PLATFORM TERMS OF SERVICE
This PLATFORM TERMS OF SERVICE (“Agreement”) is entered into by and between Spindle Technologies, Inc. (d/b/a Spindle AI) (“Spindle”), and Customer (defined below). Each of Spindle AI and Customer
is a “Party” and, together, the “Parties”.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR
ACCEPTANCE, USING THE SPINDLE PLATFORM (DEFINED BELOW), OR OTHERWISE
AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (A)
AGREE TO THIS AGREEMENT ON BEHALF OF YOURSELF AS AN INDIVIDUAL, UNLESS
YOU ARE USING THE SERVICES ON BEHALF OF AN ORGANIZATION, COMPANY, OR
OTHER LEGAL ENTITY, IN WHICH CASE YOU AGREE TO THIS AGREEMENT ON
BEHALF OF SUCH ENTITY FOR WHICH YOU ACT (“CUSTOMER”); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO
THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT
AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY
NOT USE ANY SERVICES. IF CUSTOMER AND SPINDLE ARE PARTIES TO A
SEPARATE WRITTEN AGREEMENT GRANTING CUSTOMER ACCESS TO AND USE OF THE
SPINDLE PLATFORM (A “CUSTOM PLATFORM AGREEMENT”), THEN THE TERMS OF THE CUSTOM PLATFORM AGREEMENT SHALL GOVERN SUCH
ACCESS AND USE.
1.
ACCESS AND RESTRICTIONS.
1.1 Access to Platform. Subject to the terms and conditions of this Agreement, Spindle hereby grants Customer a non-exclusive, non-transferable, revocable license to access and use Spindle’s proprietary software-as-a-service business analytics and financial planning and analysis platform, as may be updated from time-to-time during the Term (the “Spindle Platform”), together with any associated documentation made available to Customer by Spindle (“Documentation”), solely for Customer’s internal business and testing purposes.
1.2 User Accounts. If the Spindle Platform permits Customer to invite additional persons to use the Spindle Platform (each such individual, an “Active User”) by means of unique user accounts (each, a “User Account”), then such Active Users may access and use the Spindle Platform under the terms and conditions of this Agreement. Active Users may use the Spindle Platform solely for the benefit of Customer. Customer is liable for any act or omission of an Active User that, if undertaken by Customer, would be a breach of this Agreement, as well as all activities that occur under User Accounts associated with Customer. Customer will ensure that it assigns unique, distinct, and appropriate passwords or access tokens for each User Account, and will keep such passwords or tokens secure.
1.3 Restrictions. Customer will not, and will not permit any Active User or other third party to: (a) use the Spindle Platform to develop any competitive product, tool, or service; (b) use the Spindle Platform for benchmarking or performance testing of competing offerings; (c) rent, lease, or otherwise permit third parties other than Active Users to access or use the Spindle Platform or Documentation; (d) use the Spindle Platform to provide services to third parties (e.g., on a service bureau basis) without express written consent from Spindle; (e) decompile, disassemble, reverse-engineer, or otherwise attempt to derive or imitate the source code, algorithms, or architecture of the Spindle Platform, except to the extent expressly permitted by this Agreement; (f) copy, download, screenshot, or otherwise attempt to locally preserve outside the Spindle Platform any simulations, scenarios, derived data, or intelligent recommendations generated by the Spindle Platform; or (g) violate additional use limitations communicated to Customer by Spindle from time to time.
1.4 Ownership. Spindle retains all right, title, and interest, including all intellectual property rights, in and to the Spindle Platform and Documentation in any and all jurisdictions. Customer acknowledges that this Agreement is not a sale and does not transfer to Customer title or ownership of the Spindle Platform or Documentation. THE FOREGOING WILL NOT LIMIT CUSTOMER’S OWNERSHIP AND CONTROL OVER CUSTOMER DATA AS SET FORTH IN SECTION 2 BELOW.
Customer retains ownership of any data or content that Customer uploads to or otherwise provides to Spindle for use in the Spindle Platform (“Customer Data”). Customer hereby grants to Spindle a non-exclusive, worldwide, non-transferable (except as set forth in Section 10), sublicensable, fully paid-up, royalty-free license, solely during the Term, to create derivative works of and otherwise use, reproduce, reformat, display, and distribute Customer Data: (a) to provide the Spindle Platform to Customer; (b) to maintain, support, and improve the Spindle Platform for Customer, including by providing technical support to Customer; (c) to generate derived data and learnings that do not contain Customer Data in raw form (“Analytics and Improvement Data”); and (d) otherwise in accordance with Spindle’s Privacy Policy (available at spindle.ai/privacy). Analytics and Improvement Data is not Customer Data and nothing in this Agreement will limit Spindle’s right to use and exploit Analytics and Improvement Data for any purpose, including to provide, develop, and improve its products and services during and after the Term; provided, however, that Spindle will not, during or after the Term, disclose to any third party that Customer was the source of such Analytics and Improvement Data. Notwithstanding anything to the contrary, Customer Data does not include any replacements, additions, or modifications to the Spindle Platform created using the configuration tools made available to Customer by Spindle (“Configurations”), which Configurations are deemed part of the Spindle Platform.
4.1 Confidential Information. As used herein, “Confidential Information” means any information disclosed by either Party (the “Discloser”) to the other Party (the “Recipient”), directly or indirectly, in writing, orally, or by inspection of tangible objects (including documents), that is designated by the Discloser as confidential or proprietary, that should reasonably be understood to be confidential due to the nature of the information or circumstances of disclosure, or that is customarily considered confidential between business parties, including customer, product, financial, and strategic information. Confidential Information may also include information disclosed to the Discloser by third parties. All Feedback (as defined in Section 5) and the terms of this Agreement are deemed to be the Confidential Information of Spindle.
4.2 Exceptions. Confidential Information will not include any information that: (a) was publicly known or made generally available without a duty of confidentiality prior to the time of disclosure by the Discloser to the Recipient; (b) becomes publicly known or made generally available without a duty of confidentiality after disclosure by the Discloser to the Recipient through no wrongful action or inaction of the Recipient; (c) is in the rightful possession of the Recipient without confidentiality obligations at the time of disclosure by the Discloser to the Recipient as shown by the Recipient’s then-contemporaneous written files and records kept in the ordinary course of business; (d) is obtained by the Recipient from a third party without an accompanying duty of confidentiality and without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information, as shown by written records and other competent evidence prepared contemporaneously with such independent development.
4.3 Non-Use and Non-Disclosure. Each Party agrees not to disclose or use any Confidential Information of the other Party for any purpose other than to exercise its rights or perform its obligations under this Agreement. Each Party will safeguard the Confidential Information of the other Party against disclosure using the same measures it uses to protect its own Confidential Information, but in no event will either Party use less than reasonable care in safeguarding the Confidential Information of the other Party. Notwithstanding the foregoing, if a Party becomes legally compelled to disclose any Confidential Information of the other Party, other than pursuant to a confidentiality agreement, the compelled Party will provide the other Party prompt written notice, if legally permissible, and will use its best efforts to assist the other Party in seeking a protective order or another appropriate remedy. If the other Party fails to obtain a protective order or other appropriate remedy, the compelled Party will furnish only that portion of the other Party’s Confidential Information that it is legally compelled to disclose; provided that any Confidential Information so disclosed will maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
4.4 Remedy. If either Party breaches or threatens to breach the provisions of this Section 4, each Party agrees that the non-breaching Party will have no adequate remedy at law and is therefore entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
During and after the Term, Customer may provide Spindle with
feedback regarding the use, operation, functionality, and degree
of satisfaction with the Spindle Platform, including, but not
limited to, bug reports, reviews, suggestions for new features,
use cases, services, or products, and other data, ideas, or
information related to the Spindle Platform (collectively, “Feedback”). Customer hereby assigns to Spindle all right, title, and interest
in and to the Feedback, and Spindle is free to use the Feedback
without payment or restriction, except to the extent such Feedback
contains Customer Data.
Without limiting the foregoing, from time to time upon request
by Spindle, Customer agrees to work in good faith with Spindle
to arrange a feedback session attended by Customer personnel
who are Active Users and Spindle personnel, at a time
acceptable to both Parties. Topics for discussion during the
feedback session may include, without limitation, feedback
concerning the use, operation, and functionality of, and the
Active Users’ degree of satisfaction with, the Spindle
Platform.
6.
PUBLICITY.
Spindle may use the name, brand, or logo of Customer solely for the purpose of identifying Customer as a licensee, evaluator, or customer of Spindle: (a) on Spindle’s website, brochures, or other promotional materials, or as part of a list of Spindle’s customers or partners in press releases or other public relations materials; or (b) in presentations to actual and potential investors. Any such limited use by Spindle shall include proper attribution to Customer of any trademark or logo of Customer, and shall in no way suggest that Spindle is an agent or representative of Customer. Spindle shall not publicly disseminate any press releases or other marketing materials containing the trademarks or logos of Customer without first obtaining Customer’s written approval (email being acceptable).
7.1 Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.
7.2 Customer Warranty. Customer represents and warrants that it has obtained all rights, approvals, and authorizations necessary to deliver to Spindle the Customer Data and to grant Spindle the rights in the Customer Data set forth in this Agreement.
7.3 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, THE SPINDLE PLATFORM AND DOCUMENTATION ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. SPINDLE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. SPINDLE DOES NOT WARRANT THAT any information PROVIDED BY THE SPINDLE PLATFORM (INCLUDING ANY OUTPUT THEREFROM), IS accuraTE OR COMPLETE OR THAT any SUCH information WILL ALWAYS BE AVAILABLE. SPINDLE EXERCISES NO CONTROL OVER, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF, CUSTOMER’S USE OF THE SPINDLE PLATFORM. CUSTOMER IS SOLELY RESPONSIBLE FOR EVALUATING ALL OUTPUT FROM THE SPINDLE PLATFORM AND FOR THE RESULTS OF CUSTOMER’S RELIANCE ON SUCH OUTPUT. CUSTOMER ACKNOWLEDGES THAT IT IS AWARE OF THE STAGE OF SPINDLE’S OFFERINGS, AND ACCORDINGLY, AGREES THAT THE EXISTENCE, AVAILABILITY, AND TERMINOLOGY OF ANY FEATURES AND FUNCTIONS MAY BE SUBJECT TO ONGOING CHANGES, WITH OR WITHOUT NOTICE, THROUGHOUT THE TERM.
8.1 Indemnification by Spindle. Spindle will: (a) at its expense, either defend Customer from or settle any actual or threatened claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Customer’s use of the Spindle Platform as permitted pursuant to this Agreement infringes or misappropriates any U.S. patent, copyright, or trademark, subject to Section 8.4, and (b) indemnify Customer from and pay the applicable Losses (defined below). Spindle will have no obligation under this Section 8.1 for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following (the “Excluded Claims”): (i) use of the Spindle Platform in combination with other products or services not provided by Spindle if such infringement or misappropriation would not have arisen but for such combination; or (ii) any Configurations created or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for such Configurations.
8.2 Mitigation; Limited Remedy. If Spindle becomes aware of, or anticipates, a Claim subject to Section 8.1, Spindle may, at its option: (a) modify the Spindle Platform so that it becomes non-infringing or substitute a functionally equivalent product; (b) obtain a license to the third-party intellectual property rights giving rise to the Claim; or (c) terminate the Agreement on written notice and refund to Customer any prepaid fees. Sections 8.1 and 8.2 state Spindle’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement, misappropriation, or other violation of any third-party intellectual property right by the Spindle Platform.
8.3 Defense by Customer. Customer will: (a) at its expense, defend Spindle from any actual or threatened third-party Claim (i) arising out of or based upon any claim that Spindle’s possession or processing of Customer Data as permitted by this Agreement is illegal or infringes or violates a third party’s rights or (ii) that is an Excluded Claim, subject to Section 8.4, and (b) indemnify Spindle from and pay the applicable Losses.
8.4 Procedures. A Party’s obligations as the indemnifying Party (“Indemnitor”) with respect to a Claim for which the indemnified Party (“Indemnitee”) is indemnified under this Section 8 (an “Indemnified Claim”) are subject to Indemnitee doing the following: (a) providing Indemnitor prompt written notice of the Indemnified Claim; (b) granting Indemnitor full and complete control over the defense and settlement of the Indemnified Claim; (c) providing assistance in connection with the defense and settlement of the Indemnified Claim as Indemnitor may reasonably request; and (d) complying with any settlement or court order made in connection with the Indemnified Claim. Indemnitee will not defend or settle the Indemnified Claim without Indemnitor’s prior written consent. Indemnitee will have the right to participate in the defense of the Indemnified Claim at its own expense and with counsel of its own choosing, but Indemnitor will have sole control over the defense and settlement of the Indemnified Claim. “Losses” means: (i) all damages, costs, and attorneys’ fees finally awarded against Indemnitee pursuant to the Indemnified Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Indemnitee in connection with the defense of the Indemnified Claim (other than attorneys’ fees and costs incurred without Indemnitor’s consent after Indemnitee has accepted defense of the Indemnified Claim); and (iii) all amounts that Indemnitor agrees to pay to any third party to settle the Indemnified Claim.
SPINDLE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. UNDER NO CIRCUMSTANCES WILL SPINDLE’S TOTAL LIABILITY OF ALL KINDS, IN AGGREGATE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED $500. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE CONSIDERATION PROVIDED BY EACH PARTY UNDER THIS AGREEMENT AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
This Agreement constitutes the entire agreement between Customer and Spindle with respect to its subject matter (unless Customer and Spindle have executed a Custom Platform Agreement, in which case the terms of this Agreement will not apply to Customer for so long as such Custom Platform Agreement remains in effect). Spindle may modify or amend this Agreement and such modifications will be effective when Spindle provides notice of the same to Customer, except that if any such modification is material then such modification will take effect upon the earlier of (a) the date that Customer accepts the modified version of this Agreement and (b) thirty (30) days after posting on Spindle’s website or on the Spindle Platform. Spindle may fulfill the notice requirement in the immediately preceding sentence by presenting the updated Agreement to Customer through the Spindle Platform (in which case such notice will be effective when Customer accesses the Spindle Platform). Except as otherwise expressly set forth in this Agreement, no amendment or modification of this Agreement will be valid or binding unless made in writing and signed by both Parties. In the event that a portion of this Agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the Parties, and the remainder of the Agreement will remain in full force and effect. Failure to strictly enforce any provision of this Agreement will not be construed as a waiver of any provision or right, and waiver by either Party of a breach of any provision of this Agreement or the failure by either Party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. Customer may not assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Spindle, and any such attempted assignment will be void. All notices hereunder shall be in writing and shall be effectively given upon delivery by email to (a) in the case of Spindle, support@spindle.ai and (b) in the case of Customer, to the email address associated with Customer’s account on the Spindle Platform. The laws of the State of California (excluding its choice of law rules) will govern this Agreement, and Customer hereby consents to exclusive personal jurisdiction in the federal and state courts located in Santa Clara County, California, for any actions arising out of this Agreement or relating to Customer’s use of the Spindle Platform. Spindle will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement.