Terms of Use

PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.

Effective date: February 5, 2019

Welcome to HeadSpin! Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at support@headspin.io, phone 424-341-4323, or

3200 Ash St., Palo Alto, CA 94306

These Terms of Use (the “Terms”) are a binding contract between you and HeadSpin, Inc. (“HeadSpin,” “we” and “us”). You must agree to and accept all of the Terms, or you don’t have the right to use the Services. Your using the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document, as well as those in the Privacy Policy and Copyright Dispute Policy.

Will these Terms ever change?

We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice on the HeadSpin website, by sending you an email, and/or by some other means. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes. Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.

What about my privacy?

HeadSpin takes the privacy of its users very seriously.

The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at privacy@headspin.io.

What are the basics of using HeadSpin?

You may be required to sign up for an account, and select a password and user name (“HeadSpin User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your HeadSpin User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.

Company hereby authorizes HeadSpin to use the name, trademarks, and logos of Company in routine marketing, PR/communications and other promotional materials of HeadSpin in connection with the Services performed by HeadSpin under the Agreement, unless Company specifically notifies HeadSpin to the contrary prior to such use by HeadSpin.  As between Company and HeadSpin, such names, trademarks, and logos are the exclusive property of Company and its suppliers and HeadSpin has not and will not acquire any proprietary rights therein by reason of an Agreement or any other agreement.  Company will have the right to decline any use of such names, trademarks and logos by HeadSpin in publicity about Company or HeadSpin.    

You represent and warrant that you are of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).

You will only use the Services for your own internal use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.

You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.

Your use of the Services is subject to the following additional restrictions:

You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:

  1. Infringes or violates the intellectual property rights or any other rights of anyone else (including HeadSpin);
  2. Violates any law or regulation, including any applicable export control laws;
  3. Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
  4. Involves contests, sweepstakes, barter, advertising, or pyramid schemes;

  5. Involves Bitcoin or Altcoin mining;

  6. Jeopardizes the security of your HeadSpin account or anyone else’s (such as allowing someone else to log in to the Services as you);
  7. Attempts, in any manner, to obtain the password, account, or other security information from any other user;
  8. Violates the security of any computer network, or cracks any passwords or security encryption codes;
  9. Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
  10. “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
  11. Copies or stores any significant portion of the Content;
  12. Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services;
  13. to attempt to manipulate the HeadSpin name, services or products;
  14. Is used for any other purpose other than the legitimate testing or validation of web sites, mobile web sites and applications.
  15. to otherwise infringe or circumvent these Terms.

In order to protect the Services from being misused or used to harm someone, HeadSpin reserves the right to take appropriate measures when our Services are being used contrary to these Terms and applicable laws. You agree that HeadSpin may terminate your account, without providing a refund for Services already paid, if you misuse the Service. We further reserve the right to refuse providing Services to any user at any time, at our sole discretion.

 

What are my rights in HeadSpin?

The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including HeadSpin’s) rights.

You understand that HeadSpin owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.

The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!

 

Do I have to grant any licenses to HeadSpin or to other users?

Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission.” Some User Submissions may be viewable by other users. In order to display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions. Please note that all of the following licenses are subject to our Privacy Policy to the extent they relate to User Submissions that are also your personally-identifiable information.

For all User Submissions, you hereby grant HeadSpin a license to translate, modify (for technical purposes, for example making sure your content is viewable on a smartphone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.

If you store a User Submission in your own personal HeadSpin account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant HeadSpin the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you (and to anyone to whom you provide access) and providing the Services necessary to do so.

If you share a User Submission only in a manner that only certain specified users can view (for example, a private message to one or more other users) (a “Limited Audience User Submission”), then you grant HeadSpin the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the sole purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.

If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, a “Public User Submission”), then you grant HeadSpin the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all HeadSpin users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with HeadSpin’s business, provided that HeadSpin will try to notify you if it uses your Public User Submission for any reason other than displaying it on the Services. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.

You agree that the licenses you grant are royalty-free, perpetual, sub-licensable, irrevocable, and worldwide, provided that when you delete your HeadSpin account, we will stop displaying your User Submissions (other than Public User Submissions, which may remain fully available) to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from HeadSpin’s records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.

Finally, you understand and agree that HeadSpin, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.

 

What if I see something on the Services that infringes my copyright?

The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent. You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like HeadSpin, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, learn more at www.dmca.org

 

Who is responsible for what I see and do on the Services?

Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.

You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.

HeadSpin will try to make your Content available to you when you need it, but we cannot guarantee that it will always be available. For example, we may need to delete data after a certain period of time in order to free up space on our servers for new data. We recommend that you download and securely store any Content or other information that you may want to access in the future.

The Services may contain links or connections to third party websites or services that are not owned or controlled by HeadSpin. When you access third party websites or use third party services, you accept that there are risks in doing so, and that HeadSpin is not responsible for such risks. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third party website or service that you visit or utilize.

HeadSpin has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, HeadSpin will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.

Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that HeadSpin shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.

If there is a dispute between participants on this site, or between users and any third party, you agree that HeadSpin is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release HeadSpin, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor."

 

Will HeadSpin ever change the Services?

We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.

 

Does HeadSpin cost anything?

Yes. HeadSpin requires you to pay the applicable fees as described on the HeadSpin website in connection with the Services you select to use. From time to time, HeadSpin may choose to offer some Services for free (but may still require you to provide payment information in connection with receiving free Services, such as a free introductory period). HeadSpin reserves the right to change its price list and to institute new charges at any time, upon notice to you, which may be sent by email or posted on the HeadSpin website. Your use of the Services following such notification constitutes your acceptance of any new or increased charges.

 

If you choose to enroll in any paid Services, you will be charged an annual subscription fee. The subscription fee for these services (“Subscription Fee”) will be charged to the credit card you provided upon enrollment in the Services in advance or in monthly or quarterly installments, depending on the payment plan we agree on when you sign up for the Services. Subscription Fees are non-refundable. Your enrollment in the paid Services will be automatically renewed every twelve (12) months. We will notify you prior to the expiration of the twelve (12) month paid term; if you wish to cancel auto-renewal of the paid Services for the following year, you must notify HeadSpin within 60 days of your receipt of an auto-renewal notice by contacting us at support@headspin.io. HeadSpin may change the Subscription Fee upon notice to you, but such change will only take effect once your then-current paid term has ended. If you do not wish to pay the new Subscription Fee, your only remedy shall be to cancel your enrollment in the paid Services for the following year, prior to the expiration of your then-current paid term. You may cancel your paid subscription at any time, but again, no refunds will be granted for Subscription Fees paid.

 

What if I want to stop using HeadSpin?

You’re free to do that at any time, by contacting us at support@headspin.io; please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.

HeadSpin is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. HeadSpin has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.

Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important User Submissions you may have stored in your account (to the extent allowed by law and these Terms), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of HeadSpin.

If you have deleted your account by mistake, contact us immediately at support@headspin.io – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.

Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.


What else do I need to know?

Warranty Disclaimer. Neither HeadSpin nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from HeadSpin or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product).

THE SERVICES AND CONTENT ARE PROVIDED BY HEADSPIN (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL HEADSPIN (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO HEADSPIN IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnity. To the fullest extent allowed by applicable law, You agree to indemnify and hold HeadSpin, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

Assignment. You agree to not assign or transfer any rights or obligations to a third party without the express written consent of HeadSpin, Inc

Choice of Law; Arbitration. These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted.YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND HEADSPIN ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that HeadSpin may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and HeadSpin agree that these Terms are the complete and exclusive statement of the mutual understanding between you and HeadSpin, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of HeadSpin, and you do not have any authority of any kind to bind HeadSpin in any respect whatsoever. Except as expressly set forth in the section above regarding the Apple Application, you and HeadSpin agree there are no third party beneficiaries intended under these Terms.

 

Privacy Policy

Effective date: February 5, 2019

We at HeadSpin know you care about how your personal information is used and shared, and we take your privacy seriously. Please read the following to learn more about our Privacy Policy. By using or accessing the Services in any manner, you acknowledge that you accept the practices and policies outlined in this Privacy Policy, and you hereby consent that we will collect, use, and share your information in the following ways.

Remember that your use of HeadSpin’s Services is at all times subject to the Terms of Use, which incorporates this Privacy Policy. Any terms we use in this Policy without defining them have the definitions given to them in the Terms of Use.

 

What does this Privacy Policy cover?

This Privacy Policy covers our treatment of personally identifiable information ("Personal Information") that we gather when you are accessing or using our Services, but not to the practices of companies we don’t own or control, or people that we don’t manage. We gather various types of Personal Information from our users, as explained in more detail below, and we use this Personal Information internally in connection with our Services, including to personalize, provide, and improve our services, to allow you to set up a user account and profile, to contact you and allow other users to contact you, to fulfill your requests for certain products and services, and to analyze how you use the Services. In certain cases, we may also share some Personal Information with third parties, but only as described below.

As noted in the Terms of Use, we do not knowingly collect or solicit personal information from anyone under the age of 13. If you are under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn that we have collected personal information from a child under age 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at privacy@headspin.io.

 

Will HeadSpin ever change this Privacy Policy?

We’re constantly trying to improve our Services, so we may need to change this Privacy Policy from time to time as well, but we will alert you to changes by placing a notice on the HeadSpin website, by sending you an email, and/or by some other means. Please note that if you’ve opted not to receive legal notice emails from us (or you haven’t provided us with your email address), those legal notices will still govern your use of the Services, and you are still responsible for reading and understanding them. If you use the Services after any changes to the Privacy Policy have been posted, that means you agree to all of the changes. Use of information we collect now is subject to the Privacy Policy in effect at the time such information is collected.

 

What Information does HeadSpin Collect?

Information You Provide to Us:

We receive and store any information you knowingly provide to us. For example, through the registration process and/or through your account settings, we may collect Personal Information such as your name, email address, phone number, and third-party account credentials (for example, your log-in credentials for Google or other third-party sites). If you provide your third-party account credentials to us or otherwise sign in to the Services through a third party site or service, you understand some content and/or information in those accounts (“Third Party Account Information”) may be transmitted into your account with us, and that Third Party Account Information transmitted to our Services is covered by this Privacy Policy. Certain information may be required to register with us or to take advantage of some of our features.

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, please indicate your preference by unsubscribing from all channels listed at https://headspin.io/privacy.

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.

If you click on a link to a third party website or service, a third party may also transmit cookies to you. Again, this Privacy Policy does not cover the use of cookies by any third parties, and we aren’t responsible for their privacy policies and practices. Please be aware that cookies placed by third parties may continue to track your activities online even after you have left our Services, and those third parties may not honor “Do Not Track” requests you have set using your browser or device.

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.

Protection of HeadSpin and Others:. We reserve the right to access, read, preserve, and disclose any information that we reasonably believe is necessary to comply with law or court order; enforce or apply our Terms of Use and other agreements; or protect the rights, property, or safety of HeadSpin, our employees, our users, or others.

 

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
  • location
  • 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 privacy@headspin.io.

Under California Civil Code Sections 1798.83-1798.84, California residents are entitled to contact us to prevent disclosure of Personal Information to third parties for such third parties’ direct marketing purposes; in order to submit such a request, please contact us at privacy@headspin.io

 

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 support@headspin.io. 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 privacy@headspin.io, and we will try to resolve your concerns.

 

Copyright Dispute Policy

Effective date: February 5, 2019

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.

Remember that your use of Headspin’s Services is at all times subject to the Terms of Use, which incorporates this Copyright Dispute Policy. Any terms we use in this Policy without defining them have the definitions given to them in the Terms of Use.

  1. 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):
    1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
    2. Identification of works or materials being infringed;
    3. 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;
    4. Contact information about the notifier including address, telephone number and, if available, email address;
    5. 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
    6. 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.
  2. 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:
    1. A physical or electronic signature of the content provider;
    2. 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;
    3. 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
    4. 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 SUPPORT

1.1 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 E. 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 RESPONSIBILITIES

2.1 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.

2.7 Customer will be responsible for maintaining the security of Customer's account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer's knowledge or consent. Customer further will not use an anonymizing proxy or otherwise, and agrees not to indirectly or directly use Services in a manner that violates any law or regulation, impersonates any person, entity or location, accesses any site or service in violation of any policy restricting your access to such site or service, or for any purpose other than the proper testing or validation of mobile applications and web sites.

2.8 Customer further acknowledges, agrees to and is bound by any Terms of Service and Privacy Policy on SP’s website (as they may be updated from time to time), except to the extent expressly and directly in conflict with the terms hereof.

2.9 Customer acknowledges and agrees that the Services may operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). SP is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. SP does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

3. CONFIDENTIALITY

3.1 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 RIGHTS

4.1 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 FEES

5.1 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, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.

6. TERMINATION

6.1 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 limitations of

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 SECURITY

7.1 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 DISCLAIMER

8.1 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 LIABILITY

9.1 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 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 F, WHICH IS INCORPORATED HEREIN BY THIS REFERENCE.

10. U.S. GOVERNMENT MATTERS

10.1 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. MISCELLANEOUS

11.1 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 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 Maintenance

1.1 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:
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

Response Time

Mean Time to Restore

SEVERITY LEVEL 1: Major Service Fault

-              Device not accessible

-              Device malfunction

-              SIM related inaccessibility

-              Network or VPN issues

< 30

minutes

1 hour.

SEVERITY LEVEL 2: Performance Fault

-              Service is working, Device is accessible

-              Performance is slow

< 30

minutes

2 hours


 

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

< 30

minutes

4 hours

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

Maintenance Downtime.

< 30

minutes

Variable, depending on circumstances in the applicable geographic location

 

 

2.6 Service Level: Subject to the terms herein, during the Term, SP will use commercially reasonable efforts to make the SaaS Services available to Customer in accordance with the applicable Target Monthly Uptime Percentages in the table below for each Geo category, excluding any: (i) Scheduled Maintenance Downtime and downtime for emergency maintenance and (ii) unavailability of the Services due to the Exclusions described in the table below (collectively, the exclusions set forth in (i) and (ii) are the “Downtime Exclusions” and the uptime commitment set forth in this section is the “Uptime Commitment”):

 

 

Country/Geo Category

Target Monthly Uptime %

CATEGORY LEVEL 1:

-              NA: USA, Canada

-              Europe: UK, Germany, Spain, France, Italy, Norway, Sweden, Finland

-              Asia: Japan, Hong Kong

98% or higher

CATEGORY LEVEL 2:

-              Asia: India, Indonesia, Philippines, Vietnam, Thailand, Pakistan, Bangladesh, Nepal, China, Cambodia

-              LATAM: Brazil, Columbia, Peru, Mexico, Argentina,

-              Africa: South Africa, Tanzania, Nigeria, Angola, Rwanda

-              ME: UAE, Saudi Arabia, Jordan

95% or higher

CATEGORY LEVEL 3:

-              Asia: Myanmar, Vietnam

-              LATAM: Brazil, Columbia, Peru, Mexico, Argentina,

-              Africa: Ethiopia, Somalia, Kenya

-              ME: Iraq, Iran, Egypt, Libya, Sierra Leone

90% or higher

EXCLUSION: Any failure or delay caused by:

-     factors outside of SP’s reasonable control, including

without limitation, acts of God, acts of government,

N/A


 

3. Definitions. The following definitions shall apply to the SP UptimeCommitment
 
3.1 “Downtime" means the total number of minutes in the applicable month during which the SaaS Services are not accessible to or functional for the Customer’s or its authorized users’ normal use and Company was negatively impacted. Downtime is measured based on server side error rate. Downtime shall not include any Downtime

3.2 "Monthly Uptime Percentage" means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month. If Customer’s contract for the SaaS Services is for a partial month, then the numerator and denominator of the Monthly Uptime Percentage shall only include those days during which Customer received access to the Services.

3.3 “Scheduled Maintenance Downtime" means (i) the first day of each calendar quarter and (ii) those times where SP publishes on its website or notifies Customer of periods of Downtime at least three (3) business days’ prior to such Scheduled Maintenance Downtime. Scheduled Downtime shall not be considered Downtime for purposes of determining SP’s compliance with the Uptime Commitment.

THIS EXHIBIT E 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.



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