Spec Online Subscription Agreement
“Spec” means SpecTrust, Inc., a Delaware corporation, d/b/a Spec.
BY CLICKING THE “ACCEPT” BUTTON OR USING THE SPECTRUST, INC. (“SPECTRUST”) SERVICES IDENTIFIED IN THE ORDER FORMS THAT REFERENCE THIS SPECTRUST ONLINE SUBSCRIPTION AGREEMENT (“AGREEMENT”), THE INDIVIDUAL OR ENTITY OBTAINING THE RIGHT TO ACCESS SUCH SERVICES (“CUSTOMER”) IS AGREEING TO BE BOUND BY AND BECOMES A PARTY TO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CUSTOMER MUST NOT, AND MAY NOT, ACCESS OR USE THE SPECTRUST SERVICES.
- Definitions. In addition to the terms defined in the body of the Agreement, the following terms have the following meanings:
“Acceptable Use Policy” means the SpecTrust policy for appropriate use of the Service. The most recent copy of such Acceptable Use Policy is available upon request.
“Account User” means an individual who is authorized by Customer to use the Service and to whom Customer (or SpecTrust at Customer’s request) has supplied a login ID and password to access and use the Service. Account Users may include Customer’s employees, consultants, contractors and agents, but may not include any competitors of SpecTrust.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Agreement” means this Master Subscription Agreement, all exhibits, schedules and annexes attached hereto and incorporates all terms included in URLs referenced in this Agreement.
“Applicable Laws” means laws, statutes, regulations or directives created by common or statutory laws in any jurisdiction whatsoever that are applicable to the provision or use of the Service.
“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer Data” means electronic data and content submitted by or for Customer, or processed by, the Service, and includes Notifications.
“Customer Digital Asset” shall mean mobile applications, web domains, devices, software applications and/or communication channels owned by Customer and made available to End Users.
“Documentation” means the SpecTrust online documentation for the Service, as updated from time to time, accessible via SpecTrust’s website.
“End User” shall mean any end user of one or more of Customer Digital Asset(s).
“Malicious Code” means code, files, scripts, agents or programs deliberately intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Notification” shall mean any communication with End Users made by or for Customer via the Service in connection with a Customer Digital Asset.
“Order Form” means an online or physical ordering document specifying the Service to be provided hereunder that is entered into between Customer and SpecTrust, including any addenda, exhibits and schedules attached thereto and additional terms relevant to a specific Service included therein.
“Prohibited Data” means: (a) individual medical or health information (including without limitation, protected health information under HIPAA) or (b) “special categories of personal data” under the EU General Data Protection Regulation or similar information under other comparable laws or regulations.
“Service” means, to the extent specified in the applicable Order Form(s), (a) the SpecTrust proprietary platform technology, including the SpecTrust Tools, and programs, features, functions, developer tools, report formats and any updates or upgrades of any of the foregoing made generally available by SpecTrust (“SpecTrust Service”).
“SpecTrust Tools” means any application programming interface, software development kit, or other software component provided by SpecTrust to Customer for use with the Service.
“Subscription Term” means the subscription period for the Service specified in an applicable Order Form.
“Third Party Applications” means third party Web-based or offline software applications, operating systems (such as iOS or Android), platforms, networks, certificates or devices that interoperate with the Service that is provided by the Customer or a third party.
- Service.
2.1 Ordering. The specifics of Customer’s order will be set forth on one or more Order Forms that reference this Agreement. Customer’s execution of an Order Form and SpecTrust’s acceptance of such Order Form constitute a binding commitment to purchase the items described on such Order Form under the terms and conditions of this Agreement. All Order Forms accepted by SpecTrust that reference this Agreement are incorporated herein. Each Account User authorized by Customer shall be provided a separate login to the Service. An Account User’s login and password may not be shared with any other individual. Customer is responsible for the confidentiality and use of Account User logins and passwords.
2.2 Affiliate Orders. Customer’s Affiliates may procure their subscriptions to the Service directly from SpecTrust under the terms and conditions of this Agreement by executing Order Forms hereunder. This Agreement shall apply to each such Affiliate, and such Affiliate shall be deemed “Customer” under this Agreement.
2.3 Provision of Service. During the Subscription Term, SpecTrust shall (a) make the Service available to Customer pursuant to this Agreement, the Documentation and the applicable Order Form, and (b) provide standard technical support for the Service to Customer at no additional charge, and/or upgraded support if purchased on an Order Form. Customer’s access to and use of the Service is conditioned on connecting to the Service using the applicable SpecTrust Tools, and connecting to the Service using any other method, code or libraries is prohibited.
2.4 Data Security. During the Subscription Term, SpecTrust shall maintain commercially reasonable safeguards for protection of the security, confidentiality and integrity of Customer Data taking into account the state of the art, the cost of implementation and the nature, scope, content and purposes of processing as well as the type of data included in Customer Data.
3. Use of Service.
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form, access to the Service is purchased as a subscription to access and use during the Subscription Term. Unless otherwise provided in the applicable Order Form, delivery of the Service occurs upon SpecTrust’s delivery of credentials or other information sufficient to access or use the Service.
3.2 Customer Responsibilities. Customer is responsible for access to and use of the Service by Customer and Account Users, and shall (a) access and use the Service only in accordance with this Agreement, the Documentation, the Acceptable Use Policy and Applicable Laws, (b) promptly notify SpecTrust of any breach of security or unauthorized access or use of Customer’s account on the Service or any loss or unauthorized disclosure of any Account User’s login and/or password to the Service, (c) comply with reasonable requests made by SpecTrust regarding configuration of Customer’s account to optimize performance of the Service generally, (d) have sole responsibility for the accuracy and legality of processing and use of Customer Data (including, without limitation, any Customer Data sent to, provided by or accessed by a Third Party Application that Customer links to the Service), (e) maintain a legally adequate privacy policy for each Customer Digital Asset that connects to the Service, and (f) provide notice, respond to individual rights requests and obtain all legally required rights, releases and consents to allow Customer Data to be collected, processed, stored, used, transmitted and disclosed in the manner contemplated by this Agreement and the Documentation. Customer’s use of the Service alone does not guarantee conformity with any compliance standard, and Customer is responsible for deploying and configuring the Service in a manner that meets applicable compliance standards. If the Service is not explicitly labeled as compliant with a compliance standard (e.g. “PCI compliant”) then it is not compliant with that standard, and Customer assumes all liability associated with using the Service to transmit, process, or store data in a manner that contravenes a compliance standard. When using SpecTrust’s Secure Socket Layer (“SSL”) network, Customer will configure and maintain its SpecTrust metadata to use encryption algorithms, key lengths, origin certificate verification, and other applicable metadata. Failure to do so may expose information in the SSL session to a third party. In using the Service, Customer may transmit information only over the SpecTrust SSL network and via no other network.
3.3 Usage Restrictions. Customer shall not (a) make the Service available to, or use the Service for the benefit of, anyone other than Customer or Account Users, (b) sell, resell, license, sublicense, distribute, rent or lease the Service, include the Service in a service bureau or outsourcing offering, or make the Service available to any third party, (c) use the Service in a manner that violates any Applicable Law or any applicable Third Party Application terms, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, (f) attempt to gain unauthorized access to the Service or its related systems or networks, (g) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, or bypass or breach any security device or protection included in the Service, (h) copy the Service or any part, feature, function or user interface thereof, (i) access the Service in order to build a competitive product or service or for other competitive purposes, (j) use the Service to make a decision regarding an individual based solely on automated processing which produces legal effects concerning such individual or similarly significantly affects such individual, including, without limitation, establishing an individual’s eligibility for credit, employment or insurance, or (k) use the Service to submit, collect, transmit, process or store any Prohibited Data. SpecTrust shall have the right (but not the obligation) in its reasonable discretion to refuse to transmit or remove any Customer Data that, in SpecTrust’s reasonable judgment, violates any of the terms of this Agreement, Acceptable Use Policy or any Applicable Law. Notwithstanding the foregoing, SpecTrust has no obligation to review Customer Data or any Notification content. If Customer’s or any Account User’s use of the Service that in SpecTrust’s reasonable judgment imminently threatens the security, stability, integrity or availability of the Service or otherwise harms other customers or third parties or violates Acceptable Use Policy or Applicable Law, SpecTrust may immediately suspend the Account User and/or the Service; provided, that, SpecTrust will use commercially reasonable efforts under the circumstances to provide Customer with prior notice and opportunity to correct usage prior to any such suspension. SpecTrust will have no liability for any such suspension made in good faith.
3.4 Service Configuration. When SpecTrust configures Customer’s configurations, Customer shall provide all necessary configuration information to SpecTrust to enable the configurations in advance. Subject to additional parameters specified in Customer’s Agreement or applicable Documentation, configurations may take up to twenty-four (24) hours to become active. For certain on-demand services, Customer may be required to notify SpecTrust of the need to re-route traffic or otherwise activate Service functionality. Customer agrees to provide and appropriately update an escalation matrix that includes the names, email addresses, and phone numbers of at least three (3) individuals who are authorized and accountable for representing Customer in communicating technical requirements and giving approval for project schedules and milestones and whom SpecTrust may contact for configuration, support, or security purposes, including data breach incidents. Customer is solely responsible for (i) distributing and managing access control keys and user login credentials associated with the Service (ii) ensuring that Customer’s origin infrastructure has the capacity required to accommodate any additional load generated by the Service. As needed to provide the Service to Customer, SpecTrust reserves the right to make, or to require Customer to make, technical configuration changes, which may impact links, URLs, or embedded files deployed by Customer. In implementing such changes, SpecTrust will adhere to the terms of the relevant Documentation, and SpecTrust will provide Customer with reasonable advance notification of any such required changes unless doing so would pose a legal, regulatory, security, or technical risk. Customer shall be solely responsible for Service disruptions that result from Customer’s failure to comply with requested configuration changes or implement updates or upgrades to the Service or associated software. For any Service that includes access to emergency security configuration assistance, Customer pre-authorizes SpecTrust to make customizations and other changes designed to defend against security incidents or address Service-related issues. Customer acknowledges that the Service does not prevent or eliminate all attacks or security threats. SpecTrust may, without notice, make changes to the Service’s application layer controls at SpecTrust’s sole discretion. If necessary to apply application layer rule exceptions to Customer’s configuration to facilitate an update, Customer shall provide support as needed by SpecTrust in an expedient fashion so that SpecTrust can implement necessary changes. Customer authorizes SpecTrust to impose technical measures available in the Service in order to control or otherwise mitigate DDoS attacks. Measures taken to address DDoS attacks may result in degraded application and/or site performance. In the course of consuming or providing the Service, Customer or SpecTrust may report or identify events causing suspicion of an actual or anticipated application level or denial of service attack. Whether any such event constitutes an attack shall be determined solely by SpecTrust. Unless specified in applicable Order Form, SpecTrust does not provide any service level agreement for managed delivery services or managed integration services, warrant or guarantee that such services will detect or mitigate all possible changes adversely impacting end user experience, or make recommendations for potential performance improvement. Customer acknowledges that support does not prevent or eliminate all possible attacks or threats. For persistent attacks or security incidents outside the scope of the applicable security product, SpecTrust may declare security event management complete without successful mitigation, in which case other services may be required to continue attempts to mitigate the malicious activity.
3.5 Third Party Applications. The Service may enable Customer to link Third Party Applications with the Service. By linking a Third Party Application with the Service, Customer: (a) authorizes SpecTrust to access, receive and, in certain cases, store data from the Third Party Application via the Service (all such data accessed, received and/or stored being Customer Data) and (b) grants SpecTrust permission to allow the provider of that Third Party Application to access Customer Data via the Service, in each case solely as required for the interoperation of that Third Party Application with the Service. SpecTrust is not responsible for any usage, transmission, disclosure, loss, modification or deletion of Customer Data or any other content sent to, provided by or accessed by a Third Party Application that Customer links to the Service. Customer is solely responsible for obtaining and securing from the Third Party Application provider all rights and permissions necessary for Customer to link such Third Party Application to the Service, and SpecTrust shall have no liability in connection therewith. Customer’s access to and use of any Third Party Application (including the linking of the Third Party Application to the Service) is subject to such Third Party Application provider’s terms and conditions that govern the access and use of the Third Party Application, or any separate agreement or transaction that Customer enters into with the Third Party Application provider, and SpecTrust shall have no liability in connection therewith.
4. Fees and Payment.
4.1 Fees. Customer shall pay all fees specified in all applicable Order Forms. Except as otherwise specified herein or in an Order Form, (a) fees are based on the Service subscribed and the usage metrics specified in the applicable Order Form, (b) payment obligations are non-cancelable and fees paid are non-refundable, other than pursuant to Section 9.4 (Refund or Payment upon Termination), and (c) the purchased Service cannot be decreased during the relevant Subscription Term.
4.2 Invoicing and Payment. Unless an Order Form specifies otherwise, fees for the Service are (a) electronically invoiced up front upon execution of the Order Form, and (b) due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to SpecTrust and notifying SpecTrust of any changes to such information. Unless otherwise stated in the Order Form, all amounts payable shall be in the currency stated in the applicable Order Form.
4.3 Late Payments. Customer’s failure to pay any undisputed amounts due under this Agreement or any Order Form on a timely basis will be deemed material breach of this Agreement. If any amount owing by Customer under this Agreement or any Order Form is overdue, SpecTrust may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement or Order Form (including any minimum contract value amount specified in the applicable Order Form) so that all such fees become immediately due and payable, and/or suspend applicable Service until all overdue amounts are paid in full. SpecTrust shall provide at least 14 days’ prior notice that Customer’s account is overdue, in accordance with Section 10.1 (Manner of Giving Notice), before any suspension. Customer will continue to be charged Service fees during any period of suspension. SpecTrust shall not exercise such acceleration or suspension rights specified above if Customer is disputing the applicable charges reasonably and in good faith, and is working with SpecTrust to resolve the dispute. If SpecTrust takes action to collect overdue fees under this Agreement or any Order Form, Customer agrees to pay all reasonable costs and expenses incurred by SpecTrust for collecting such overdue fees, including but not limited to, collection fees, reasonable attorney fees and court costs.
4.4 Taxes. 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 whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If SpecTrust has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, SpecTrust will invoice Customer and Customer shall pay that amount unless Customer provides SpecTrust with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, SpecTrust is solely responsible for taxes assessable against it based on its income, property and employees.
5. Propriety Rights and Licenses; Customer Data.
5.1 Ownership of the Service. SpecTrust (and its licensors, where applicable) shall own all right, title and interest, including all inventions (whether patented or not), patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secrets, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world, in and to the Service and all modifications, extensions, customizations, scripts or other derivative works of the Service. SpecTrust owns all right, title and interest in the technical, performance, usage and operational data of its Service, which SpecTrust will use to analyze, improve, develop, support and operate the Service. No rights are granted to Customer hereunder other than as expressly set forth herein, and SpecTrust (and its licensors, where applicable) reserve all rights not expressly granted herein.
5.2 License to Use the SpecTrust Tools. The SpecTrust Tools constitute SpecTrust intellectual property that is licensed, not sold, to Customer. SpecTrust hereby grants Customer a nonexclusive, non-transferable, non-sublicensable, worldwide license to use SpecTrust Tools solely to access and use the Service. SpecTrust Tools may be subject to additional terms that accompany the SpecTrust Tool; and, by accessing and/or using any such SpecTrust Tool, Customer accepts the license terms. Customer shall not use Service, including without limitation SpecTrust Tools, to track end users across non-Customer owned sites.
5.3 Ownership of Data. As between Customer and SpecTrust, Customer exclusively owns all right, title and interest in and to all Customer Data and all Customer Digital Assets. Customer hereby grants to SpecTrust a non-exclusive, royalty-free, non-transferable (except pursuant to a permitted assignment under this Agreement), worldwide license during the applicable Subscription Term to receive, copy, modify, display, store, perform and distribute copies of Customer Data for the purpose of providing the Service (including interoperation of the Service with any linked Third Party Applications) in accordance with this Agreement. Customer has all the rights or permissions (including, but not limited to, permissions from any Third Party Application providers) necessary to grant SpecTrust the rights in the Customer Data under this Agreement.
Notwithstanding the foregoing, as between SpecTrust and Customer, SpecTrust retains all right, title and interest worldwide in the Service and all models, reports, analyses, statistics, databases and other information created, compiled, analyzed, generated, or derived by SpecTrust in connection with delivery of the Service and the operation of SpecTrust’s network (collectively, “SpecTrust Network Data”), regardless of the media in which such SpecTrust Network Data is embodied, now or in the future and shall have the right to use such data for purposes of providing, maintaining, developing and improving its products and services. SpecTrust Network Data may be created, compiled, analyzed, generated or derived from (a) aggregated network utilization and performance data generated and collected via the operation of SpecTrust’s network and/or in connection with the delivery of the SpecTrust Service to Customer, (b) user/usage data collected by SpecTrust from Customer site traffic (which data may not be used to positively identify end users), and (c) SpecTrust’s proprietary information, software, code, technology, and other intellectual property. SpecTrust shall have the right to monitor and inspect traffic on the SpecTrust network, as well as logs related to such traffic, as necessary to provide the Service and to derive and compile information relating to the type, nature, content, identity, behavior, signature, source, frequency, reputation, and other characteristics of Internet traffic and activity to help to identify attacks, malware, viruses, fraud, exploits, and other malicious activity that threatens SpecTrust customers on the Internet (“Threat Data”). SpecTrust shall be free to use, distribute, and make derivative works of Threat Data for the purpose of (a) providing, maintaining, developing, and improving the Service offered to SpecTrust’s customers and partners; and (b) assisting in the detection, identification, analysis, mitigation and prevention of fraud and attacks against SpecTrust customers and partners. If SpecTrust distributes Threat Data or derivative works incorporating Threat Data, to any third party, such distribution shall not directly identify Customer or its end users. To the extent personal information or personal identifiable information is included in the Threat Data or otherwise processed when Threat Data is generated, SpecTrust ensures its compliance with applicable data protection laws.
5.4 Aggregate Usage Data. SpecTrust aggregates and compiles de-identified Customer Data with de-identified data from SpecTrust’s other customers (“Aggregated Usage Data”). Customer agrees that SpecTrust may use the Aggregated Usage Data to analyze, improve, develop, support and operate the Service, and to prepare and distribute general benchmarking and industry reports derived from Aggregated Usage Data as part of the Service and publish on SpecTrust’s blogs and websites. For clarity, this Section 5.4 does not give SpecTrust the right to use the Aggregated Usage Data to identify an individual, an End User or Customer as the source of any Aggregated Usage Data, or permit SpecTrust to sell or disclose the raw data included in the Aggregated Usage Data to any third party.
5.5 Feedback. Providing any suggestions, enhancement requests, recommendations, corrections or other feedback (collectively, “feedback”) is strictly voluntary. If Customer provides any feedback to SpecTrust, orally or in writing, Customer hereby grants to SpecTrust and its Affiliates a worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free license to use and incorporate into the Service any feedback relating to the Service.
- Representations, Warranties, Exclusive Remedies and Disclaimers.
6.1 Mutual Warranties. Each party represents and warrants that (i) such party has the legal right and authority to enter into this Agreement, (ii) such party has the corporate right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement, (iii) this Agreement will constitute such party’s legal, valid and binding obligation, enforceable against such party in accordance with its terms, and (iv) no consent, approval or authorization of, or exemption by, or filing with, any governmental authority or third party is required to be obtained by such party in connection with the execution, delivery and performance by it of this Agreement or the taking of any other action contemplated hereby, which has not been obtained.
6.2 SpecTrust Warranties. SpecTrust warrants that (a) SpecTrust will not materially decrease the overall security of the Service during the Subscription Term, (b) SpecTrust will not materially decrease the functionality of the Service during the Subscription Term, and (c) SpecTrust will not knowingly and intentionally introduce Malicious Code into Customer’s systems via the SpecTrust Library. For any breach of a warranty in this Section, Customer’s exclusive remedies are those described in Sections 9.3 (Termination). SpecTrust’s warranties do not cover any breach that is caused by (i) the acts or omissions of Customer or any Account User, (ii) any Third Party Applications, (iii) any modifications of the Service by or for Customer, or (iv) failure to timely implement any modifications, upgrades, replacements or enhancements made available by SpecTrust to Customer at no additional cost.
6.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, THE SERVICE IS PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW, AND NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SPECTRUST DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS OR APPLICATIONS. MOREOVER, SPECTRUST DOES NOT WARRANT OR GUARANTEE THAT: (I) THE SERVICE WILL DETECT OR MITIGATE ALL POSSIBLE ATTACKS, BOT REQUESTS, OR OTHER THREATS; (II) THE SERVICE WILL CORRECTLY CATEGORIZE AS BOTS ALL DETECTED REQUESTS; OR (III) SCORES WILL ACCURATELY REPRESENT A THREAT LEVEL. SPECTRUST RECOMMENDS THAT CUSTOMER MAINTAIN APPROPRIATE SECURITY CONTROLS AT ITS ORIGIN SERVERS AND DATA CENTERS.
7. Indemnification.
7.1 SpecTrust Indemnification. SpecTrust shall defend, indemnify and hold Customer, Customer Affiliates that have entered into an Order Form under this Agreement (each, a “Customer Indemnified Party”) harmless from and against any direct damages, losses, settlements, judgments, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) (collectively, “Losses”) actually incurred by any Customer Indemnified Party in connection with any third party suit (each, a “Claim”) made or brought against a Customer Indemnified Party alleging that the Service, as made available by SpecTrust under this Agreement to Customer infringes or misappropriates such third party’s intellectual property rights under the laws of a country to which the Service is made available by SpecTrust to Customer. If SpecTrust receives information about an infringement or misappropriation claim related to a Service, SpecTrust may in its discretion and at no cost to Customer (i) modify the Service so that it no longer infringes or misappropriates, without breaching its warranties under Section 6.2, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim arises from or relates to: Customer Data, a Third Party Application, Customer’s breach of this Agreement, any modifications of the Service by or for Customer, or failure to timely implement any modifications, upgrades, replacements or enhancements made available by SpecTrust to Customer at no additional cost.
7.2 Customer Indemnification. Customer is solely responsible for all content and applications, including any third-party content or applications, provided to SpecTrust in connection with Customer Data. Customer acknowledges that SpecTrust does not assume and should not be exposed to the business and operational risks associated with Customer’s business or any aspects of the operation or contents of Customer’s web site(s) and/or applications(s). Customer shall defend, indemnify and hold SpecTrust, its Affiliate and licensors (each, a “SpecTrust Indemnified Party”) harmless from and against Losses incurred by any SpecTrust Indemnified Party incurred in connection with any Claim made or brought against an SpecTrust Indemnified Party alleging that Customer Data, Notifications, or Customer or any Account User infringes or misappropriates such third party’s intellectual property rights, violates Customer’s obligations to such third party or violates Applicable Laws. In addition, Customer shall defend, indemnify, and hold SpecTrust Indemnified Parties harmless against any Losses incurred by any SpecTrust Indemnified Party as a result of any Claim by a third party against SpecTrust with respect to any Customer Data, operation of Customer’s web site(s) and/or application(s) (including without limitation any activities or aspects thereof or commerce conducted thereon), or misuse of the Service.
7.3 Indemnification Process. The indemnifying party’s obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of the claim (provided however, the failure to give timely notice will not relieve the indemnifying party of its obligations under this Agreement except to the extent that such failure materially impairs the ability of the indemnifying party to defend); (ii) granting full control of the defense and settlement to the indemnifying party (provided however, the indemnified party may participate with counsel of its choosing at its own expense); (iii) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense with regard to out-of-pocket expenses, in defense and settlement of any such claim; and (iv) not admitting any fault or liability of the indemnifying party or itself.
7.4 Exclusive Remedy. This Section 7 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third party claim described in this Section 7.
8. Limitation of Liability.
8.1 Limitation of Liability. NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS.
8.2 Exclusion of Consequential and Related Damages. EACH PARTY AGREES THAT THE CONSIDERATION SPECTRUST IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY A PARTY OF THE OTHER PARTY’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST DATA, LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, REPLACEMENT SERVICES, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Term and Termination.
9.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms entered into hereunder have expired or have been terminated. If the Service continues to be provided under the Order Form after termination of this Agreement, then this Agreement will continue to be in effect until the Order Form is terminated or the obligations under the Order Form are completed.
9.2 Term of Purchased Subscriptions. The Subscription Term for the Service shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to one year (unless a different renewal term is specified in the Order Form, in which case, the renewal term specified in the Order Form will apply), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. Unless otherwise stated in the Order Form, the applicable fee for any automatic renewal term will be determined using SpecTrust’s then-current list price applicable for such renewed Service.
9.3 Termination. This Agreement may be terminated by either party on delivery of written notice of termination to the other party, as follows: (1) if the other party materially breaches this Agreement and such breach is not capable of being cured; (2) if the other party materially breaches this Agreement, such breach is capable of being cured and the breaching party fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the nonbreaching party; or (3) if the other party: (a) makes a general assignment for the benefit of creditors, (b) admits in writing its inability to pay debts as they come due, (c) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (d) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within sixty (60) days after such filing. Termination of the Agreement shall terminate all rights granted in this Agreement. Upon termination of the Agreement (i) Customer will cease all use of the Service, and if applicable, will pay SpecTrust any outstanding fees and (ii) Customer will not be entitled to any refunds or credits for unused Service. Upon termination of this Agreement, all rights, licenses, consents and authorizations granted by a party hereunder will immediately terminate, other than those expressly specified to continue after termination.
9.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 9.3 (Termination), SpecTrust will refund to Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by SpecTrust in accordance with Section 9.3, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of its obligation to pay any fees payable to SpecTrust for the period prior to the effective date of termination.
9.5 Surviving Provisions. Sections 1 and 5 through 10 will survive any termination or expiration of this Agreement.
10. General Provisions.
10.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to the Customer shall be addressed to the relevant billing contact designated by the Customer. All other notices to the Customer shall be addressed to the relevant Service system administrator designated by the Customer. Notwithstanding the foregoing, SpecTrust occasionally may need to inform Customer and Account Users of important announcement regarding operation of the Service, such as notice of downtime, and may provide such information by posting online.
10.2 Waiver. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
10.3 Modifications. SpecTrust may amend this Agreement at any time upon notice to Customer; provided, that, any such amendments shall not become effective with respect to any Order Form then in effect until the commencement of the subsequent renewal thereof, unless SpecTrust notifies Customer that such amendments are required to comply with applicable laws, rules, regulations or orders, or are otherwise necessary to protect the safety or security of SpecTrust or any of its customers.
10.4 Supplemental Terms. Customer’s 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 Customer for its acceptance when it signs up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.
10.5 Marketing. Customer agrees to participate in reasonable marketing activities that promote the benefits of the Service to other potential customers and to the use of Customer’s name and logo on SpecTrust’s website and promotional materials. Customer agrees that SpecTrust may disclose Customer as a customer of SpecTrust.
10.6 Export Compliance. The Service, the SpecTrust Library and other technology SpecTrust makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not located in any jurisdiction in which the provision of the Service, SpecTrust Library or Customer Data is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and Customer shall not provide access to the Service, the SpecTrust Library or Customer Data to any government, entity or individual located in any Prohibited Jurisdiction. Each party represents, warrants and covenants that (a) it is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (b) it is not a national of, or a company registered in, any Prohibited Jurisdiction, (c) it shall not permit Account Users to access or use the Service, SpecTrust Library or Customer Data in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (d) it shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which the Customer and any of its Account Users are located.
10.7 Force Majeure. Each party will be excused from any failure or delay caused by or the result of causes beyond its reasonable control and could not have been avoided or corrected through the exercise of reasonable diligence, including, but not limited to, acts of God, fire, flood, hurricane or other natural catastrophe, terrorist actions, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof, or any civil or military authority, national emergency, insurrection, riot or war, general failure of telecommunication or digital transmission links, general failure of the Internet, failure of Third Party Applications, failure of any third party operating systems, platforms, applications or networks not under reasonable control of SpecTrust, or other similar occurrence.
10.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, SpecTrust may assign this Agreement in its entirety (including all Order Forms), without the Customer’s consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.9 Governing Law; Jurisdiction; Fees and Costs. This Agreement will be construed and governed by the laws of the State of California, without giving effect to its conflicts of law principles. The parties hereby submit to the personal jurisdiction of, and agree that any legal proceeding with respect to or arising under this Agreement will be brought solely in, the state courts of the State of California for the county of Santa Clara or the United States District Court for the Northern District of California, if such court has subject matter jurisdiction. Notwithstanding the foregoing, either party will at all times have the right to commence proceedings in any other court of its choice with the appropriate jurisdiction for interim injunctive relief. If any legal action or proceeding is commenced in connection with any dispute arising under, relating to or otherwise concerning this Agreement, the prevailing party, as determined by the court, will be entitled to recover its attorneys’ and experts’ fees and all costs and necessary disbursements actually incurred in connection with such action or proceeding.
10.10 Federal Government End Use Provisions. This Section applies only if the Customer is the government of a sovereign nation, state or province or one of its agencies. SpecTrust provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with this Agreement. If a government agency has a need for rights not granted under these terms, it must negotiate with SpecTrust to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement. The Service was developed fully at private expense.
10.11 Relationship of the Parties; Non-exclusivity. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, or fiduciary or employment relationship between the parties. Nothing in this Agreement will be construed to prevent SpecTrust from marketing, licensing, selling or otherwise providing the Service or any aspects of SpecTrust’s technology or services to any third party. Nothing in this Agreement will be construed to prevent the Customer from obtaining services similar to the Service from a third party.
10.12 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
10.13 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
10.14 Entire Agreement. This Agreement includes all Order Forms agreed to by the parties that reference this Agreement and all expressly referenced documents, including any Supplemental Terms. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof, and therefore the parties expressly disclaim all prior discussions, emails, RFPs and/or agreements between the parties. This Agreement supersedes all prior and contemporaneous agreements or communications, including, without limitation, terms included on Customer’s purchase order or procurement portal. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (i) the applicable Order Form, (ii) this Agreement, and (iii) the Documentation.
