Effective date: Oct 1, 2020
What Information does HeadSpin Collect?
Information You Provide to Us:
We may communicate with you if you’ve provided us the means to do so. For example, if you’ve given us your email address, we may send you promotional email offers on behalf of other businesses, or email you about your use of the Services. Also, we may receive a confirmation when you open an email from us. This confirmation helps us make our communications with you more interesting and improve our services. “If you do not want to receive communications from us or would like to unsubscribe from any available channels, please indicate your preference by contacting us at firstname.lastname@example.org.”
Information Collected Automatically
Whenever you interact with our Services, we automatically receive and record information on our server logs from your browser or device, which may include your IP address, geolocation data, device identification, “cookie” information, the type of browser and/or device you’re using to access our Services, and the page or feature you requested. “Cookies” are identifiers we transfer to your browser or device that allow us to recognize your browser or device and tell us how and when pages and features in our Services are visited and by how many people. You may be able to change the preferences on your browser or device to prevent or limit your device’s acceptance of cookies, but this may prevent you from taking advantage of some of our features.
Please keep in mind that we will be able to see (and will automatically receive and record) any information you access or enter into third-party sites while you are using the Services. This may include passwords and sensitive financial, health, or other personal information. You should not access any third-party site that contains data, or enter any data into any third-party site, that you do not want us to have access to.
We may use this data to customize content for you that we think you might like, based on your usage patterns. We may also use it to improve the Services – for example, this data can tell us how often users use a particular feature of the Services, and we can use that knowledge to make the Services interesting to as many users as possible.
Do Not Track Policy
Your browser may offer you a “Do Not Track” option, which allows you to signal to operators of websites and web applications and services (including behavioral advertising services) that you do not wish such operators to track certain of your online activities over time and across different websites. Our Services do not support Do Not Track requests at this time, which means that we collect information about your online activity both while you are using the Services and after you leave our Services.
Will HeadSpin Share Any of the Personal Information it Receives?
We do not rent or sell your Personal Information in personally identifiable form to anyone. We may share your Personal Information with third parties as described in this section:
Information that’s been de-identified. We may de-identify your Personal Information so that you are not identified as an individual, and provide that information to our partners. We may also provide aggregate usage information to our partners (or allow partners to collect that information from you), who may use such information to understand how often and in what ways people use our Services, so that they, too, can provide you with an optimal online experience. However, we never disclose aggregate usage or de-identified information to a partner (or allow a partner to collect such information) in a manner that would identify you as an individual person.
Affiliated Businesses: In certain situations, businesses or third party websites we’re affiliated with may sell or provide products or services to you through or in connection with the Services (either alone or jointly with us). You can recognize when an affiliated business is associated with such a transaction or service, and we will share your Personal Information with that affiliated business only to the extent that it is related to such transaction or service. One such service may include the ability for you to automatically transmit Third Party Account Information to your Services profile or to automatically transmit information in your Services profile to your third party account; for example, we may access your profile image if you choose to log in through your Google account. We have no control over the policies and practices of third party websites or businesses as to privacy or anything else, so if you choose to take part in any transaction or service relating to an affiliated website or business, please review all such business’ or websites’ policies.
Agents: We employ other companies and people to perform tasks on our behalf and need to share your information with them to provide products or services to you; for example, we may use a cloud services company to store your data, or a payment processing company to receive and process your credit card transactions for us. Unless we tell you differently, our agents do not have any right to use the Personal Information we share with them beyond what is necessary to assist us. Note that an “agent” may also be considered a “partner” in certain circumstances, and would be subject to the terms of the “Information that’s been de-identified” section in that regard.
User Profiles and Submissions: Certain user profile information, including your name, location, and any video or image content that such user has uploaded to the Services, may be displayed to other users to facilitate user interaction within the Services or address your request for our services. Your account privacy settings may allow you to limit the other users who can see the Personal Information in your user profile and/or what information in your user profile is visible to others. Please remember that any content you upload to your public user profile, along with any Personal Information or content that you voluntarily disclose online in a manner other users can view (on discussion boards, in messages and chat areas, etc.) becomes publicly available, and can be collected and used by anyone. Your user name may also be displayed to other users if and when you send messages or comments or upload images or videos through the Services and other users can contact you through messages and comments.
Business Transfers: We may choose to buy or sell assets, and may share and/or transfer customer information in connection with the evaluation of and entry into such transactions. Also, if we (or our assets) are acquired, or if we go out of business, enter bankruptcy, or go through some other change of control, Personal Information could be one of the assets transferred to or acquired by a third party.
Is Personal Information about me secure?
Your account is protected by a password for your privacy and security. If you access your account via a third party site or service, you may have additional or different sign-on protections via that third party site or service. You must prevent unauthorized access to your account and Personal Information by selecting and protecting your password and/or other sign-on mechanism appropriately and limiting access to your computer or device and browser by signing off after you have finished accessing your account.
We endeavor to protect the privacy of your account and other Personal Information we hold in our records, but unfortunately, we cannot guarantee complete security. Unauthorized entry or use, hardware or software failure, and other factors, may compromise the security of user information at any time.
What Personal Information can I access?
Through your account settings, you may be able to access, and, in some cases, edit or delete information that you’ve provided to us, which may include:
- name and password
- email address
- user profile information, including images and videos you have uploaded to the site
The information you can view, update, and delete may change as the Services change. If you have any questions about viewing or updating information we have on file about you, please contact us at email@example.com.
Under California Civil Code Sections 1798.0100, 1798.83-1798.84, including the California Consumer Privacy Act of 2018 (“CCPA”) and the California Shine The Light law, which applies to California residents, you have certain rights regarding the Personal Information collected by HeadSpin and are entitled to (i) contact us to prevent disclosure of Personal Information to third parties for such third parties’ direct marketing purposes, (ii) opt-out of the disclosure of your information, (iii) request deletion of your personal information, and (iv) request, twice in a 12-month period, that we disclose to you the personal information we may have collected or used about you during the 12 months. We will not discriminate against you for exercising your rights under CCPA. We also do not sell your personal information and will not do so in the future without providing you with notice and an opportunity to opt-out of such sale as required by law. In order to submit such a request, or if you have any inquiries, please contact us at firstname.lastname@example.org.
What choices do I have?
You can always opt not to disclose information to us, but keep in mind some information may be needed to register with us or to take advantage of some of our features.
You may be able to add, update, or delete information as explained above. When you update information, however, we may maintain a copy of the unrevised information in our records. You may request deletion of your account by contacting email@example.com. Some information may remain in our records after your deletion of such information from your account. We may use any aggregated data derived from or incorporating your Personal Information after you update or delete it, but not in a manner that would identify you personally.
What if I have questions about this policy?
If you have any questions or concerns regarding our privacy policies, please send us a detailed message to firstname.lastname@example.org, and we will try to resolve your concerns.
Copyright Dispute Policy
Effective date: February 5, 2020
In accordance with the DMCA, we’ve adopted the policy below toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users and (2) remove and discontinue service to repeat offenders.
- Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to the Headspin’s Designated Agent to Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details are listed below):
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Headspin is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, email address;
- A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
- Once Proper Bona Fide Infringement Notification Is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
- A physical or electronic signature of the content provider;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
- A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
- Content provider’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s address is located, or, if the content provider’s address is located outside the United States, for any judicial district in which Headspin is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Headspin may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Headspin may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Headspin’s discretion.
1. SERVICES AND SUPPORT1.1 Subject to the terms and conditions of this Agreement, SP will provide Customer with access to the Services through the internet. The Services are subject to modification from time to time at SP’s sole discretion, for any purpose deemed appropriate by SP. SP will use reasonable efforts to give Customer prior written notice of any such modification.1.2 SP will undertake commercially reasonable efforts to make the Services available in accordance with the Support and Maintenance provisions attached hereto as Exhibit (Support and Maintenance). Notwithstanding anything to the contrary, SP reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to SP.1.3 As part of the Services, SP may provide Customer with access to certain devices and other equipment (collectively, “Equipment”), which Equipment shall be included within the meaning of “Services” hereunder. Customer shall use and access the Equipment (i) solely for the purpose of using the Services as permitted under this Agreement, and (ii) in accordance with all applicable United States and foreign laws, rules and regulations of where the equipment is deployed. Customer shall not rent, lease, loan or otherwise provide access to the Equipment to, or allow the use or possession of the Equipment by, any third party. Any Equipment provided for use by Customer hereunder does not constitute a sale of the Equipment. All Equipment shall (i) remain personal property of SP; (iii) be kept free of liens and encumbrances by Customer; and (iii) not be modified in any manner by Customer. SP shall retain all right, title and interest in the Equipment, and Customer shall treat and maintain the Equipment with the same degree of care as Customer uses with respect to its own valuable equipment, but in no event less than a reasonable degree of care for equipment of a similar kind and importance. Upon SP’s request or upon termination or expiration of this Agreement, Customer shall immediately cease all use of the Equipment. Customer shall execute all documents, or instruments evidencing Company’s ownership of the Equipment as Company may from time to time request. Customer shall reimburse Company for, and indemnify Company against, any and all claims, losses, damages or costs resulting from Customer’s breach of this Section.
2. RESTRICTIONS AND RESPONSIBILITIES2.1 Access to the Services may require the Customer to install certain software applications. Customer agrees to be bound by any End-User Software Agreements that govern the installation and use of such client software applications. If SP authorizes Customer to distribute any such application to its end user content customers (“End Users”), Customer may do so only after effectively binding such End Users to any applicable End-User Software Agreements provided by SP for the benefit of SP.2.2 Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for benchmarking, timesharing or service bureau purposes or for any purpose other than its own use for the benefit of End Users; take any action that imposes, or may impose at Company’s discretion an unreasonable or disproportionately large load on Company’s infrastructure, or otherwise interfere with the proper working of the Services, or disable, bypass or otherwise attempt to interfere with any measures that Company may use to prevent or restrict access to the Services; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations applicable in the jurisdiction(s) in which the Services are used or accesses (including but not limited to any European privacy laws, intellectual property, consumer and child protection, obscenity or defamation), and SP shall have no liability for any action or inaction by Customer in violation of the foregoing.2.3 Customer will cooperate with SP in connection with the performance of this Agreement and any regulatory or governmental investigation or proceeding relating to Customer’s use of the Services by making available such personnel and information as may be reasonably required, and taking such other actions as SP may reasonably request, including, without limitation, providing Customer’s activity logs to SP as reasonably necessary to perform support and maintenance obligations and respond to regulatory or governmental inquiries. Customer will also cooperate with SP in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.4 Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to SP.2.5 Customer shall not upload or introduce any computer virus, malware or similar item (each of the foregoing, a “Virus”) into SP’s computing or network environment. If Customer transfers a Virus to SP’s computing or network environments, it shall reimburse SP for, and indemnify SP against, any and all claims, losses, damages or costs resulting therefrom, including without limitation any costs incurred by SP in connection with removal or recovery from the Virus, including all costs of labor for persons employed or engaged by SP and all hardware replacement costs.2.6 Although SP has no obligation to monitor the content provided by Customer or Customer’s use of the Services, SP may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3. CONFIDENTIALITY3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Notwithstanding anything to the contrary, SP may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance.3.3 Customer acknowledges that SP does not wish to receive any Proprietary Information from Customer that is not necessary for SP to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, SP may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information. 3. 4 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
4. INTELLECTUAL PROPERTY RIGHTS4.1 Except as expressly set forth herein, SP alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to SP. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.4.2 SP will obtain and process content/data provided by or on behalf of Customer (“Content”) only to perform its obligations under this Agreement. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content. If SP receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), SP may (but is not required to) suspend activity hereunder with respect to that Content and Customer will indemnify SP from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
5. PAYMENT OF FEES5.1 Customer will pay SP the applicable fees as set forth on the applicable Order Form (the “Fees”). If Customer use of the Services exceeds any Service Capacity set forth on the applicable Order Form, Customer will be invoiced at the end of each calendar month for the excess usage over the Service Capacity, at the rate set forth on the applicable Order Form (if any), and Customer agrees to pay the additional fees without any right of set-off or deduction. All payments will be made in U.S. dollars and in accordance with the applicable Order Form. If not otherwise specified, payments will be due within thirty (30) days of invoice.
5.2 Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on SP’s net income) unless Customer has provided SP with a valid exemption certificate. In the case of any withholding requirements, SP will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
6. TERMINATION6.1 Subject to earlier termination as provided below, this Service Agreement is for the Term as specified in the applicable Order Form.
6.2 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement (including all Order Forms) by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty (30)- day period. Additionally, either party may terminate this Agreement (including all Order Forms) for convenience upon ninety (90) days’ prior written notice to the other party. Upon the early termination of this Agreement, provided Customer has not breached this Agreement, SP shall refund to Customer within 30 days of termination any Fees that have been prepaid that are attributable to any period after termination. Either party may also terminate an individual Order Form in accordance with the two (2) previous sentences, provided that if an Order Form is so terminated, the terms of this Agreement shall remain in effect with respect to any other Order Form(s) still in effect. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business without a successor.
6.3 All sections of this Service Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitation of liability.
6.4 We reserve the right to suspend or terminate your access to the Services, without notice, if your use of the Services would cause a real risk of harm or loss to us or other users, doing so would cause us legal liability or compromise our ability to provide the Services to our other users, or we’re prohibited from doing so by law.
7. CLIENT SOFTWARE SECURITY7.1 SP represents and warrants that it will not knowingly include, in any SP software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, SP fails to comply with the warranty in this Section, Customer may promptly notify SP in writing of any such noncompliance. SP will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
8. WARRANTY DISCLAIMER8.1 THE SERVICES AND SP PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. SP (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY9.1 IN NO EVENT WILL EITHER PARTY (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF SP, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO SP HEREUNDER IN THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATIONS WILL NOT APPLY TO ANY OBLIGATIONS OF THE PARTIES IN CONNECTION WITH THEIR INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT OR IN CONNECTION WITH THE DATA PROCESSOR ADDENDUM ATTACHED HERETO AS EXHIBIT (SUPPORT AND MAINTENANCE), WHICH IS INCORPORATED HEREIN BY THIS REFERENCE.
10. U.S. GOVERNMENT MATTERS10.1 Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by SP are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
11. MISCELLANEOUS11.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement may not be subcontracted, assigned, transferred or sublicensed by Customer except with SP’s prior written consent. SP may freely subcontract, transfer and assign any of its rights and obligations under this Agreement without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind SP in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. SP will not be liable for any loss resulting from a cause over which it does not have direct control. Either party may disclose to any third party that Customer is one of SP’s customers without consent. Either party may use the other party’s name and logo in connection with product presentations, marketing materials, and on its website, only to indicate that Customer is a customer of SP, provided that each party complies with all trademark usage guidelines promulgated by the other party. Except as expressly provided in the preceding sentence, neither party will use, register or take any other action with respect to any logo or trademark of the other party anywhere in the world. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. Any dispute or claim arising out of or related to this Agreement, or breach or termination thereof, will be finally settled by binding arbitration in the County of San Mateo, California, United States pursuant to the International Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) then in effect by a single JAMS arbitrator with substantial experience in resolving complex commercial contract disputes. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator will apply California law to the merits of any dispute or claim, without reference to rules of conflict of law, and shall have the authority to award any and all available remedies, including legal and equitable relief. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator. The arbitral proceedings and all pleadings and written evidence shall be in the English language. Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or true copy thereof. The prevailing party will be entitled to receive from the non-prevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. Customer hereby consents to the arbitration in the State of California in the county of San Mateo. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by SP.
12. ONPS SERVICES
The following will apply when ONPS Services are selected in the Order Form:
12. 1 The Customer server (and related or peripheral equipment and software) on which the SP software for the Services is to be installed will constitute “Customer Equipment” and will be dedicated exclusively to the Services. Customer will not otherwise use or transfer any such Customer Equipment until all Software has been permanently removed. Customer will maintain this Customer Equipment in good working order (including but not limited to backup, recovery, and reboot services as necessary). Customer will have full responsibility for security of all Customer Equipment (physical, electronic and otherwise) such that (except for use of the Service as expressly and unambiguously authorized in Sections 1 and 2 of this Agreement) no person or entity other than SP will have any direct or indirect access to any Software.
12.2 Customer acknowledges and agrees that SP will at all times have access to Customer Equipment (including but not limited to onsite access and electronic access) to engage in any activity or action relating to Services (including but not limited to maintenance and installation of Software) subject to Customer’s standard reasonable security procedures.
12.3 SP will have no obligation to insure or be responsible for any loss or damage to property of any kind owned or leased by Customer or its employees, contractors, and agents.
12.4 Upon any termination, Customer will permit SP to access the Customer Equipment to remove all SP property, including but not limited to Software.
12.5 Customer will not allow any lien to attach to any Software, will not remove any notice SP may apply to the Customer Equipment indicating that the Software is not owned by Customer and will publicly file any documents requested by SP to such effect.
SUPPORT AND MAINTENANCE
1. Software Maintenance1.1 SP may apply bug fixes, updates, upgrades and otherwise perform maintenance for the Services at such times as determined by SP in its sole discretion. Customers shall not unreasonably delay Provider’s implementation of updates, upgrades, maintenance releases or bug fixes to the Services.1.2 SP may perform scheduled or emergency maintenance as it deems reasonably necessary. SP will use commercially reasonable efforts to notify Customer at least 3 days prior to any such scheduled maintenance.
2. Support and Service Level
During the Term, SP shall use commercially reasonable efforts to provide Customer with the following support and maintenance services:
2.1 Support: SP shall provide support via telephone or email to assist in resolving issues, 24 hours a day, 7 days a week through the following channels:
- Support Email: email@example.com
2.2 Escalation: Customer may contact the following individuals to raise the severity of issues or contact in case of urgent needs.
2.3 Ticketing: SP will use GitHub as the ticketing system for its support and escalation framework.2.4 Issue Reporting: Customer will document and report all suspected and actual errors or malfunctions (“Errors”) of any applicable Services to SP via email or case tracking system, and, for any reported Errors, reasonably cooperate with SP in its investigation by phone, email, and through Provider’s case tracking system. SP may close the trouble ticket for an Error and such Error will be deemed resolved without further liability of SP under this Agreement if (i) Customer does not provide requested information related to the reported error within thirty (30) days after receiving a patch or workaround or other resolution from SP, (ii) if Customer fails to respond to a request for additional information from SP or confirm that an Error has been resolved, or (iii) Company determines in its reasonable discretion that the Error falls under the “Exclusion” category (as set forth below) or otherwise has no adverse impact on the Services or Customer’s use thereof.
2.5 Issue Severity and Response Time: SP will use commercially reasonable efforts to respond to Service issues in accordance with the following table, provided that Severity Levels shall be assigned by Company in its reasonable discretion:
Service Fault Category
SEVERITY LEVEL 1: Major Service Fault
– Device not accessible
– Device malfunction
– SIM related inaccessibility
– Network or VPN issues
SEVERITY LEVEL 2: Performance Fault
– Service is working, Device is accessible
– Performance is slow
SEVERITY LEVEL 3: Minor Issues
– Device is accessible with good performance
– Issues not related to the above
– Issues related to labelling, Login etc
– SIM Balance update or changes
EXCLUSION: Any failure or delay caused by:
– factors outside of SP reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, hurricane or other natural catastrophe, civil unrest, acts of terror, laws, orders, regulations, directions or actions of governmental authorities, strikes or other labor problems (other than those solely involving SP employees);
– unavailability of the Services that results from equipment and/or software of third parties where such equipment and/or software is not within the reasonable control of SP; or
– to unavailability of the Services caused by abuse or misuse of the Services (or any component thereof) by customer.; or
– unavailability of the Services caused by Scheduled
Variable, depending on circumstances in the applicable geographic location
THIS EXHIBIT (SUPPORT AND MAINTENANCE) SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND COMPANY’S ENTIRE LIABILITY, FOR ANY FAILURE TO MEET THE SERVICE LEVEL COMMITMENTS SET FORTH HEREIN.
Please contact HeadSpin’s Designated Agent at the following address:
3200 Ash Street
Palo Alto, CA 94306,