SPALONSOFT DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVIDED IN SECTION 9.2, THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH SPALONSOFT AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “SPALONSOFT PARTIES”). |
| 10. Indemnification |
| If we are sued by another party as a result of something you’ve done, you’ll cover the costs. | 10.1 | You agree to indemnify, defend, and hold harmless the SpalonSoft Parties from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys’ fees and costs) arising from or relating to:
(a) any actual or alleged breach by you, an Affiliate or End User of any provisions of this Agreement;
(b) any access to or use of the Services by you, an Affiliate or End User;
(c) any actual or alleged violation by you, an Affiliate or End User of the intellectual property, privacy or other rights of a third party; and
(d) any dispute between you and another party regarding ownership of or access to Your Data. |
| 11. Limitations and Exclusions of Liability |
| These are the limits of legal liability we may have to you. | 11.1 | SPALONSOFT EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY SPALONSOFT. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE SPALONSOFT PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT OR Rs. 5000.00 (INR), WHICHEVER IS GREATER. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH SPALONSOFT AND THE SPALONSOFT PARTIES. IN NO EVENT WILL ANY SPALONSOFT PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF SPALONSOFT, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. |
| 12. Export Controls |
| You promise to comply with any applicable export control laws and that you are not subject to any Indian trade restrictions or sanctions. | 12.1 | You will comply with all applicable export laws and restrictions and regulations of the Indian Department of Commerce and Industry, or other Indian or foreign agency or authority, and you will not use the Services to export, or allow any export or re-export in violation of any such restrictions, laws or regulations. You represent and warrant to SpalonSoft that you are not a prohibited party or located in, under the control of, or a national or resident of any restricted country, and that you will otherwise comply with all applicable export control laws. If you reside outside the India, then in addition to complying with the foregoing, you will comply with any relevant export control laws in your local jurisdiction. |
| 13. Intellectual Property Policy |
| Any information and data submitted to the Services must not violate the intellectual property rights of third parties and will adhere to our Intellectual Property Policy. | 13.1 | SpalonSoft respects the intellectual property rights of others and will investigate and respond to notices of alleged infringement that are properly submitted in accordance with our Intellectual Property Policy, and it may be updated by SpalonSoft from time to time. Any data or information submitted to the Services is subject to our Intellectual Property Policy. To be effective, your notice must be in writing and must include the following: – A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, of the copyrighted work claimed to have been infringed.
– An identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of the works claimed to have been infringed.
– Identification of the material on our Services that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material on our Services.
– Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address at which the complaining party may be contacted.
– A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
– A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. |
| 14. Miscellaneous |
| Indian law applies to this Agreement. | 14.1 | Governing Law:
This Agreement will be governed by and interpreted in accordance with the internal laws of the State of Ahmedabad, Gujarat, India without regard to conflicts of laws principles. The U.N. Convention on the International Sale of Goods will not apply. |
| In the unlikely event we end up in a legal dispute, you agree we will first attempt to resolve it through this informal process. | 14.2 | Mandatory Informal Dispute Resolution:
If you have any dispute with SpalonSoft arising out of or relating to this Agreement, you agree to notify SpalonSoft in writing with a brief, written description of the dispute and your contact information, and SpalonSoft will have thirty (30) days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below. |
| If we can’t resolve a dispute after following the process above, then we must resolve through arbitration and not in court. | 14.3 | Arbitration Agreement:
ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND SPALONSOFT, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, THAT ARE NOT RESOLVED PURSUANT TO SECTION 14.2 ABOVE WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND SPALONSOFT AND YOU EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. Any arbitration hearing will be held in Ahmedabad, Gujarat, India. The applicable governing law will be as set forth in Section 14.1 (provided that with respect to arbitrability issues, federal arbitration law will govern). The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. |
| This Agreement controls our relationship. | 14.5 | Entire Agreement:
This Agreement, together with any proposal and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and supersede any prior agreements between you and SpalonSoft with respect to the subject matter hereof. In the event of a conflict between an proposal and this Agreement, the proposal will control. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between SpalonSoft, on the one hand, and you or any Affiliate, on the other hand. |
| If any part of this Agreement can’t be enforced, the rest of the Agreement stands. | 14.6 | Waiver and Severability:
No waiver of any provision of this Agreement by SpalonSoft will be effective unless in writing and signed by SpalonSoft. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect. |
| We are entering this Agreement with you and you agree you won’t transfer it to anyone else. In an effort to make sure we meet our obligations to you, we can bring in other parties to fulfill the duties promised in this Agreement. | 14.7 | Assignment:
You may not assign, delegate or transfer this Agreement in whole or in part, without SpalonSoft’s prior written consent. SpalonSoft may assign, transfer or sublicense any or all of SpalonSoft’s rights or obligations under this Agreement without restriction. |
| You give us permission to contact you through the Services or via email for any Notices under this Agreement and agree to send any Notice to SpalonSoft at the address listed in this Section. | 14.8 | Notices:
Any notices provided by SpalonSoft under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account. You hereby consent to receive notice from SpalonSoft through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to SpalonSoft under this Agreement must be delivered via first class registered Indian mail, overnight courier, to SpalonSoft, Inc., Attn: SpalonSoft Customer Support, BH-409, Business Hub, Arved Transcuble Plaza,Ranip, Ahmedabad, Gujarat, India 382480 , with a copy to SpalonSoft at above address. |
| We are not liable for things that are not in our control, like natural disasters. | 14.9 | Force Majeure:
Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving SpalonSoft’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused. |
| You agree that we can communicate with you electronically. | 14.10 | Electronic Communications and Signatures:
You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law. |
| We are providing you Services for your business and this Agreement does not create a partnership or any other legal relationship. | 14.11 | Relationship of the Parties:
This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and SpalonSoft. |
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