FrontSpin Terms of Service
(Date Last Modified: November 3rd 2020)
THESE FRONTSPIN TERMS OF SERVICE (“TERMS”), TOGETHER WITH ANY ORDER FORMS ENTERED INTO AS DESCRIBED HEREIN, ARE PART OF A LEGAL CONTRACT (“AGREEMENT”) BETWEEN PERSONS OR ENTITIES REGISTERING FOR AN ACCOUNT (“CUSTOMER”) IN ORDER TO USE THE SERVICES PROVIDED BY FRONTSPIN AT THE WEBSITE WWW.FRONTSPIN.COM (“SITE”) AND TALKCYCLE LLC DBA FRONTSPIN, (“FRONTSPIN”). THE TERMS SET FORTH THE TERMS AND CONDITIONS UNDER WHICH CUSTOMER IS PERMITTED TO USE SUCH SERVICES THROUGH, AND APPLY TO ANYONE WHO REGISTERS, FOR THEMSELVES OR ON BEHALF OF AN ENTITY THEY ARE AUTHORIZED TO REPRESENT, FOR AN ACCOUNT IN ORDER TO USE THE SERVICES. IF YOU ARE REGISTERING FOR AN ACCOUNT ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT AND WARRANT TO FRONTSPIN THAT YOU HAVE THE ACTUAL AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT.
IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, YOU MAY NOT REGISTER FOR AN ACCOUNT. BY REGISTERING FOR AN ACCOUNT, YOU ARE IRREVOCABLY AGREEING TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS.
FRONTSPIN RESERVES THE RIGHT TO CHANGE, UPDATE, OR ADD OR REMOVE PROVISIONS OF THESE TERMS, AT ANY TIME BY POSTING THE UPDATED TERMS ON THE SITE. THE DATE OF THE MOST RECENT CHANGES IS POSTED AT THE TOP OF THIS PAGE. CUSTOMERS ARE ENCOURAGED TO REVIEW THE TERMS REGULARLY FOR CHANGES. ANY UPDATES THAT ARE MADE DURING CUSTOMER’S SERVICE TERM WILL TAKE EFFECT UPON RENEWAL THAT SERVICE TERM.
1.Definitions
The following terms have the meanings set forth below, and other defined terms have the meanings set forth where such terms are first underlined:
1.1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement, where “control” means direct or indirect ownership or control of more than 50% of the voting interests of the applicable party.
1.2. “Authorized Users” means employees or contractors of Customer who are authorized by Customer to access and use the Services on behalf of Customer.
1.3. “Customer Data” means all data and information submitted, transmitted, generated or stored by Customer in connection with the use of the Services.
1.4. “Services” means FrontSpin’s Web-based, on demand services, as further described on the Site.
1.5. “Services Fees” means the fees set forth in the FrontSpin fee schedule available at the Site, or as otherwise set forth in a Service Order, to be paid by Customer in consideration of the right to use the Services during the Service Term.
1.6. “Service Order” means an order placed by Customer for Services, that is either (i) a document executed by both parties (whether such execution itself is physical electronic) or (ii) an electronic submission completed on a self-serve basis by Customer (and not separately executed by FrontSpin) as part of the registration process on the Site.
1.7. “Service Term” means the term for which Customer has purchased the right to access and use the Services, as set forth in an applicable Service Order.
1.8. “Taxes” means taxes, levies, duties or similar governmental assessments of any nature whatsoever, including but not limited to income, excise and interest equalization taxes (other than United States federal income tax or U.S. state income or franchise taxes on FrontSpin) value-added, sales, use or withholding taxes, interest and penalties assessable by any local, state, provincial, federal or foreign jurisdiction whether now in existence or as the result of a change in, or promulgation of, any treaty, statute or regulation or interpretation thereof, or any directive, guideline or otherwise, by a central bank or fiscal authority or any other entity (whether or not having the force of law) or a change in the basis of, or time of payment of, such taxes and other amounts resulting therefrom.
2. Agreement Scope
This Agreement is a master agreement that provides for the provision by FrontSpin to Customer of Services (as hereinafter defined), ordered by Customer hereunder, pursuant to Service Orders submitted by Customer and accepted by FrontSpin. Accordingly, in addition to any Services to be provided pursuant to any initial Service Order, the parties may subsequently enter into additional Service Orders under which additional Services may be provided by FrontSpin to Customer.
3. Ordering, Provision and Use of the Services
3.1. Service Orders. Customer may purchase Services by completing and executing or submitting, as applicable, a Service Order, and paying the applicable Services Fees. Each Service Order will set forth the Service Fees and type and description of Services being ordered. Each Service Order shall become binding only upon acceptance by FrontSpin, as evidenced though the granting of access to the Services in the case of electronic orders, or execution of physical orders.
3.2. Additional Services. Customer may order additional Services or additional quantities of previously ordered Services through the self-serve Order Form available in the Site. The Services Term for any such additional Services will be equal to the remainder of the then-current, last to expire Services Term applicable to Services previously ordered by Customer.
3.3. Provision of, and Right to Use, the Services. FrontSpin agrees to make available to Customer the Services set forth in an applicable Service Order, in accordance with the terms and conditions of this Agreement. FrontSpin shall provide Customer with any documentation applicable to the Services that FrontSpin makes generally available to its customers. FrontSpin hereby grants to Customer during the Service Term a non-exclusive, non-transferable right to have Authorized Users access and use the Services and the Documentation in accordance with this Agreement and any quantitative limitations set forth in the applicable Order Form. Customer shall be solely responsible for maintaining the confidentiality of Customer’s account information and passwords, and for any use of the Services made through Customer’s account.
3.4. Changes to Services. FrontSpin may, in its sole discretion, from time-to-time, without materially changing or degrading the existing features or functionality, modify, enhance and/
or expand the features and functionality of the Services at no additional cost to Customer (“No-Cost Feature”). FrontSpin will communicate to Customer the availability of No-Cost Features from time to time. FrontSpin may also, from time to time, make available additional features and/or functionalities for the Services which may, at Customer’s election, be added to the Services at an additional cost (“Cost Feature”). If Customer would like to add a Cost Feature, it may do so by submitting the appropriate Service Order.
3.5. Services Availability and Support.
(a) FrontSpin will use its commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, excluding planned downtime, and Force Majeure Events (as defined in Section 13.2 below).
(b) FrontSpin will use its commercially reasonable efforts to provide Customer with reasonable advance notice of planned downtime.
(c) FrontSpin may temporarily suspend access to the Services, as may be required in FrontSpin’s reasonable judgment to protect the Services and other customers from damage.
3.6. Customer Responsibilities. Customer agrees to (i) use the Services solely in accordance with this Agreement and all applicable laws rules and regulations, including without limitation any laws, rules and regulations regarding the transmission, processing and storage of any personal information, and to be responsible for the compliance of all Authorized Users with all of the foregoing, (ii) ensure and be responsible for the accuracy, completeness and legality of Customer Data, and (iii) notify FrontSpin promptly of any unauthorized access to the Services of which Customer becomes aware.
3.7. Electronic Recording. Without limiting the generality of Section 3.6(i), Customer acknowledges and understands that there are federal and state statutes governing the electronic recording of telephone conversations and that Customer assumes (i) full responsibility for use of the Services in compliance with such statutes and associated rules and regulations, and (ii) any and all liability for any use of the Services in violation of such statutes and associated rules and regulations. Customer represents and warrants that Customer is familiar with such statutes and associated rules and regulations, and agrees to carefully review its own circumstances when deciding whether to use the recording features of the Services and it is Customer’s responsibility to properly provide notice to all persons being recorded in connection with use of the Services. FrontSpin is not responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings or the use of the Services by Customer, whether legal or illegal, and Customer hereby agrees to indemnify and hold FrontSpin harmless for any claims, damages, fines, or penalties arising out of Customer’s failure to adhere to applicable electronic recording laws. Customer agrees that FrontSpin may, at its sole discretion, record any call between FrontSpin and Customer for quality control purposes.
3.8. No Access to Emergency Services. FrontSpin is not intended to support or carry emergency calls to any type of hospitals, law enforcement agencies, medical care unit or any other kind of Emergency Service. There are important differences between traditional telephone services and the Services. You acknowledge and agree that: (i) FrontSpin is not required to offer access to Emergency Services under any applicable local and/or national rules, regulations or law; (ii) it is Your responsibility to purchase, separately from the Services , traditional wireless (mobile) or fixed line telephone services that offer access to Emergency Services, and (iii) FrontSpin is not a replacement for Your primary telephone service.
3.9. Restrictions. Customer shall not (i) access or use the Services if Customer is a direct competitor of FrontSpin, (ii) access or use the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes, including, without limitation, for the purpose of designing and/or developing any competitive services, (iii) make the Services available to anyone other than an Authorized User, (iv) except as expressly permitted in this Agreement or contemplated by the Documentation, sell, resell, rent, lease, offer any time sharing arrangement, service bureau or any service based upon, the Services, (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (vi) attempt to gain unauthorized access to the Services or any associated systems or networks or (vii) modify, make derivative works of, disassemble, decompile or reverse engineer the Services or any component thereof.
3.10. Trial Use of the Services. If Customer registers for a free trial, subject to the terms and conditions of this Agreement, FrontSpin grants to customer, on a trial basis (“Trial Term”) free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any purchased Service Order executed or submitted by Customer for such Service(s), solely for Customer’s internal business operations, a non-exclusive, non-transferable right to have Authorized Users access and use the Services and the Documentation in accordance with this Agreement and any quantitative limitations set forth in the applicable Order Form. For the avoidance of doubt, Customer understands and agrees that upon the expiration of the Trial Term, Customer’s right to access and use the Services will terminate, unless Customer enters into a new Services Order or FrontSpin agrees to extend the Trial Term.
4. Fees, Payment and Taxes
4.1. Fees, Invoices and Payment.
(a) With the exception of any free use of the Services during a Trial Term, Customer is required to pay a Services Fee for the right to access and use Services. Customer agrees to pay FrontSpin the Services Fees in accordance with the applicable Service Order.
(b) If Customer provides FrontSpin with a credit card or ACH account information, FrontSpin will charge such credit card or ACH on a periodic basis as set forth in the applicable Service Order. Otherwise, FrontSpin will invoice Customer in advance for Services Fees set forth the applicable Service Order, on the schedule set forth therein. Any charges that are based on the amount of usage of the Services are billed to your credit card or ACH account, or invoiced, monthly, in arrears. Unless otherwise provided in a Service Order, upon receipt of an approved Service Order from Customer, FrontSpin will issue to Customer an initial invoice for the Service Fees and any other fees as detailed in the Service Order. Customer agrees to pay, either by check or EFT (initiated solely by Customer), invoices within thirty (30) days of Customer’s receipt of each invoice.
(c) If Customer, in good faith, disputes all or any portion of an invoice, Customer will, on or before the due date of such invoice (i) pay all undisputed amounts and (ii) provide FrontSpin with written notice of the details of the billing dispute, together with all supporting documentation. Customer waives any right to dispute all or any portion of a particular invoice if it does not comply with the preceding sentence. The Parties agree to work diligently and in good faith to resolve all billing disputes. Any disputed amount found to be properly owed to FrontSpin shall be paid within five (5) business days following resolution of the dispute, together with the applicable late-payment interest fee on such amount accrued from the original due date for such amount.
(d) Customer agrees, and shall remain obligated, to pay the Service Fees for the entire Service Term, which is non-cancellable, and that once paid, all Services Fees are non-refundable.
(e) FrontSpin reserves the right to charge interest at the lower of 1.5% per month or the highest rate permitted by law on any payment not received when due. FrontSpin may suspend the Services, if Customer’s payment of Services Fees is delinquent. Additionally, FrontSpin is entitled to recover any reasonable sums expended in connection with the collection of Services Fees or other amounts not paid when due, including reasonable attorneys’ fees.
4.2. Taxes. The Services Fees are exclusive of any Taxes. Customer shall be solely responsible for paying all Taxes associated with or arising from the purchase or use of the Services and for which FrontSpin is responsible to collect as interpreted by the appropriate taxing authorities. Customer shall not be responsible for any taxes assessed on the net income of FrontSpin.
4.3. Prices Upon Renewal. Upon renewal of any Service Term, the prices charged Customer for access to and use of the Services will be at FrontSpin’s then-current rates.
5. FrontSpin Policies
5.1. Customer’s Adherence; Portal Notice. The Services shall at all times be used in full compliance with (i) the FrontSpin Acceptable Use Policy as described in Section 5.2 of this Agreement (the “FrontSpin AUP”), and (ii) FrontSpin’s Privacy Policy, as described in Section 5.3 of this Agreement (the “FrontSpin Privacy Rules” and, together with the FrontSpin AUP, the “FrontSpin Policies”), as each such FrontSpin Policy may be amended from time to time by FrontSpin, effective upon written notice to the Customer. Customer agrees to be bound by the FrontSpin Policies, and the FrontSpin Policies, as the same may be amended from time to time, are hereby incorporated into this Agreement by this reference. For avoidance of doubt, Customer shall be liable hereunder (and shall be subject to FrontSpin’s termination rights hereunder and under the FrontSpin Policies) for any use of the Services by its Authorized Users in contravention of this Agreement, including the FrontSpin Policies. FrontSpin may occasionally make amendments to FrontSpin policies. Customers are encouraged to regularly review policies for changes, although any failure by FrontSpin to post such notice shall not, in any way, delay the effectiveness of any such amendment or Customer’s obligation hereunder to abide by it as of its effective date.
5.2. Acceptable Use Policy. Customer shall not, and shall not permit any third party, including Authorized Users to use the Services to store or send: (i) spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) harassing, infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) use the Services to store or transmit computer viruses, worms, time bombs, Trojan horses and other harmful or malicious code, routines, files, scripts, agents or programs; or (iv) impersonate any person or entity, including, but not limited to a FrontSpin employee, contractor or agent.
Customer is responsible for reviewing Authorized User lists and access controls at regular intervals and to delete and/or change access as necessary to prohibit unauthorized access. If any Authorized User stops working for Customer, Customer must immediately terminate that person’s access to its account and any FrontSpin Service. Customer will be responsible for any and all actions taken using its and its users’ accounts, passwords or access credentials.
5.3. Privacy Rules. As between Customer and FrontSpin, Customer shall have sole responsibility for ensuring that its use of the Services to access, manage and manipulate personally identifiable information (“PII”) complies with any and all laws, rules, and regulations applicable thereto. Without limiting the generality of the foregoing, Customer shall comply with all applicable laws, regulations, privacy guidelines and agreements governing the collection and use of all PII, including without limitation the Gramm-Leach-Bliley Act, PCI, TCPA and HIPPA (collectively, the “Privacy Rules”).
5.4. GDPR Indemnification. By using FrontSpin’s Services, you agree to indemnify FrontSpin for any legal responsibility and against any claims regarding your GDPR compliance. FrontSpin attests that we comply with GDPR as a Data Processor, but does not and cannot ensure your compliance as a Data Controller. Customer is solely responsible for the User Data. You hereby represent and warrant that the User Data, your provision of the User Data, and Our use and disclosure of the User Data in accordance with these Terms (including FrontSpin’s Privacy Policy), does not violate any third-party rights or any laws, regulations, or obligations imposed by GDPR.
5.5. Preventative or Corrective Actions. Customer acknowledges that each FrontSpin Policy sets forth a wide array of preventative or corrective actions that FrontSpin is entitled to take upon becoming aware of any failure by Customer to adhere to such FrontSpin Policy, including without limitation, actions that may result in a suspension or termination of all or part of the Services. However, notwithstanding the foregoing, FrontSpin will, to the extent it determines (in its sole discretion) that such actions are practicable and legally permissible, (i) attempt to resolve any failure to adhere to a FrontSpin Policy by Customer with Customer prior to taking any allowed preventative or corrective action and (ii) with or without any such prior resolution attempts, notify Customer prior to taking any allowed preventative or corrective action.
6. Term and Termination
6.1. Service Term. The Service Term applicable to the Services identified on a Service Order shall be set forth thereon, and shall commence upon the date set forth in the applicable Service Order. Thereafter, the Service Term shall automatically renew for periods of time equal to the initial Service Term set forth on the applicable Service Order, unless either party provides the other party with written notice of its intent not to renew at least thirty (30) days in advance of the expiration of the then-current Service Term.
6.2. Term of Agreement. This Agreement will commence upon the Effective Date, and shall, unless earlier terminated in accordance with Section 6.3 below, continue in force and effect until the date of expiration of the last to expire Service Term.
6.3. Termination for Cause. Either party may terminate this Agreement by written notice to the other party if (i) the other party is in material breach of its obligations under this Agreement and such breach is not cured within thirty (30) days after written notice thereof from the non-breaching party or (ii) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, which is not dismissed within sixty (60) days. Notwithstanding the foregoing, FrontSpin may immediately and without notice to Customer suspend Customer’s access to the Services and/or terminate this Agreement for violation by Customer of Sections 5.2 or 5.3 of this Agreement.
6.4. Customer Data. Upon request by Customer within thirty (30) days of any termination or expiration of this Agreement, and subject to its standard fees for such services, FrontSpin will provide Customer with an electronic copy of all Customer Data under FrontSpin’s control. After that 30-day period, FrontSpin will have no obligation to maintain or provide Customer Data, and may thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
7. Intellectual Property Rights
7.1. Services. As between Customer and FrontSpin, FrontSpin retains all right title and interest in and to the Services, including all intellectual property rights therein and thereto, and Customer acquires no rights with respect to the Services, by implication or otherwise, except for those expressly granted in this Agreement.
7.2. Customer Data.
(a) As
between Customer and FrontSpin, Customer retains all right title and interest in and to the Customer Data, including all intellectual property rights therein and thereto, and FrontSpin acquires no rights with respect to the Customer Data, by implication or otherwise, except for those rights expressly granted in this Section 7.2(a). Customer hereby grants to FrontSpin, a non-exclusive, worldwide, perpetual, royalty-free, right and license (including the right to authorize and grant sublicenses) to use, store, reproduce, distribute and display the Customer Data, in connection with the provision of the Services, and for the improvement and operation (“Ancillary Use”) of the Services for the benefit of FrontSpin’s customers and statistical, analytical or other aggregate use, provided that FrontSpin’s use of any Customer Data for any Ancillary Use renders the Customer Data anonymous.
(b) Customer represents and warrants to FrontSpin that Customer has all rights, consents and authority necessary to provide to FrontSpin the Customer Data, and to grant to FrontSpin the rights granted in the Customer Data in Section 7.2(a).
7.3. Suggestions. Customer hereby grants to FrontSpin a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback related to the Services that is provided by Customer and/or its Authorized Users. Customer is under no obligation to provide any such feedback, suggestions or requests.
7.4. Use of Customer Name. Customer agrees that FrontSpin may use Customer’s name and logo in marketing materials and on FrontSpin’s website to identify Customer as a customer of FrontSpin, and as a part of a general list of FrontSpin customers.
8. Confidential Information
8.1. Confidential Information. The parties acknowledge that, in the course of performing this Agreement, they may obtain information relating to products (such as goods, services, and software) or services of the other party, or relating to the parties themselves, which is of a confidential and proprietary nature (“Confidential Information”). Confidential Information includes the Services and Customer Data and all communications concerning either party’s business and marketing strategies including but not limited to employee and customer lists, customer profiles, project plans, design documents, product strategies and pricing data, research, advertising plans, leads and sources of supply, development activities, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics, intellectual property, and other technical plans and other information of the parties which by its nature can be reasonably expected to be proprietary and confidential, whether it is presented in oral, printed, written, graphic or photographic or other tangible form (including information received, stored or transmitted electronically) even though specific designation as Confidential Information has not been made, and any information provided by FrontSpin to Customer and/or Authorized Users in connection with support or warranty obligations under this Agreement.
8.2. Non-use and Non-disclosure. The parties shall 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 not use such Confidential Information other than as necessary to carry out its duties under this Agreement, nor shall either party disclose any such Confidential Information to third parties without the other party’s prior written consent.
8.3. Non-Applicability. The obligations of confidentiality with respect to Confidential Information shall not include information which the receiving party can demonstrate (i) is or becomes generally available to the public through no disclosure in breach of this Agreement; (ii) prior to disclosure hereunder, was already in the receiving party’s possession without restriction; (iii) subsequent to disclosure hereunder, is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; or (iv) was developed by the receiving party without use of the Confidential Information of the other party.
8.4. Disclosure Required by Law. Notwithstanding anything to the contrary herein, each party may comply with an order from a court or other governmental body of competent jurisdiction and disclose the other party’s Confidential Information in compliance with that order only if such party (i) unless prohibited by law, gives the other party prior written notice of such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party notice of such disclosure promptly after complying with that order and (ii) reasonably cooperates with the other party, at the other party’s cost and expense, in seeking a protective order, confidential treatment, or taking other measures to oppose or limit such disclosure. Each party shall not release any more of the other party’s Confidential Information than is reasonably necessary to comply with an applicable order.
9. Limited Warranty and Disclaimer
9.1. Limited Warranty and Service Level Agreement. FrontSpin warrants to Customer that the Services will be performed in a professional and workmanlike manner in accordance with industry standards. FrontSpin’s sole obligation, and Customer’s exclusive remedy, for any breach of the foregoing warranty, shall be the re-performance of the applicable Services at FrontSpin’s cost and expense.
9.2. Disclaimer. CUSTOMER UNDERSTANDS AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1 ABOVE, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” FRONTSPIN EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FRONTSPIN MAKES NO WARRANTY OR REPRESENTATION REGARDING THE SERVICES, ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH THE SERVICES, OR THAT THE SERVICES WILL MEET ANY CUSTOMER REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. Because some states and jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to Customer. In that event, such warranties are limited to the minimum warranty scope and period allowed by applicable law.
10. Limitation of Liability
EXCEPT WITH RESPECT TO A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, OR FOR ANY DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES, OR ANY OTHER PECUNIARY LOSS, INCLUDING BUT NOT LIMITED TO CLAIMS ARISING OUT OF, OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER ARISING
IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FRONTSPIN’S MAXIMUM, CUMULATIVE LIABILITY AND SUBSCRIBER’S EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE SERVICES FEES ACTUALLY PAID BY CUSTOMER IN THE PREVIOUS THREE (3) MONTHS UNDER THIS AGREEMENT, EVEN IF ANY REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
11. Indemnification
Customer shall, at its expense, defend or at its option settle, any claim, suit or action made or brought against FrontSpin by a third party (i) alleging that any Customer Data or other content, material or information as provided by Customer to FrontSpin, when used in accordance with this Agreement, infringes or misappropriates any intellectual property right of a third party and/or (ii) arising out of or related to Customer’s and/or its Authorized Users’ breach of this Agreement or any unauthorized use of the Services or any PII. Customer shall pay any settlement of such Claim, or indemnify FrontSpin for any damages finally awarded against FrontSpin, in connection with any such Claim; provided, that FrontSpin (a) promptly gives Customer written notice of the Claim; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally releases FrontSpin of all liability); and (c) provides to Customer all reasonable assistance, at Customer’s expense.
12. Representations and warranties
12.1. Organization and Authority of Customer. Customer is duly organized and validly existing under the laws of its state of incorporation or organization. The execution, delivery and performance by Customer of this Agreement are within the corporate powers of Customer and, have been duly authorized by all necessary corporate action on the part of Customer. This Agreement constitutes a valid and binding agreement enforceable in accordance with its terms.
12.2. Organization and Authority of FrontSpin . FrontSpin is duly organized and validly existing under the laws of its state of incorporation or organization. The execution, delivery and performance by FrontSpin of this Agreement are within the corporate powers of FrontSpin and, have been duly authorized by all necessary corporate action on the part of FrontSpin. This Agreement constitutes a valid and binding agreement of FrontSpin enforceable in accordance with its terms.
13. General
13.1. Assignment. Neither party may assign or delegate their respective obligations under this Agreement either in whole or in part, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign their rights and obligations under this Agreement to an Affiliate, or to a successor in interest as the result of a merger, consolidation, acquisition or the sale of all or substantially all of the assets of the assigning party.
13.2. Force Majeure. Except for Customer’s obligation to pay for the Services, neither party will be responsible for failure of performance due to causes beyond its control (each a “Force Majeure Event”). Force Majeure Events include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
13.3. Governing Law. This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. All suits hereunder will be brought solely in Federal Court for the Northern District of California, or if that court lacks subject matter jurisdiction, in any California State Court located in San Francisco, California. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. A breach by either party of Section 7 may cause irreparable harm for which the non-breaching party shall be entitled to seek injunctive relief without the requirement of posting a bond or surety.
13.4. Notices. All notices under this Agreement, including notices of address change, shall be in writing and shall be deemed to have been given when sent by registered mail, return receipt requested, or by recognized, national overnight express mail, to the addresses set forth on the signature page, with a copy to Legal Department.
13.5. Relationship of the Parties. The parties to this Agreement are independent contractors, and nothing in this Agreement shall be deemed to create any partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.6. Survival. The payment obligations of Customer under Section 4, as well as Sections 3.7, 3.8, 4.2, 6.4, 7, 8, 9, 10, 11, 12 and 13 of this Agreement shall survive any termination or expiration of this Agreement.
13.7. Waiver and Severability. The waiver of any one breach, default or right granted under this Agreement will not constitute the waiver of any subsequent breach, default or right granted. Any provision of this Agreement held to be illegal or unenforceable will be deemed amended to conform to applicable laws or regulations, or if it cannot be so amended without materially altering the intention of the parties, it will be stricken and the remainder of this Agreement will continue in full force and effect.
13.8. U.S. Export Law. Customer acknowledges that the Services are subject to U.S. export control laws and regulations. Customer represents that it is not a citizen of an embargoed country or prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists. Customer will not use, export or allow a third party to use or export the Services in any manner that would violate applicable law, including but not limited to applicable export control laws and regulation.
13.9. Entire Agreement. This Agreement and any Service Orders entered into hereunder by the parties (all of which are hereby incorporated herein by this reference), along with any valid amendments hereto and any documents incorporated herein by reference, completely and exclusively state the entire agreement of the parties regarding the subject matter herein, and supersedes, and its terms govern, all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter, and any subsequent orders for Services that are placed by Customer during the term of this Agreement. Furthermore, the parties hereby expressly acknowledge and agree that if Customer issues any
purchase orders or similar documents in connection with the purchase of or subscription to any Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms. By entering into this Agreement, whether prior to or following receipt of Customer’s purchase order or any similar document, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this Agreement, and FrontSpin’s performance of this Agreement shall not amount to: (i) an acceptance by conduct of any terms set out or referred to in the purchase order or similar document; (ii) an amendment of this Agreement, nor (iii) an agreement to amend this Agreement. This Agreement shall not be modified except by a subsequently dated, written amendment that expressly amends this Agreement and which is signed on behalf of FrontSpin and Customer by their duly authorized representatives.