End-User License Agreement (EULA)
This Agreement (together with all addenda, schedules and exhibits attached hereto, the “Agreement”) is made and entered into by and between Spring Systems, Inc. (“Spring”) and (“Customer”).
1. Overview.
This Agreement states the terms and conditions by which Spring will deliver and Customer will receive any or all of the Services provided by Spring. The specific Services and/or products to be provided hereunder are identified in the Spring Sales Order Form(s) (each a “Sales Order Form”). Each Sales Order Form submitted, accepted and executed by both parties is hereby incorporated by reference into this Agreement. This Agreement is intended to cover any and all Services ordered by Customer and provided by Spring.
2. Terms; Payment.
2.1 Term.
(a) Initial Term. The initial term for each Service, if any, will be specified on a Sales Order Form.
(b) Renewal Term(s). Unless otherwise stated on a Sales Order Form each Renewal Term shall equal that of the most recent Term. Unless the Service(s) are terminated pursuant to Section 6 of this Agreement, each Service will automatically renew under the same terms and conditions for a Renewal Term, except that prices may be adjusted to the then current standard price list (the Initial Term and the Renewal Term shall be referred to herein as the “Term”). Notwithstanding the foregoing, Spring may change or increase the prices it charges Customer for any Service at any time after twelve (12) months from the Service Commencement Date, effective thirty (30) days after providing notice to Customer.
2.2 Payment Terms. All payments will be made in the United States in U.S. dollars. All invoices shall be due within thirty (30) days of the invoice date unless alternate payment terms are specified on a Sales Order Form. Any payment not received by its due date will accrue interest at a rate of one and one-half percent (1 ½%) per month, or the highest rate allowed by applicable law, whichever is lower. Should an invoice be sent to a collection agency, customer will be liable for any fees including legal, charged to collect that debt.
2.3 Credits. Account credits may be periodically applied to customer accounts such as for pre-payment and other scenarios exclusive of PortalApp Monthly Subscription fees. Customer has thirty (30) days from date of customer payment to request a refund of pre-paid, unused credits. Unused credits older than 12 months will be absorbed by Springs Systems.
2.4 Taxes. All fees charged by Spring for Services are exclusive of all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services, all of which Customer will be responsible for and will pay in full, except for taxes based on Spring’s U.S. net income.
3. Confidential Information; Ownership of Customer Data.
3.1 Nondisclosure of Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party's business, plans, sales, sales orders, order forms, pricing, vendor information, vendor pricing, customers, technology, and products, and other information not generally known or available to the public or held in confidence by the other party (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information will also include, but not be limited to the technology employed by Spring in supplying the Services, and the terms and conditions of this Agreement. Each party agrees that it will not reproduce or use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors necessarywho have a need-to-know the Confidential Information in furtherance of the purposes of this Agreement), any of the other party's Confidential Information and will take all reasonable precautions to protect the security and confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information, but in no event less than reasonable care.
3.2 Ownership of Customer Data. All data received and/or developed from Customer or Customer’s customers pursuant to the use of the Services including but not limited to the Confidential Information, (the “Customer Data”) are the property of Customer. Spring shall treat the Customer Data as Confidential Information of Customer; provided, however, that Customer acknowledges and agrees that Spring shall have the right to utilize data capture and analysis tools to extract, compile, synthesize and analyze Customer’s “blind” data in connection with the provision of the Services and to use such data in the aggregate to compile statistics and to monitor and improve the Services and Spring’s additional offerings.
3.3 Ownership. Spring and its suppliers shall retain all title, copyright and other proprietary rights to any tools or computer systems provided and delivered by Spring that are used to provide Services (the “Managed Solution”). Customer does not acquire any rights, express or implied, in the Managed Solution, other than those specified in this Agreement. Notwithstanding any references in this Agreement or other documents to the “purchase” of the Managed Solution by Customer, the parties intend and agree that the Managed Solution licensed or leased to Customer hereunder is not being sold by Spring or purchased by Customer. Any improvements, modifications, enhancements, interfaces and/or customizations related to the Managed Solution whether identified or developed by Spring, Customer or both shall be the exclusive property of Spring. In the event that Customer makes suggestions to Spring regarding new features, functionality or performance that Spring adopts for the Managed Solution, such new features, functionality or performance shall become the sole and exclusive property of Spring, free from any restriction imposed on Spring by the provisions of Section 3.1 or 3.2 hereof. Spring shall retain exclusive ownership to any and all intellectual property created by Spring in the course of performance of the Services performed under this Agreement, including any and all modifications to existing Spring software and any documentation and/or procedures applicable to the use of any Spring product or Service.
4. Warranties.
4.1 Service and Performance Warranty. Spring warrants that it will perform the Services in a manner consistent with industry standards reasonably applicable to the performance thereof. This warranty shall be valid for sixty (60) days from performance of the Service. Customer’s sole and exclusive remedy for a breach of this Section 4.1 shall be the re-performance of the Services, or if Spring is unable to timely perform the Services as warranted, or if re-performance of the Services is not appropriate, Customer shall be entitled to recover the fees paid to Spring for the deficient Services; provided, however, that, during the warranty period, Customer provides Spring with written notification of such deficient Services.
4.2 No Other Warranty. Except for the express warranties set forth in this Section 4, the Services are provided on an “as is” basis, and Customer’s use of the Services is at its own risk. Spring does not make, and hereby disclaims, any and all other Express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, noninfringement and title, and any warranties arising from a course of dealing, usage, or trade practice. Spring does not warrant that the Services will be uninterrupted, error-free, or completely secure, that the Managed Solution is free of defects or errors or that all defects will be corrected, or that the Managed Solution will meet Customer’s needs. Spring does not warrant that any deliverables or materials provided hereunder will operate in combination with other hardware, software, systems, or data not provided by Spring.
4.3 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. Spring does not and cannot control the flow of data to or from Spring’s network and other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt customer’s connections to the Internet (or portions thereof). Although Spring will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Spring cannot guarantee that such events will not occur. Accordingly, Spring disclaims any and all liability resulting from or related to such events.
5. Limitations of Liability.
5.1 Consequential Damages Waiver. Except for a breach of section 3.1 (“Confidential Information”) of this Agreement, In no event will either party be liable or responsible to the other for any type of incidental, punitive, indirect or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss of data, interruption or loss of use of Service or equipment, chargebacks, compliance charges, expense offsets, and/or third party charges, even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), strict liability or otherwise.
6. Termination.
6.1 Termination by Customer. Customer may terminate this Agreement for any reason at the end of a Term, as defined in Section 2 herein, provided thirty (30) days written notice are given. In the event Customer terminates this Agreement prior to the expiration of the then current Term or without meeting the notification conditions stated in this section 6.1, Customer shall pay an early termination charge equal to the minimum monthly charge multiplied by the number of months remaining under the then-current Term, plus all accrued but unpaid usage charges and other charges incurred through the date of such termination.
6.2 Termination by Spring. Spring may terminate this Agreement for any reason at the end of a Term, as defined in Section 2 herein, provided thirty (30) days written notice are given. Spring may terminate this Agreement and/or cease or suspend the provision of any Services upon default of Customer. Default expressly means: (a) the failure to pay any amount when due; (b) the filing of a petition in bankruptcy by or on behalf of the Customer or (c) any material breach of this Agreement which has not been cured after thirty (30) days prior written notice. If Spring has rightfully suspended the Services pursuant to this Section 6.2, Spring shall require a reasonable reconnection fee in order to resume delivery of the Services. If it is determined that Spring did not rightfully suspended the Services pursuant to this Section 6.2, Spring shall pay for any required reasonable reconnection fee in order to resume delivery of the Services. Termination pursuant to this Section 6.2 shall not relieve Customer of its obligation to pay all fees for Services accrued and owing up to and including the date of termination or otherwise payable pursuant to this Agreement.
7. Miscellaneous Provisions.
7.1 Force Majeure. Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inactions of Spring), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If Spring is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of a continuing force majeure event, Customer may cancel the Service(s).
7.2 Marketing. Each of the parties agrees that with prior written permission of the other party, it may list, as a marketing reference, the other party’s name, location, type of business and contact person in any external media, whether in print or otherwise, during the term of this Agreement and for a period of two (2) years following the termination or expiration date of this Agreement.
7.3 Assignment. Either party may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Except as provided in this Section 7.3, neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, Spring may delegate the performance of certain Services to third parties, provided Spring controls the delivery of such Services to Customer and remains responsible to Customer for the delivery of such Services. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
7.4 Governing Law; Dispute Resolution. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of New York and specifically excluding from application to this Agreement that law known as the United Nations Convention on the International Sale of Goods. If it becomes necessary for either party to institute any legal action against the other party, the prevailing party in such action shall be entitled to its reasonable attorney’s fees and costs.