Sprile Terms of Service
Last updated: October 10, 2014
1. Provision of Product. Sprile will provide Customer with access to its Platform as a Service system that facilitates the collection, sharing and management of data in accordance with terms and conditions of this Agreement and the specific product offering set forth on the Order Form executed by the parties in connection with this Agreement, and any software upgrades and updates to the same made available by Sprile from time to time (the “Product”). In order to use the Product, Customer is responsible at Customer’s own expense for providing its own access to the Internet through devices that access Web-based content, and for paying any fees associated with such access.
2. License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the Order Form, Sprile hereby grants to Customer a non-exclusive, non-transferable, revocable license for Customer’s Users (as defined below) to access and use the Product solely for Customer’s business purposes and solely for the specific product offering indicated on the Order Form. A “User” shall mean an employee, or individuals engaged as contractors or customers of Customer. This license is restricted to use by Customer and its Users and does not include the right to use the Product or any Sprile Technology (as hereinafter defined) on behalf of any third party or the right to permit any non-User to access or use the Product. Customer also agrees to be bound by any further restrictions set forth on the Order Form. All rights not expressly granted to Customer are reserved by Sprile and its licensors. There are no implied rights.
3. Sprile Technology and Cloud Hosting. Sprile shall host the application software related to the Product and certain Sprile Technology (as defined below) remotely with a reputable third party with published policies, currently Microsoft Azure and Amazon AWS and use such third party’s server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs for delivery of the Product (such third party, a “Cloud Provider”, and such services, the “Cloud Provider Services”). For purposes of this Agreement, “Sprile Technology” means all of Sprile’s proprietary technology (including software, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Sprile in providing the Product. Customer acknowledges that the Product is currently hosted by the Cloud Provider, but that Sprile may choose to use some other provider at any time. Customer’s use of the Product and Sprile Technology shall be subject to any applicable restrictions of the Cloud Provider and the Cloud Provider Services, including the Cloud Provider’s Acceptable Use Policy and other policies available for review at: http://www.windowsazure.com/en-us/support/legal/ and http://aws.amazon.com/legal/ . Notwithstanding any other provision of this Agreement, Customer acknowledges that Sprile shall not be liable for any problems, failures, defects or errors with the Product or Sprile Technology, to the extent that they are caused by the Cloud Provider or the Cloud Provider Services. Customer acknowledges the fees payable for the Product reflect the fact that Sprile is not responsible for the acts or omissions of the Cloud Provider, and that Sprile could not afford to provide the Product if it were responsible for the acts or omissions of the Cloud Provider.
4. Downtime. Subject to the terms and conditions of this Agreement, Sprile shall use commercially reasonable efforts to provide access to the Product for twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement. Customer agrees that from time to time the Product may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Sprile may undertake from time to time; or (iii) causes beyond the control of Sprile or which are not reasonably foreseeable by Sprile, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures, or failures or issues experienced by the Cloud Provider or by Cloud Provider Services independent of and not related to the Product or Sprile (collectively “Downtime”). Sprile shall use commercially reasonable efforts to provide twenty-four (24) hour advance notice to Customer in the event of any scheduled Downtime. Sprile shall have no obligation during performance of such operations to mirror Customer Data on any other server or to transfer Customer Data to any other server. Sprile shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Product in connection with Downtime, whether scheduled or not.
5. Ownership.
(a) Product and Sprile Technology. Customer acknowledges and agrees that (i) all right, title and interest in and to the Sprile Technology and the Product and all derivatives thereof (including any and all attachments, copyrights, trade secret rights, trademarks, trade names and other proprietary rights in embodied therein or associated therewith) are and shall remain Sprile’s or its licensors’, and this agreement in no way conveys any right or interest in the Sprile Technology or the Product other than the limited license to use the product in accordance herewith, and (ii) the Sprile Technology and the Product of are works protected by copyright, trade secret and other proprietary rights and laws.
(b) Customer Data. Customer owns all right, title and interest in all data created and uploaded into the system by Customer (“Customer Data”). Nothing in this Agreement shall be construed to grant Sprile any rights in Customer Data beyond those expressly provided herein. Sprile will not view the contents of files constituting Customer Data (“Customer Files”) without Customer’s prior express written consent. Customer is solely responsible for Customer Data and agrees that, to the extent within its control, Customer will ensure that Customer Data complies with applicable laws and regulations.
(c) Customer Meta-Data. Data derived from Customer Files (“Customer Meta-Data”), constitutes Customer Data. By way of example, Customer Meta-Data includes file names, modification dates, and audit trails. Customer grants Sprile the limited right to view, collect, and use Customer Meta-Data for the purposes of performing Sprile’s obligations under this Agreement.
(d) Non-Identifiable Aggregated Data. Sprile may anonymize Customer Meta-Data and aggregate it with other data not constituting Customer Data (“Non-Identifiable Aggregated Data”) for Sprile’s business purposes, including without limitation for analyzing customer needs and improving Sprile’s services. Sprile owns all right, title and interest in such Non-Identifiable Aggregated Data.
6. Restrictions. Unauthorized use, resale or commercial exploitation of the Product in any way is expressly prohibited. Without Sprile’s express prior written consent in each instance, Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Sprile Technology, or access the Product in order to build a competitive product or service or copy any ideas, features or functions of the Product. Except as expressly permitted in this Agreement, Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign the Product or the Sprile Technology to any third-party. Customer shall take all measures necessary to ensure compliance by all of its Users with all terms and conditions of this Agreement, and Customer shall be responsible for all acts and omissions of such Users in connection with this Agreement. Customer shall keep all passwords safe and secure, and shall be responsible for all use of the Product using passwords issued to Customer and its Users. In addition to Sprile’s other remedies hereunder, Sprile reserves the right upon ten (10) days prior written notice to Customer to terminate any User’s right to access the Product if Sprile can reasonably demonstrate to Customer that such User has materially violated the restrictions contained in this Agreement.
7. Payment of Fees; Taxes. Customer shall pay to Sprile the fees specified and in accordance with the schedule set forth on the applicable Order Form. Customer acknowledges that if the number of Customer’s Users increases at any time during the term of this Agreement, the fees payable shall be automatically adjusted to the fees payable for such number of Users, at the rates specified on the Order Form (or, if not so specified, at Sprile’s standard rates). If Customer has pre-paid fees, the incremental fees due to the higher number of Users shall remain payable. Invoices are due thirty days from date of invoice. Customer agrees to pay a late charge of one and half percent (1 1/2%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts not paid when due. Amounts set forth on the Order Form exclude taxes. Customer will be solely responsible for, and will promptly pay, all taxes of any kind (including but not limited to sales and use taxes) associated with this Agreement, the Products, or Customer’s and its Users access to the Product, except for taxes based on Sprile’s net income. Customer agrees to pay reasonable attorneys’ fees and court costs incurred by Sprile to collect any unpaid amounts owed by Customer.
8. Termination and Suspension. This Agreement takes effect on the Order Effective Date and shall continue until completion of the period of performance set forth in the Order Form (or any extension thereof agreed by the parties) (the “Order Term”). On completion of the Order Term and unless either party gives notice of non-renewal at least thirty (30) days before the completion of the Order Term, the Order Term and this Agreement will automatically renew for additional terms of 12 months each at Sprile’s then-current prices. Notwithstanding the foregoing, each party will have the right to terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. Customer may terminate this Agreement on sixty (60) days notice to Sprile. Sprile may terminate this Agreement immediately if Customer becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. In addition to the foregoing, Sprile also reserves the right, in its sole and absolute discretion, to suspend providing the Product and Customer agrees that Sprile may shut off and suspend Customer’s access to the Product at any time, without having to terminate this Agreement, if Customer is more than thirty (30) days late with respect to any payments due hereunder. Upon such suspension, Customer shall still be liable for all payments that have accrued prior to the date of suspension. Sprile will not be obligated to restore access to the Product until Customer has paid all fees owed to Sprile.
9. After Termination. Upon any termination or expiration of this Agreement: (i) all licenses and rights granted hereunder shall terminate and Sprile shall no longer provide access to the Product to Customer and (ii) Customer shall cease and cause its Users to cease using the Product. On termination of this Agreement, Sprile shall delete all Customer Data from the Product system within 30 days and certify such deletion to Customer. Upon termination of this Agreement by Sprile due to Customer’s uncured breach, in addition to any other remedies Sprile may have for such breach, Customer shall pay Sprile for all fees that had accrued prior to the termination date. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Sections 3, 6, 5, 8 - 17 and all accrued payment obligations, will survive termination or expiration of this Agreement.
10. Confidentiality. Each Party agrees that during the course of this Agreement, information that is confidential may be disclosed to the other Party, including, but not limited to Sprile’s Technology, Customer Data, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, projections, and marketing data ("Confidential Information"). Confidential Information shall not include information that the receiving Party can demonstrate (i) is in the public domain at the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving Party, (ii) was known to the receiving Party as of the time of its disclosure, (iii) is independently developed by the receiving Party, or (iv) is subsequently learned from a third party not under a confidentiality obligation to the providing Party. Except as provided for in this Agreement, each Party shall not make any disclosure of the Confidential Information to anyone other than its employees, contractors or Users who have a need to know in connection with this Agreement. Each Party shall notify its employees, contractors and Users of their confidentiality obligations with respect to the Confidential Information and shall require its employees, contractors and Users to comply with these obligations. The confidentiality obligations of each Party and its employees and Users shall survive indefinitely beyond the expiration or termination of this Agreement. Sprile shall have the right to list Client on its client lists, and may announce the customer relationship on its website or in a press release provided that Sprile obtains Client’s prior approval of the wording of the announcement or release.
11. Indemnification.
(a) Sprile shall, at its expense, defend and indemnify Customer against any third party claim brought against Customer to the extent based on a claim that the Product infringes any copyright or trade secret of any third party. Sprile shall pay any award against Customer, or settlement entered into on Customer’s behalf, based on such infringement, but only if Customer notifies Sprile promptly in writing of the claim, provides reasonable assistance in connection with the defense and settlement thereof, and permits Sprile to control the defense and settlement thereof. If a claim of infringement or misappropriation occurs, or if Sprile determines that a claim is likely to occur, Sprile shall have the right, in its sole discretion, to either: (i) procure for Customer the right or license to continue to use the Product free of the infringement claim; or (ii) replace or modify the Product to make it non-infringing. If these remedies are not reasonably available to Sprile, Sprile may, at its option, terminate this Agreement and return to Customer any pre-paid unused fees for the Product. Despite the provisions of this Section, Sprile has no obligation with respect to any claim of infringement or misappropriation that is based upon or arises out of (x) Customer’s use of the Product other than in accordance with the applicable documentation or Sprile’s written directions or policies; or (y) any third party data or content or any Customer Data. THIS SECTION STATES THE ENTIRE LIABILITY OF SPRILE AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY INFRINGEMENT BY THE PRODUCT.
(b) Customer shall defend, indemnify, and hold Sprile harmless from and against any suit, proceeding, assertion, damages, cost, liability, penalties, fines and expenses (including court costs and reasonable attorneys’ fees) incurred as a result of claims against Sprile and its employees and affiliates arising from or connected with (i) any claim that the Customer Data infringes, violates or misappropriates any third party intellectual property or proprietary right, and/or (ii) any breach of any representation, covenant or warranty set forth in this Agreement by Customer.
(c) The indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party sole control of the defense of any claim, suit or proceeding and all negotiations for settlement.
(d) The limitations in Section 12(a) do not apply to the indemnities set out in this Section 11.
12. Limited Warranty and Limitation of Liability
(a) Sprile warrants that it will provide the Product in a competent and workmanlike manner. Sprile does not warrant that it will be able to correct or reported defects or that use of the Product will be uninterrupted or error-free. Sprile makes no warranty regarding any features or products provided by any other third party and retains the right to modify its products and services at its discretion provided that doing so does not have a material adverse impact on the Product. THE EXPRESS WARRANTY SET FORTH IN THIS SECTION 12(a) IS THE ONLY WARRANTY GIVEN BY SPRILE WITH RESPECT TO THE PRODUCT FURNISHED HEREUNDER. SPRILE MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND SPECIFICALLY DISCLAIMS THE WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
(b) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, TORT OR CONSEQUENTIAL DAMAGES (INCLUDING ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCT OR SERVICES FURNISHED HEREUNDER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY HEREUNDER EXCEED THE FEES PAID BY CUSTOMER TO SPRILE WITHIN THE PAST TWELVE (12) MONTHS.
13. US Govt. Restricted Rights. If Customer is an agency or contractor of the United States Government, Customer acknowledges and agrees that (a) the Product was developed entirely at private expense, (b) the Product and Services in all respects constitute proprietary data belonging solely to Sprile, (c) the Software and Services are not in the public domain, and (d) the Software is “Commercial Computer Software” as defined in sub-paragraph (a)(1) of DFAR Section 252.227-7014 or FAR Part 12.212.
14. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successor and assigns. Neither party shall, without the prior written consent of the other party, assign or transfer this Agreement, in whole or in part, provided that either party may assign this Agreement in its entirety, without consent, to any successor to its business, including in connection with any merger, consolidation, and any sale of all or substantially all of its assets or any other transaction in which more than fifty percent (50%) of the party’s voting securities are transferred provided that such successor agrees in writing to be bound by the terms of this Agreement.
15. Entire Agreement. This Agreement, including the Order Form, contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Notwithstanding any course of dealings between the parties at any time, no purchase order, invoice or similar document shall be construed to modify any of the terms of this Agreement, unless the document is (a) signed by both parties and (b) expressly refers to all provisions of this Agreement that the parties intend to modify by such document. This Agreement may be executed in multiple counterparts, all of which, taken together, shall constitute one and the same instrument. Delivery of an executed signature page by facsimile shall be deemed effective as delivery of a manually-executed counterpart. Any conflict between the terms set forth on an Order Form and this Agreement shall be controlled by the terms and conditions set forth in this Agreement.
16. Notice. Any notice required or permitted hereunder shall be delivered to the contact person listed on the Order Form as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery when receipt is confirmed orally. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this Section.
17. General. This Agreement shall be interpreted according to the laws of the Commonwealth of Massachusetts without regard to or application of choice-of-law rules or principles. In the event of any conflict between this Agreement and Sprile’s online Terms and Conditions of Use, this Agreement shall prevail. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches and the waiver of any breach shall not act as a waiver of subsequent breaches. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect. The parties further agree that in the event such provision is an essential part of this Agreement, they will begin negotiations for a replacement provision. Neither this Agreement nor the Order Form (and other schedules and exhibits thereto) may be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. This Agreement incorporates Sprile’s Privacy Policy, which is available here: www.sprile.com . Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. This Agreement shall be construed and interpreted, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof.
1. Provision of Product. Sprile will provide Customer with access to its Platform as a Service system that facilitates the collection, sharing and management of data in accordance with terms and conditions of this Agreement and the specific product offering set forth on the Order Form executed by the parties in connection with this Agreement, and any software upgrades and updates to the same made available by Sprile from time to time (the “Product”). In order to use the Product, Customer is responsible at Customer’s own expense for providing its own access to the Internet through devices that access Web-based content, and for paying any fees associated with such access.
2. License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the Order Form, Sprile hereby grants to Customer a non-exclusive, non-transferable, revocable license for Customer’s Users (as defined below) to access and use the Product solely for Customer’s business purposes and solely for the specific product offering indicated on the Order Form. A “User” shall mean an employee, or individuals engaged as contractors or customers of Customer. This license is restricted to use by Customer and its Users and does not include the right to use the Product or any Sprile Technology (as hereinafter defined) on behalf of any third party or the right to permit any non-User to access or use the Product. Customer also agrees to be bound by any further restrictions set forth on the Order Form. All rights not expressly granted to Customer are reserved by Sprile and its licensors. There are no implied rights.
3. Sprile Technology and Cloud Hosting. Sprile shall host the application software related to the Product and certain Sprile Technology (as defined below) remotely with a reputable third party with published policies, currently Microsoft Azure and Amazon AWS and use such third party’s server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs for delivery of the Product (such third party, a “Cloud Provider”, and such services, the “Cloud Provider Services”). For purposes of this Agreement, “Sprile Technology” means all of Sprile’s proprietary technology (including software, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Sprile in providing the Product. Customer acknowledges that the Product is currently hosted by the Cloud Provider, but that Sprile may choose to use some other provider at any time. Customer’s use of the Product and Sprile Technology shall be subject to any applicable restrictions of the Cloud Provider and the Cloud Provider Services, including the Cloud Provider’s Acceptable Use Policy and other policies available for review at: http://www.windowsazure.com/en-us/support/legal/ and http://aws.amazon.com/legal/ . Notwithstanding any other provision of this Agreement, Customer acknowledges that Sprile shall not be liable for any problems, failures, defects or errors with the Product or Sprile Technology, to the extent that they are caused by the Cloud Provider or the Cloud Provider Services. Customer acknowledges the fees payable for the Product reflect the fact that Sprile is not responsible for the acts or omissions of the Cloud Provider, and that Sprile could not afford to provide the Product if it were responsible for the acts or omissions of the Cloud Provider.
4. Downtime. Subject to the terms and conditions of this Agreement, Sprile shall use commercially reasonable efforts to provide access to the Product for twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement. Customer agrees that from time to time the Product may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Sprile may undertake from time to time; or (iii) causes beyond the control of Sprile or which are not reasonably foreseeable by Sprile, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures, or failures or issues experienced by the Cloud Provider or by Cloud Provider Services independent of and not related to the Product or Sprile (collectively “Downtime”). Sprile shall use commercially reasonable efforts to provide twenty-four (24) hour advance notice to Customer in the event of any scheduled Downtime. Sprile shall have no obligation during performance of such operations to mirror Customer Data on any other server or to transfer Customer Data to any other server. Sprile shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Product in connection with Downtime, whether scheduled or not.
5. Ownership.
(a) Product and Sprile Technology. Customer acknowledges and agrees that (i) all right, title and interest in and to the Sprile Technology and the Product and all derivatives thereof (including any and all attachments, copyrights, trade secret rights, trademarks, trade names and other proprietary rights in embodied therein or associated therewith) are and shall remain Sprile’s or its licensors’, and this agreement in no way conveys any right or interest in the Sprile Technology or the Product other than the limited license to use the product in accordance herewith, and (ii) the Sprile Technology and the Product of are works protected by copyright, trade secret and other proprietary rights and laws.
(b) Customer Data. Customer owns all right, title and interest in all data created and uploaded into the system by Customer (“Customer Data”). Nothing in this Agreement shall be construed to grant Sprile any rights in Customer Data beyond those expressly provided herein. Sprile will not view the contents of files constituting Customer Data (“Customer Files”) without Customer’s prior express written consent. Customer is solely responsible for Customer Data and agrees that, to the extent within its control, Customer will ensure that Customer Data complies with applicable laws and regulations.
(c) Customer Meta-Data. Data derived from Customer Files (“Customer Meta-Data”), constitutes Customer Data. By way of example, Customer Meta-Data includes file names, modification dates, and audit trails. Customer grants Sprile the limited right to view, collect, and use Customer Meta-Data for the purposes of performing Sprile’s obligations under this Agreement.
(d) Non-Identifiable Aggregated Data. Sprile may anonymize Customer Meta-Data and aggregate it with other data not constituting Customer Data (“Non-Identifiable Aggregated Data”) for Sprile’s business purposes, including without limitation for analyzing customer needs and improving Sprile’s services. Sprile owns all right, title and interest in such Non-Identifiable Aggregated Data.
6. Restrictions. Unauthorized use, resale or commercial exploitation of the Product in any way is expressly prohibited. Without Sprile’s express prior written consent in each instance, Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Sprile Technology, or access the Product in order to build a competitive product or service or copy any ideas, features or functions of the Product. Except as expressly permitted in this Agreement, Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign the Product or the Sprile Technology to any third-party. Customer shall take all measures necessary to ensure compliance by all of its Users with all terms and conditions of this Agreement, and Customer shall be responsible for all acts and omissions of such Users in connection with this Agreement. Customer shall keep all passwords safe and secure, and shall be responsible for all use of the Product using passwords issued to Customer and its Users. In addition to Sprile’s other remedies hereunder, Sprile reserves the right upon ten (10) days prior written notice to Customer to terminate any User’s right to access the Product if Sprile can reasonably demonstrate to Customer that such User has materially violated the restrictions contained in this Agreement.
7. Payment of Fees; Taxes. Customer shall pay to Sprile the fees specified and in accordance with the schedule set forth on the applicable Order Form. Customer acknowledges that if the number of Customer’s Users increases at any time during the term of this Agreement, the fees payable shall be automatically adjusted to the fees payable for such number of Users, at the rates specified on the Order Form (or, if not so specified, at Sprile’s standard rates). If Customer has pre-paid fees, the incremental fees due to the higher number of Users shall remain payable. Invoices are due thirty days from date of invoice. Customer agrees to pay a late charge of one and half percent (1 1/2%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts not paid when due. Amounts set forth on the Order Form exclude taxes. Customer will be solely responsible for, and will promptly pay, all taxes of any kind (including but not limited to sales and use taxes) associated with this Agreement, the Products, or Customer’s and its Users access to the Product, except for taxes based on Sprile’s net income. Customer agrees to pay reasonable attorneys’ fees and court costs incurred by Sprile to collect any unpaid amounts owed by Customer.
8. Termination and Suspension. This Agreement takes effect on the Order Effective Date and shall continue until completion of the period of performance set forth in the Order Form (or any extension thereof agreed by the parties) (the “Order Term”). On completion of the Order Term and unless either party gives notice of non-renewal at least thirty (30) days before the completion of the Order Term, the Order Term and this Agreement will automatically renew for additional terms of 12 months each at Sprile’s then-current prices. Notwithstanding the foregoing, each party will have the right to terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. Customer may terminate this Agreement on sixty (60) days notice to Sprile. Sprile may terminate this Agreement immediately if Customer becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. In addition to the foregoing, Sprile also reserves the right, in its sole and absolute discretion, to suspend providing the Product and Customer agrees that Sprile may shut off and suspend Customer’s access to the Product at any time, without having to terminate this Agreement, if Customer is more than thirty (30) days late with respect to any payments due hereunder. Upon such suspension, Customer shall still be liable for all payments that have accrued prior to the date of suspension. Sprile will not be obligated to restore access to the Product until Customer has paid all fees owed to Sprile.
9. After Termination. Upon any termination or expiration of this Agreement: (i) all licenses and rights granted hereunder shall terminate and Sprile shall no longer provide access to the Product to Customer and (ii) Customer shall cease and cause its Users to cease using the Product. On termination of this Agreement, Sprile shall delete all Customer Data from the Product system within 30 days and certify such deletion to Customer. Upon termination of this Agreement by Sprile due to Customer’s uncured breach, in addition to any other remedies Sprile may have for such breach, Customer shall pay Sprile for all fees that had accrued prior to the termination date. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Sections 3, 6, 5, 8 - 17 and all accrued payment obligations, will survive termination or expiration of this Agreement.
10. Confidentiality. Each Party agrees that during the course of this Agreement, information that is confidential may be disclosed to the other Party, including, but not limited to Sprile’s Technology, Customer Data, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, projections, and marketing data ("Confidential Information"). Confidential Information shall not include information that the receiving Party can demonstrate (i) is in the public domain at the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving Party, (ii) was known to the receiving Party as of the time of its disclosure, (iii) is independently developed by the receiving Party, or (iv) is subsequently learned from a third party not under a confidentiality obligation to the providing Party. Except as provided for in this Agreement, each Party shall not make any disclosure of the Confidential Information to anyone other than its employees, contractors or Users who have a need to know in connection with this Agreement. Each Party shall notify its employees, contractors and Users of their confidentiality obligations with respect to the Confidential Information and shall require its employees, contractors and Users to comply with these obligations. The confidentiality obligations of each Party and its employees and Users shall survive indefinitely beyond the expiration or termination of this Agreement. Sprile shall have the right to list Client on its client lists, and may announce the customer relationship on its website or in a press release provided that Sprile obtains Client’s prior approval of the wording of the announcement or release.
11. Indemnification.
(a) Sprile shall, at its expense, defend and indemnify Customer against any third party claim brought against Customer to the extent based on a claim that the Product infringes any copyright or trade secret of any third party. Sprile shall pay any award against Customer, or settlement entered into on Customer’s behalf, based on such infringement, but only if Customer notifies Sprile promptly in writing of the claim, provides reasonable assistance in connection with the defense and settlement thereof, and permits Sprile to control the defense and settlement thereof. If a claim of infringement or misappropriation occurs, or if Sprile determines that a claim is likely to occur, Sprile shall have the right, in its sole discretion, to either: (i) procure for Customer the right or license to continue to use the Product free of the infringement claim; or (ii) replace or modify the Product to make it non-infringing. If these remedies are not reasonably available to Sprile, Sprile may, at its option, terminate this Agreement and return to Customer any pre-paid unused fees for the Product. Despite the provisions of this Section, Sprile has no obligation with respect to any claim of infringement or misappropriation that is based upon or arises out of (x) Customer’s use of the Product other than in accordance with the applicable documentation or Sprile’s written directions or policies; or (y) any third party data or content or any Customer Data. THIS SECTION STATES THE ENTIRE LIABILITY OF SPRILE AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY INFRINGEMENT BY THE PRODUCT.
(b) Customer shall defend, indemnify, and hold Sprile harmless from and against any suit, proceeding, assertion, damages, cost, liability, penalties, fines and expenses (including court costs and reasonable attorneys’ fees) incurred as a result of claims against Sprile and its employees and affiliates arising from or connected with (i) any claim that the Customer Data infringes, violates or misappropriates any third party intellectual property or proprietary right, and/or (ii) any breach of any representation, covenant or warranty set forth in this Agreement by Customer.
(c) The indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party sole control of the defense of any claim, suit or proceeding and all negotiations for settlement.
(d) The limitations in Section 12(a) do not apply to the indemnities set out in this Section 11.
12. Limited Warranty and Limitation of Liability
(a) Sprile warrants that it will provide the Product in a competent and workmanlike manner. Sprile does not warrant that it will be able to correct or reported defects or that use of the Product will be uninterrupted or error-free. Sprile makes no warranty regarding any features or products provided by any other third party and retains the right to modify its products and services at its discretion provided that doing so does not have a material adverse impact on the Product. THE EXPRESS WARRANTY SET FORTH IN THIS SECTION 12(a) IS THE ONLY WARRANTY GIVEN BY SPRILE WITH RESPECT TO THE PRODUCT FURNISHED HEREUNDER. SPRILE MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND SPECIFICALLY DISCLAIMS THE WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
(b) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, TORT OR CONSEQUENTIAL DAMAGES (INCLUDING ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCT OR SERVICES FURNISHED HEREUNDER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY HEREUNDER EXCEED THE FEES PAID BY CUSTOMER TO SPRILE WITHIN THE PAST TWELVE (12) MONTHS.
13. US Govt. Restricted Rights. If Customer is an agency or contractor of the United States Government, Customer acknowledges and agrees that (a) the Product was developed entirely at private expense, (b) the Product and Services in all respects constitute proprietary data belonging solely to Sprile, (c) the Software and Services are not in the public domain, and (d) the Software is “Commercial Computer Software” as defined in sub-paragraph (a)(1) of DFAR Section 252.227-7014 or FAR Part 12.212.
14. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successor and assigns. Neither party shall, without the prior written consent of the other party, assign or transfer this Agreement, in whole or in part, provided that either party may assign this Agreement in its entirety, without consent, to any successor to its business, including in connection with any merger, consolidation, and any sale of all or substantially all of its assets or any other transaction in which more than fifty percent (50%) of the party’s voting securities are transferred provided that such successor agrees in writing to be bound by the terms of this Agreement.
15. Entire Agreement. This Agreement, including the Order Form, contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Notwithstanding any course of dealings between the parties at any time, no purchase order, invoice or similar document shall be construed to modify any of the terms of this Agreement, unless the document is (a) signed by both parties and (b) expressly refers to all provisions of this Agreement that the parties intend to modify by such document. This Agreement may be executed in multiple counterparts, all of which, taken together, shall constitute one and the same instrument. Delivery of an executed signature page by facsimile shall be deemed effective as delivery of a manually-executed counterpart. Any conflict between the terms set forth on an Order Form and this Agreement shall be controlled by the terms and conditions set forth in this Agreement.
16. Notice. Any notice required or permitted hereunder shall be delivered to the contact person listed on the Order Form as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery when receipt is confirmed orally. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this Section.
17. General. This Agreement shall be interpreted according to the laws of the Commonwealth of Massachusetts without regard to or application of choice-of-law rules or principles. In the event of any conflict between this Agreement and Sprile’s online Terms and Conditions of Use, this Agreement shall prevail. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches and the waiver of any breach shall not act as a waiver of subsequent breaches. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect. The parties further agree that in the event such provision is an essential part of this Agreement, they will begin negotiations for a replacement provision. Neither this Agreement nor the Order Form (and other schedules and exhibits thereto) may be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. This Agreement incorporates Sprile’s Privacy Policy, which is available here: www.sprile.com . Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. This Agreement shall be construed and interpreted, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof.