End User Software and Subscription Agreement
READ CAREFULLY THESE TERMS AND CONDITIONS, AS THEY, TOGETHER WITH THE SPIN SYSTEMS INC. ORDER FORM ON WHICH THEY ARE REFERENCED, CONSTITUTE A LEGALLY BINDING AGREEMENT AND GOVERN YOUR USE OF THE SPIN SYSTEMS INC. SOFTWARE AND THE PROVISION BY SPIN SYSTEMS INC. OF ASSOCIATED SERVICES, INCLUDING THE SPIN SYSTEMS INC. CLOUD SERVICES. BY DOWNLOADING, INSTALLING AND/OR USING THE SPIN SYSTEMS INC. SOFTWARE, OR BY RECEIVING THE SPIN SYSTEMS INC. SERVICES, OR BY ACCESSING OR USING THE SPIN SYSTEMS INC. CLOUD SERVICES, YOU ARE INDICATING THAT YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT DOWNLOAD, INSTALL THE SPIN SYSTEMS INC. SOFTWARE OR RECEIVE THE SPIN SYSTEMS INC. SERVICES OR ACCESS AND USE THE SPIN SYSTEMS INC. CLOUD SERVICES. This End User Software and Subscription Agreement (this “Agreement”) is entered into by and between the Spin Systems Inc. entity identified in Section 10 (“Spin Systems Inc. ”) and the customer, identified on the Order Form, that is purchasing a Software Subscription and/or Services (“You” or “Customer”), and is effective as of the date you download the Spin Systems Inc. Software, receive the Spin Systems Inc. Services, access the Spin Systems Inc. Cloud Services for production use (i.e. not trial use) or sign the Order Form, whichever comes first (the “Effective Date”). Spin Systems Inc. and Customer are collectively referred to as the “Parties” and individually as a “Party”. If you are entering into this Agreement on behalf of a company or legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “You” and “Your” shall refer to such entity.
Agreement shall govern Customer’s use of the Spin Systems Inc. Software and/or Services.
The following capitalized terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth where they are first defined. 1.1 “Affiliate” means an entity that controls, is controlled by, or is under common control with Customer, where “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity.
1.2 Documentation” means the end user manuals or documentation regarding the use of the Spin Systems Inc. Software and/or Spin Systems Inc.
1.3 “Generated Code” means an independently executable program or other similar binary code artifact that is generated by the Spin Systems Inc. Software for which Customer has purchased a Software Subscription hereunder.
1.4 “Learner” means an individual identified by Customer as an individual authorized to use or
1.5 “Open Source Software” means individual software components that are provided with the Spin Systems Inc. Software, for which the source code is made generally available, and that are licensed under the terms of various published open source software license agreements or copyright notices accompanying such software components.
1.6 “Order Form” means (i) a Spin Systems Inc. order form accepted by both Parties, pursuant to which Customer may order the Spin Systems Inc. Software, the Spin Systems Inc. Cloud Services, and Services from Spin Systems Inc., or (ii) any document accepted by and between an authorized reseller of Spin Systems Inc. pursuant to which Customer may order the Spin Systems Inc.
Software, the Spin Systems Inc. Cloud Services, and Services from Spin Systems Inc. .
1.7 “Software Subscription” means Customer’s right to use the applicable Spin Systems Inc. Software, subject to the License Type restrictions for which such right has been purchased.
1.8 “Software Subscription Key” means a logical code that activates and controls a Software Subscription based on (i) the applicable License Type, (ii) the Spin Systems Inc. Software edition for which a Software Subscription has been purchased, and (iii) the Subscription Term. A Software Subscription Key is “attached” to a specific hardware machine identified by a MAC address, and may be installed on only one machine at a time.
1.9 “Subscription Term” means the period of time set forth in the applicable Order Form for which a Software Subscription, Learning Subscription, Cloud Subscription or Monthly Cloud Subscription is valid. Notwithstanding the foregoing, the Subscription Term for any Generated Code is always perpetual.
1.10 “Support Services” means the technical support services related to the use of the Spin Systems Inc. Software and/or Spin Systems Inc.
1.11 “Unsupported Code” means any program or binary code artifacts created or generated through use of Spin Systems Inc. Open Studio.
1.12 “Update” means any Major Release, Minor Release, Service Pack and/or Patch (all as defined in the Support Services Policy) of or for the Spin Systems Inc. Software that is made generally available by Spin Systems Inc. to its customers during the term of this Agreement.
1.13 “Services” means collectively the Consulting Services, Learning Services, Training Services, and/or Support Services.
2. Software Subscription, Delivery, Restrictions
2.1 License Grants. Spin Systems Inc. hereby grants to Customer, solely for Customer’s and Affiliates’ internal business operations, a limited, non-exclusive, non-transferable right and license to: (a) Use the Spin Systems Inc. Software during the Subscription Term, subject to the applicable License Type restrictions (as specified on an Order Form); (b) Use any Generated Code in perpetuity subject to the restrictions set forth below in Section 2.2; (c) Permit Affiliates or third party contractors performing services on Customer’s behalf to use the Spin Systems Inc. Software and Documentation in accordance with the terms and conditions of this Agreement provided that (i) such use must be solely for the benefit of Customer or Affiliates; and (ii) Customer shall be responsible for all acts and omissions of such third parties and; (d) Make a reasonable number of copies of the Spin Systems Inc. Software for backup and/or archival purposes, excluding Hot and Warm Backup purposes as such terms are defined in the License Type Addendum.
2.2 Reservation of Rights; Restrictions. Spin Systems Inc. owns all right title and interest in and to the Spin Systems Inc. Software and any derivative works thereof, and no other license to the Spin Systems Inc. Software is granted to Customer by implication, estoppel or otherwise. Customer understands and agrees that Customer’s ability to use the Spin Systems Inc. Software is determined by the Software Subscription Key provided to Customer. Customer agrees not to: (i) use the Spin Systems Inc. Software other than for licensed purposes, such as for the processing of Unsupported Code other than Generated Code; (ii) prepare derivative works from, disassemble, reverse compile, reverse engineer, modify, copy or use the Spin Systems Inc. Software in any manner except as expressly permitted in this Agreement; (iii) attempt to circumvent, disable or defeat the limitations on Customer’s use of the Spin Systems Inc. Software encoded into the Software Subscription Key, including without limitation any restrictions on the ability to process or utilize binary code artifacts that were created using TOS; (iv) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Spin Systems Inc. Software or the Generated Code in whole or in part to any third party; (v) use the Spin Systems Inc. Software or the Generated Code for providing time-sharing services, any software-as-a-service offering (“SaaS”), service bureau services or as part of an application services provider or as a service offering; (vi) alter or remove any proprietary notices in the Spin Systems Inc. Software or the Generated Code; and (vii) make available to any third party any analysis of the results of operation of the Spin Systems Inc. Software, including benchmarking results, without the prior written consent of Spin Systems Inc. . Notwithstanding the foregoing restrictions, in the event Customer has purchased a Software Subscription license for Commercial Use (as such term is defined below), Customer shall be permitted to use the Spin Systems Inc. Software to provide third party services in cases where such third parties access the Customer provided applications or services, but where such third parties do not have the ability to install, configure, manage or have direct access to the Spin Systems Inc. Software. Spin Systems Inc. hereby agrees, subject to payment of the applicable fees, to permit such use and the terms of this Agreement, including references to “internal use” and/or “internal business operations” shall be deemed to include and permit such use (hereafter referred to as “Commercial Use“).
2.3 Delivery; Software Subscription Keys and Use Manager. The Spin Systems Inc. Software is only available electronically via download and will not be available in any other format. Spin Systems Inc. Software shall be deemed delivered to Customer upon Spin Systems Inc. making available to Customer the Software Subscription Key. Customer understands and agrees that a Software Subscription Key provided by Spin Systems Inc. is required to enable the Spin Systems Inc. Software and that Software Subscription Keys are valid only during the Subscription Term. Customer further understands and agrees that: (i) in case of breach by Customer of the payment terms stipulated in this Agreement, Spin Systems Inc. will have the right to suspend the Software Subscription and such suspension will not give rise to any modification of the amount of the Software Subscription fee or to any extension of the Subscription Term; (ii) the Spin Systems Inc. Software will, in the absence of any renewal of the Subscription Term, be disabled automatically upon the expiration of the Subscription Term and (iii) the Software Subscription Key will automatically prevent the use of the Spin Systems Inc. Software in violation of the applicable License Type restrictions, as set forth in the Order Form.
3.1 Support Services. Subject to the payment by Customer to Spin Systems Inc. of applicable fees, Spin Systems Inc. will provide Customer with the Support Services specified in the Order Form. Support Services are provided to Customer solely for Customer’s internal use and Customer may not use the Support Services to supply any consulting, support or training services to any third party. Spin Systems Inc. reserves the right to modify reasonably its Support Services Policy from time to time, provided that in no event will Spin Systems Inc. materially degrade or diminish the level and quality of Support Services provided under its Support Services Policy during the term of this Agreement. Spin Systems Inc. shall have no obligation to support versions of the Spin Systems Inc. Software that have been modified by Customer or used to process, manipulate, or otherwise utilize Unsupported Code.
3.2 Consulting Services. Subject to the payment by Customer to Spin Systems Inc. of applicable fees, Spin Systems Inc. agrees to make commercially reasonable efforts to provide Customer with consulting services (“Consulting Services”), if any, set forth on an applicable Order Form, or as may be further described in an applicable Statement of Work. Unless expressly specified in the applicable Order Form, Consulting Services are provided on a time and material (“T&M”) basis pursuant to the T&M rates specified in the applicable Order Form. Any hour worked during a weekend (Saturday, Sunday) or Bank/National Holiday will be charged at 1.5 times the agreed hourly rate. Any estimate of time or number of days or hours required to perform Consulting Services or any monetary amount stated in the applicable Order Form or Statement of Work for T&M Services, shall be deemed an estimate for Customer’s budgeting and Spin Systems Inc. resource scheduling purposes.
3.3 Training Services. Subject to the payment by Customer to Spin Systems Inc. of applicable fees, Spin Systems Inc. agrees to provide Customer with the instructor-led training services (“Training Services”), if any, set forth on an applicable Order Form, for which Customer has purchased education credits or as may be further described in an applicable Statement of Work. Education credits may be purchased by Customer and applied towards Training Services within twelve (12) months from the date of purchase.
3.4 Cancellation and Rescheduling. Cancelling or rescheduling of Consulting or Training Services must be done in writing. Consulting or Training Services are scheduled by joint agreement between the Parties and cancelled or postponed by Customer less than five (5) business days prior to the engagement commencing shall be subject to a cancellation/rescheduling fee of $1,500 per Spin Systems Inc. Consultant in addition, Customer shall reimburse Spin Systems Inc. for any non-refundable travel expenses that have been incurred by Spin Systems Inc. prior to such cancellation or postponement of the Consulting and /or Training Services by Customer.
3.5 Subcontractors. Spin Systems Inc. reserves the right to use subcontractors to perform Services on Spin Systems Inc. ’s behalf, and Customer hereby consents to such use, provided that Spin Systems Inc. shall remain solely responsible to Customer for the provision of all applicable Services.
3.7 Customer Policies. While on premises owned, controlled or hired by Customer, all Spin Systems Inc. personnel shall conduct themselves in accordance with the standard health, safety and security policies of Customer.
3.8 Ownership of Work Product and Other Materials. In the course of performing the Services, Spin Systems Inc. may create derivative works of the Spin Systems Inc. Software, new software or other works of authorship (collectively “Work Product”). Subject to Customer’s ownership interest in, and Spin Systems Inc. ’s obligations with respect to, Customer’s Confidential Information, Spin Systems Inc. shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. Spin Systems Inc. hereby grants to Customer a license to such Work Product under the same terms and conditions as Customer’s license to the Spin Systems Inc. Software set forth in Section 2.1 above. Notwithstanding the foregoing, and for the avoidance of doubt, in the case of Work Product that are Generated Code, Spin Systems Inc. shall retain ownership of the Generated Code. Nothing in this Agreement shall be deemed to prohibit Spin Systems Inc. from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Services. Customer agrees and acknowledges that Customer is not obtaining any intellectual property right in or to any materials provided by Spin Systems Inc. to Customer in connection with the provision to Customer of Learning Services or Training Services(“Materials”),other than the rights of use specifically granted in this Agreement. Customer shall be entitled to keep and use all Materials provided by Spin Systems Inc. to Customer, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to Spin Systems Inc. . In particular and without limitation, Materials may not be copied electronically or otherwise whether or not for archival purposes, modified including translated, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. All Spin Systems Inc. trademarks, trade names, logos and notices present on the Materials shall be preserved and not deliberately defaced, modified or obliterated except by normal wear and tear. Customer shall not use any Spin Systems Inc. trademarks without Spin Systems Inc. ’s express written authorization. The Learning Services provide Learners with ongoing access to a variety of materials and services for their personal use and are not assignable or transferrable. Providing Learning Services Materials to, or using them for the benefit of, a third party or anyone other than the applicable Learner is a material breach of the Agreement.
3.9 Customer Obligations. Customer agrees to provide Spin Systems Inc. with such cooperation, materials, information, access and support which Spin Systems Inc. deems to be reasonably required to allow Spin Systems Inc. to successfully provide the Services. Customer understands and agrees that Spin Systems Inc. ’s obligations to provide Services are expressly conditioned upon Customer providing such cooperation, materials, information, access and support. If Customer has ordered Learning Services, Customer shall designate an individual to be assigned a unique user name and password to access and administer the Learning Subscription (“Power User”). The Power User shall be responsible for identifying and authenticating all Learners, approving access by such Learners to the Learning Subscription (“Active Learners”), and deactivating or re-activating Learners. Active Learners are limited to the total number of Licensed Users. Customer is solely responsible for (a) assessing each Learner’s suitability for the Learning Subscription, (b) each Learner’s enrollment in appropriate course(s), and (c) ensuring Learners maintain the confidentiality of user names, passwords and account information.
4. Fees, Payment and Taxes
4.1 Fees. Customer agrees to pay Spin Systems Inc. the applicable Software Subscription, Services and Cloud Subscription fees stated on the Order Form.
4.2 Invoicing. Unless otherwise specified on an Order Form or under the Cloud Services Addendum, the fees for the Services, Software Subscription and/or Cloud Subscription shall be invoiced upon execution of the applicable Order Form by both Parties. If no Order Form is executed, then upon receipt and acceptance of a valid Purchase Order by Spin Systems Inc. .
4.3 Payment. Unless otherwise specified on an Order Form, all invoices will be paid in the official currency of the country in which the Spin Systems Inc. entity is identified under Section 10 below and are due upon receipt and will be paid within thirty (30) days of the date of the invoice. Payments will be made without right of set-off or chargeback. Customer shall pay all amounts due under this Agreement to Spin Systems Inc. at the address set forth herein or such other location as Spin Systems Inc. designates in writing. Any amount not paid when due may be subject to interest at the rate of one and one-half percent (1.5%) per month or, the maximum rate permitted by law, whichever is greater, determined and compounded on a daily basis from the date due until the date paid.
4.4 Taxes. All amounts payable by Customer to Spin Systems Inc. under this Agreement are exclusive of any tax, levy, VAT or other relevant governmental charge that may be assessed by any jurisdiction (“Taxes”) and Customer agree to pay such Taxes, except for Taxes based on Spin Systems Inc. ’s income, whether based on gross revenue, the delivery, possession or use of the Spin Systems Inc. Software, the provision of Services, the execution or performance of this Agreement or otherwise, and including without limitation all goods and services tax, sales tax, excise duty, import or export levy, value added tax, governmental permit fees, license fees, and customs. If, as a result of any tax or levy, Customer is required to withhold any amount on any payment to Spin Systems Inc. , then the amount of the payment to Spin Systems Inc. shall be automatically increased to totally offset such tax, so that the amount actually remitted to Spin Systems Inc. , net of all Taxes, equals the amount invoiced or otherwise due. Customer will promptly furnish Spin Systems Inc. with the official receipt of payment of these Taxes to the appropriate taxing authority. If Customer is tax exempt, Customer shall provide Spin Systems Inc. with a certificate of exemption acceptable to the taxing authority.
4.5 Purchases through Resellers. In the event Customer purchases licenses to the Spin Systems Inc. Software and/or purchases the Services (including the Spin Systems Inc. Cloud Services and any renewals thereof) through an authorized reseller of Spin Systems Inc. , the terms and conditions of this Agreement shall apply and supersede any other agreement except for any terms and conditions related to pricing, payment or Taxes. Such terms and conditions shall be negotiated solely by and between Customer and such authorized reseller. In the event Customer ceases to pay the Reseller, or terminates its agreement with the Reseller, Spin Systems Inc. shall have the right to terminate Customer’s access to the Spin Systems Inc. Cloud Service at any time upon thirty (30) days’ prior written notice to Customer unless Customer and Spin Systems Inc. have agreed otherwise in writing.
5. Term and Termination
5.1 Term. This Agreement shall commence on the Effective Date and shall, unless earlier terminated under Section 5.2 below, continue in force until the expiration of the applicable Subscription Term.
5.2 Termination; Post Termination. Either Party may, upon written notice to the other Party, terminate this Agreement for material breach by the other Party if such Party has failed to cure such material breach within thirty (30) days of receiving written notice of such material breach from the non-breaching Party. Notwithstanding the foregoing, this Agreement shall automatically terminate in the event that Customer intentionally breaches the scope of the license granted in Section 2.1 of this Agreement. Upon termination of this Agreement, for any reason, Customer shall promptly cease the use of the Spin Systems Inc. Software and Documentation and destroy (and certify to Spin Systems Inc. in writing the fact of such destruction), or return to Spin Systems Inc. , all copies of the Spin Systems Inc. Software and Documentation then in Customer’s possession or under Customer’s control.
5.3 Survival. All payment obligations under Section 4, plus Sections 1, 2, 3.8, 5.2, 5.3, and 6 – 12 shall survive any termination or expiration of this Agreement.
6.1 Confidential Information. Each party (“Receiving Party“) agrees to retain in confidence any information provided to it by the other party (“Disclosing Party“) that is marked, labeled or otherwise designated as confidential or proprietary or that Receiving Party knew, or should have known, was confidential due to the circumstances surrounding the disclosure by Disclosing Party (“Confidential Information“). The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by the Receiving Party without reference to the other party’s Confidential Information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). Each party will at all times, both during the Term of this Agreement and thereafter, keep in trust and confidence all Confidential Information of the other party and shall only disclose Confidential Information to its employees, agents, representatives, affiliates and authorized contractors or subcontractors (collectively “Representatives”) having a need to know for the purposes of this Agreement. Each party will notify and inform such Representatives of each party’s limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information and will obtain or have obtained its Representatives’ agreements to comply with such limitations, duties, and obligations with regard to such Confidential Information no less restrictive than those contained herein. Each party is liable for all acts and omissions of the Representatives related to the other party’s Confidential Information. Each party agrees to give notice to the other party immediately after learning of or having reason to suspect a breach of any of the proprietary restrictions set forth in this Section. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
7. Warranties and Remedies
Spin Systems, Inc. software and documentation has been tested and reviewed. Spin Systems, Inc. makes no warranty or representation, either express or implied, with respect to the software and documentation included. In no event will Spin Systems, Inc. be liable for direct, indirect, special, incidental, or consequential damages resulting from any defect in the software or documentation included with these products. In particular, Spin Systems, Inc. shall have no liability for any programs or data used with these products, including the cost of recovering such programs or data even if Spin Systems Inc. has been advised of the possibility of such damages.
8. Intellectual Property Infringement Claims
8.1 Obligation. Subject to the applicable conditions and limitations set forth in this Section 8, Spin Systems Inc. will, at its expense (i) defend, or at its option settle, a claim brought against Customer by an unaffiliated third party alleging that the Spin Systems Inc. Software infringes such party’s patent registered in the United States, or any copyright or trademark of such party registered in the jurisdiction of Customer’s use of the Spin Systems Inc. Software and/or Spin Systems Inc. Cloud Services, or makes intentional, unlawful use of such party’s trade secret (each an “Infringement Claim”) and (ii) pay any settlement of such Infringement Claim consented to by Spin Systems Inc. or pay any damages finally awarded to such third party by a court of competent jurisdiction as the result of such Infringement Claim.
8.2 Remedies. If during the Term the Spin Systems Inc. Software or in Spin Systems Inc. ’s reasonable opinion is likely to become, the subject of an Infringement Claim, Spin Systems Inc. may, at its expense and option: (i) obtain the right for Customer to continue to use the Spin Systems Inc. Software (ii) modify the Spin Systems Inc. Software so that it becomes non-infringing but is substantially functionally equivalent; or (iii) in the event that neither (i) or (ii) are commercially reasonable options, terminate Customer’s license to use the Spin Systems Inc. Software and promptly refund to Customer any pre-paid, but unused fees paid by Customer to Spin Systems Inc. for the Software Subscription or Cloud Subscription that was fulfilled prior to such termination.
8.3 Exclusions. Spin Systems Inc. will have no obligation to Customer to the extent any Infringement Claim is based upon or results from: (i) Customer’s use of any version of the Spin Systems Inc. Software not made available directly through Spin Systems Inc. or an authorized Spin Systems Inc. reseller; (ii) the failure of Customer to use an Update of the Spin Systems Inc. Software that would have avoided the Infringement Claim; (iii) a modification of the Spin Systems Inc. Software that is not performed by Spin Systems Inc. ; (iv) the combination, operation, or use of the Spin Systems Inc. Software with any other products, services or equipment not provided by Spin Systems Inc. ; (v) specifications Customer provides to Spin Systems Inc. for any Services or Work Product Deliverables, (vi) any intellectual property right owned or licensed by Customer, excluding the Software or Spin Systems Inc. Cloud Services or (vii) any third party Open Source Software. Customer will reimburse Spin Systems Inc. for any expenses, costs and/or damages that result from any of the actions or situations described in 8.3(i) – (vii) above.
8.4 Conditions. The obligations of Spin Systems Inc. in Section 8.1 are conditioned upon Customer (i) notifying Spin Systems Inc. promptly of any threatened or pending Infringement Claim, (ii) giving Spin Systems Inc. , reasonable assistance and information requested by Spin Systems Inc. in connection with the defense or settlement of the Infringement Claim and (iii) tendering to Spin Systems Inc. sole control over the defense and settlement of the Infringement Claim. Customer’s counsel will have the right to participate in the defense of the Infringement Claim, at Customer’s own expense. Customer will not, without the prior written consent of Spin Systems Inc. , settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Infringement Claim.
8.5 THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF SPIN SYSTEMS INC. , AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE SPIN SYSTEMS INC. SOFTWARE AND/OR THE SPIN SYSTEMS INC. CLOUD SERVICES.
9. Limitation of Liability
9.1 Disclaimer of Certain Damages. IN NO EVENT SHALL CUSTOMER OR SPIN SYSTEMS INC. OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE SPIN SYSTEMS INC. SOFTWARE OR THE SPIN SYSTEMS INC. CLOUD SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SPIN SYSTEMS INC. WILL REMAIN LIABLE FOR DEATH AND PERSONAL INJURY IN JURISDICTIONS WHERE THIS LIABILITY MAY NOT BE RESTRICTED. THE SPIN SYSTEMS INC. CLOUD SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, INACCESSIBILITY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET. SPIN SYSTEMS INC. IS NOT RESPONSIBLE AND DISCLAIMS ALL LIABILITY FOR ANY DELAYS, FAILURES OR DAMAGES RESULTING FROM SUCH PROBLEMS. YOU ARE FULLY RESPONSIBLE FOR INTERNET ACCESS AND CONNECTIVITY ISSUES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9.1 SHALL NOT APPLY TO A BREACH THROUGH GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY CUSTOMER OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 2.1 OR TO A BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY) OF THIS AGREEMENT.
9.2 Damages Cap. IN NO EVENT SHALL SPIN SYSTEMS INC. ’S OR ITS LICENSORS’ AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS CUSTOMER PAID OR WAS REQUIRED TO PAY SPIN SYSTEMS INC. UNDER THIS AGREEMENT FOR THE SPIN SYSTEMS INC. SOFTWARE, SERVICESGIVING RISE TO SUCH LIABILITY, IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
9.3 CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
10. Customer’s contracting Party, Governing Laws, Jurisdiction and Notices.
10.1 Contracting Party and Governing Law
All questions or disputes concerning this Agreement and the exhibits hereto will be governed by and construed in accordance with the internal laws of the Commonwealth of Virginia, without giving effect to any choice of law or conflict of law provision or rule (whether of the Commonwealth of Virginia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the Commonwealth of Virginia. The parties hereby: (i) submit to the non-exclusive jurisdiction of any state or federal court sitting in the Commonwealth of Virginia in any action or proceeding arising out of or relating to this Agreement; and (ii) agree that all claims in respect of such action or proceeding may be heard or determined in any such court. Each party hereby waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought. The parties hereby agree that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law.
10.2 Governing Law and Jurisdiction. Each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
10.3 Notices. Any notice or other communication under this Agreement given by either Party to the other will be deemed to be properly given if given: (i) in writing and delivered in person; (ii) by facsimile, if acknowledged received by return facsimile or followed within one day by a delivered or mailed copy of such notice; (iii) by mail, if mailed, properly addressed and stamped with the required postage to the corresponding address stated above; (iv) by electronic mail to firstname.lastname@example.org or (v) by next day delivery, if mailed by a major commercial delivery service. Either Party may from time to time change its address for notices under this Section by giving the other Party notice of the change in accordance with this Section 10.2.
11.1 Assignment. Customer may not assign this Agreement, in whole or in part, without the prior written consent of Spin Systems Inc. . Any assignment in violation of this Section 11.1 shall be void and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and assigns. 11.2 Customer Identification. Subject to Customer’s prior written approval, Spin Systems Inc. may identify Customer as a user of the Spin Systems Inc. Software, and/or the Services, as applicable, on its website, through a press release issued by Spin Systems Inc. and in other promotional materials. Customer also agrees to cooperate with Spin Systems Inc. in writing a case study exposing how the Spin Systems Inc. Software, Spin Systems Inc. Cloud Services and/or the Services are being used and the benefits the Customer is deriving from this use. 11.3 Applicable laws. Customer acknowledges that the Spin Systems Inc. Software is subject to U.S. export control laws and regulations. Customer warrants that it is now and will remain in the future compliant with all export control laws and regulations, and will not export, re-export, otherwise transfer or disclose any Spin Systems Inc. Software to any person contrary to such laws or regulations. Spin Systems Inc. and its customers adhere to the Foreign Corrupt Practices Act 15 U.S.C. § 78dd-1, 15 U.S.C. §§ 78m(b)(2)(A) and (B)of 1977 and the UK Anti-Bribery Act of 2010 and denounce any form of bribery and other unethical behavior in its business negotiations.
11.4 Fees. In any judicial proceeding between Customer and Spin Systems Inc. arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover all reasonable expenses incurred as a result of the proceeding, including reasonable attorneys’ fees.
11.5 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement, other than monetary obligations, as a result of any cause or condition beyond such Party’s reasonable control.
11.6 Non-waiver. Any failure of either Party to insist upon or enforce performance by the other Party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such Party’s right to assert or rely upon such provision, right or remedy in that or any other instance. 11.7 Language. The governing language of this Agreement shall be English. Any translation of this Agreement is made for information purposes only and the English language version shall prevail.
11.8 Personal Data Processing and privacy. Customer agrees that it shall not disclose any personal data, including special categories of personal information, protected health information, or any other information subject to the protections of the Applicable Data Protection Laws (collectively “Personal Data”) to Spin Systems Inc. for processing, whether through the Spin Systems Inc. Cloud Services or otherwise, and Customer shall indemnify Spin Systems Inc. for any third-party claims arising from such disclosure. In the event that Customer wishes for Spin Systems Inc. to process any Personal Data subject to the Applicable Data Protection Laws, the Parties shall enter into the Spin Systems Inc. and adhere to our privacy statement located at: https://mdaca.spinsys.com/privacy/.
11.9 Entire Agreement. This Agreement, including the License Type Addendum, Cloud Services Addendum, Stitch Products Addendum, and Data Protection Schedule, and any Order Form accepted by the Parties that references this Agreement (which is hereby incorporated herein by this reference), completely and exclusively state the entire agreement of the Parties regarding the subject matter herein, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the Parties, oral or written, regarding such subject matter. In the event of conflict or inconsistency among the License Type Addendum, Cloud Services Addendum, Stitch Products Addendum, and Data Protection Schedule, and, this Agreement and an applicable Order Form, the following order of precedence shall apply: (a) the Order Form (b) this Agreement, (c) the License Type Addendum, (d) the Cloud Services Addendum, (e) Stitch Products Addendum, (f) the Data Protection Schedule. Without limiting the foregoing, this Agreement will supersede any conflicting terms in any “click-to-accept” end user license agreement that may be embedded within the Spin Systems Inc. Software, except for terms regarding Open Source Software which are referenced under Section 1.4 (“Open Source Software”). The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation or other document issued by Customer, unless the Parties execute a written agreement expressly indicating: (i) that such document shall modify this Agreement; and (ii) that the terms of such purchase order shall supersede and control in the event of any inconsistency.
12. Country Unique Terms.
12.1: United States.
12.1.1 Government Rights. The Spin Systems Inc. Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Spin Systems Inc. Software and Documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202.