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 firstname.lastname@example.org, phone 424-341-4323, or3200 Ash St., Palo Alto, CA 94306
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.
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 email@example.com.
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.
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.
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:
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
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!
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.
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
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.
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."
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.
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 firstname.lastname@example.org. 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.
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 email@example.com – 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.
These Terms apply to your use of all the Services, including the iPhone, iPad Touch, and iPad applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
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. 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).
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.
Effective date: February 5, 2019
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, 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.
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.
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.
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.
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:
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 firstname.lastname@example.org.
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 email@example.com
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 firstname.lastname@example.org. 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.
If you have any questions or concerns regarding our privacy policies, please send us a detailed message to email@example.com, and we will try to resolve your concerns.
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.
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.
1.1 Subject to the terms and conditions of this Agreement, WIPRO will provide THE RECEIVING PARTY with access to the Services through the internet. The Services are subject to modification from time to time at WIPRO’s sole discretion, for any purpose deemed appropriate by WIPRO. WIPRO will use reasonable efforts to give THE RECEIVING PARTY prior written notice of any such modification
1.2 WIPRO will undertake commercially reasonable efforts to make the Services available in accordance with the Support and Maintenance provisions. Notwithstanding anything to the contrary, WIPRO reserves the right to suspend THE RECEIVING PARTY’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event THE RECEIVING PARTY is in breach of this Agreement, including failure to pay any amounts due to WIPRO.
1.3 As part of the Services, WIPRO may provide THE RECEIVING PARTY with access to certain devices and other equipment (collectively, “Equipment”), which Equipment shall be included within the meaning of “Services” hereunder. THE RECEIVING PARTY 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. THE RECEIVING PARTY 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 THE RECEIVING PARTY hereunder does not constitute a sale of the Equipment. All Equipment shall (i) remain personal property of WIPRO; (iii) be kept free of liens and encumbrances by THE RECEIVING PARTY; and (iii) not be modified in any manner by THE RECEIVING PARTY. WIPRO shall retain all right, title and interest in the Equipment, and THE RECEIVING PARTY shall treat and maintain the Equipment with the same degree of care as THE RECEIVING PARTY 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 WIPRO’s request or upon termination or expiration of this Agreement, THE RECEIVING PARTY shall immediately cease all use of the Equipment. THE RECEIVING PARTY shall execute all documents, or instruments evidencing Company’s ownership of the Equipment as Company may from time to time request. THE RECEIVING PARTY shall reimburse Company for, and indemnify Company against, any and all claims, losses, damages or costs resulting from THE RECEIVING PARTY’s breach of this Section.
2.1 Access to the Services may require the THE RECEIVING PARTY to install certain software applications. THE RECEIVING PARTY agrees to be bound by any End-User Software Agreements that govern the installation and use of such client software applications. If WIPRO authorizes THE RECEIVING PARTY to distribute any such application to its end user content customers (“End Users”), THE RECEIVING PARTY may do so only after effectively binding such End Users to any applicable End-User Software Agreements provided by WIPRO for the benefit of WIPRO.
2.2 THE RECEIVING PARTY 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 WIPRO shall have no liability for any action or inaction by THE RECEIVING PARTY in violation of the foregoing.
2.3 THE RECEIVING PARTY will cooperate with WIPRO in connection with the performance of this Agreement and any regulatory or governmental investigation or proceeding relating to THE RECEIVING PARTY’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 THE RECEIVING PARTY’s activity logs to WIPRO as reasonably necessary to perform support and maintenance obligations and respond to regulatory or governmental inquiries. THE RECEIVING PARTY will also cooperate with WIPRO in establishing a password or other procedures for verifying that only designated employees of THE RECEIVING PARTY have access to any administrative functions of the Services.
2.4 THE RECEIVING PARTY will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). THE RECEIVING PARTY may change the individual designated as Primary Contact at any time by providing written notice to WIPRO.
2.5 THE RECEIVING PARTY shall not upload or introduce any computer virus, malware or similar item (each of the foregoing, a “Virus”) into WIPRO’s computing or network environment. If THE RECEIVING PARTY transfers a Virus to WIPRO’s computing or network environments, it shall reimburse WIPRO for, and indemnify WIPRO against, any and all claims, losses, damages or costs resulting therefrom, including without limitation any costs incurred by WIPRO in connection with removal or recovery from the Virus, including all costs of labor for persons employed or engaged by WIPRO and all hardware replacement costs.
2.6 THE RECEIVING PARTY hereby agrees to indemnify and hold harmless WIPRO against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged or actual violation of the foregoing or otherwise from THE RECEIVING PARTY’s use of Services. Although WIPRO has no obligation to monitor the content provided by THE RECEIVING PARTY or THE RECEIVING PARTY’s use of the Services, WIPRO 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 THE RECEIVING PARTY will be responsible for maintaining the security of THE RECEIVING PARTY’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of THE RECEIVING PARTY account with or without THE RECEIVING PARTY’s knowledge or consent.
2.9 THE RECEIVING PARTY 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”). WIPRO 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. THE RECEIVING PARTY 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. WIPRO 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 THE RECEIVING PARTY and a third party provider is solely between THE RECEIVING PARTY and such third party provider and is governed by such third party’s terms and conditions.
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, WIPRO may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance.
3.3 THE RECEIVING PARTY acknowledges that WIPRO does not wish to receive any Proprietary Information from THE RECEIVING PARTY that is not necessary for WIPRO to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, WIPRO may reasonably presume that any unrelated information received from THE RECEIVING PARTY 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.
4.1 Except as expressly set forth herein, WIPRO 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 THE RECEIVING PARTY or any third party relating to the Service and/or the Software, which are hereby assigned to WIPRO. THE RECEIVING PARTY 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 THE RECEIVING PARTY any rights of ownership in or related to the Service or Software, or any intellectual property rights.
4.2 WIPRO will obtain and process content/data provided by or on behalf of THE RECEIVING PARTY (“Content”) only to perform its obligations under this Agreement. THE RECEIVING PARTY and its licensors shall (and THE RECEIVING PARTY 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 WIPRO 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”), WIPRO may (but is not required to) suspend activity hereunder with respect to that Content and THE RECEIVING PARTY will indemnify WIPRO from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
5.1 Subject to earlier termination as provided below, this Service Agreement is for the Term as specified in the applicable Order Form.
5.2 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.
5.3 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 liability.
6.1 WIPRO represents and warrants that it will not knowingly include, in any WIPRO software released to the public and provided to THE RECEIVING PARTY 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, WIPRO fails to comply with the warranty in this Section, THE RECEIVING PARTY may promptly notify WIPRO in writing of any such noncompliance. WIPRO will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide THE RECEIVING PARTY 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, THE RECEIVING PARTY may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
7. WARRANTY DISCLAIMER
7.1 THE SERVICES AND WIPRO PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. WIPRO (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.
8. U.S. GOVERNMENT MATTERS
8.1 Notwithstanding anything else, THE RECEIVING PARTY 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 THE RECEIVING PARTY 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 WIPRO 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.
9.1 The following will apply when ONPS Services are selected in the Order Form:
9.2 The THE RECEIVING PARTY server (and related or peripheral equipment and software) on which the WIPRO software for the Services is to be installed will constitute “THE RECEIVING PARTY Equipment” and will be dedicated exclusively to the Services. THE RECEIVING PARTY will not otherwise use or transfer any such THE RECEIVING PARTY Equipment until all Software has been permanently removed. THE RECEIVING PARTY will maintain this THE RECEIVING PARTY Equipment in good working order (including but not limited to backup, recovery, and reboot services as necessary). THE RECEIVING PARTY will have full responsibility for security of all THE RECEIVING PARTY 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 WIPRO will have any direct or indirect access to any Software.
9.3 THE RECEIVING PARTY acknowledges and agrees that WIPRO will at all times have access to THE RECEIVING PARTY 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 THE RECEIVING PARTY’s standard reasonable security procedures.
9.4 WIPRO will have no obligation to insure or be responsible for any loss or damage to property of any kind owned or leased by THE RECEIVING PARTY or its employees, contractors, and agents.
9.5 Upon any termination, THE RECEIVING PARTY will permit WIPRO to access the THE RECEIVING PARTY Equipment to remove all WIPRO property, including but not limited to Software.
9.6 THE RECEIVING PARTY will not allow any lien to attach to any Software, will not remove any notice WIPRO may apply to the THE RECEIVING PARTY Equipment indicating that the Software is not owned by THE RECEIVING PARTY and will publicly file any documents requested by WIPRO to such effect
Please contact Headspin’s Designated Agent at the following address:
3200 Ash Street
Palo Alto, CA 94306