Effective Date: November 30, 2020
Welcome to HeadSpin! Please read on to learn the terms, rules and restrictions (collectively “Terms”) that govern Company’s use of our products, services and applications (collectively the “Services”).
These Terms and Conditions (“Terms”) are a binding contract between Company and HeadSpin, Inc. (collectively, “HeadSpin,” “We,” “Our,” and “Us”). Company’s use of the Services in any way means that it agrees to all of these Terms, and these Terms will remain in effect while Company uses the Services, and with respect to those terms and conditions which are meant to survive the termination of Company’s use of the Services, will remain in effect after Company ceases use of the Services.
1.2 What about my privacy?
1.3 Rules regarding Company’s use of the Services
All use of the Services by Company, its employees, agents, and subcontractors shall comply with the Terms. All Company account details, passwords, keys, and other authentication codes are granted to Company solely for Company’s own use, and Company shall keep all such items secure and confidential. Company shall prevent, and shall be fully liable to HeadSpin for, any damage to HeadSpin occurring via Company’s HeadSpin account(s) or in any other matter related to Company’s computer and other equipment. Company shall immediately notify Us upon becoming aware of any such unauthorized use or of any breach, actual or suspected, in its computer network. If applicable, Company shall be fully liable for any misuse relating to HeadSpin’s mobile devices, equipment or otherwise that are used by Company to use and access the Services.
1.4 Device Availability
Company shall be given access to the devices for testing in connection with the Services upon availability of devices in the (shared) device pool. There are a set number of devices located in various regions globally used for testing in connection with the Services. Device availability is on a first come first serve basis and there are no guarantees that device will be available immediately.
1.5 Trademark Usage
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. 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 these Terms or any other agreement. Company will have the right to decline any use of such names, trademarks and logos by HeadSpin by providing written notice to HeadSpin. Please contact Us at firstname.lastname@example.org with regards to any inquiries around Company’s trademark use.
1.6 Email Notifications
HeadSpin may occasionally reach out directly to Company via email or otherwise to inquire about service offerings, support features and other related products, or to give updates regarding the Company’s current subscription. Company shall have the right to opt out of these email notices at any given point.
2.1 Internal Use
2.2 Use Restrictions and Limitations
Company’s use of the Services is subject to the following additional restrictions:
Company represents, warrants, and agrees that it will not use the Services or interact with the Services in a manner that:
In order to protect the Services from being misused or used to harm someone, HeadSpin reserves the right to take appropriate measures when the Services are being used contrary to these Terms, their intended use and/or applicable laws. Company agrees that HeadSpin may terminate Company’s account, without providing a refund for Services already paid, if it misuses the Service. We further reserve the right to refuse to provide Services to any user at any time, at our sole discretion.
2.3 What are Company’s rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data points, key performance indicators, test results, performance metrics, testing analytics, articles, photos, images, illustrations, and any other are protected by copyright and/or other intellectual property laws and are the exclusive ownership of HeadSpin (collectively “Content”). Company promises to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content it accesses through the Services, and Company 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 it, (i) without the prior written consent of the owner of that Content or (ii) in a way that violates someone else’s (including HeadSpin’s) rights.
Company understands and acknowledges that HeadSpin owns the Services and all rights, including, without limitation, intellectual property rights, associated with the Services. Company will not modify, publish, transmit, participate in the transfer, assignment, lease or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.
Company may not use any HeadSpin trademarks, trade dress, or any brand identifier including HeadSpin Local™, HeadSpin, Inc.™, or any affiliated HeadSpin brand or associated denomination without HeadSpin’s prior written consent, in its sole discretion. At no point will Company advertise, engage in activities, or promote HeadSpin products, services, brand, or goodwill without HeadSpin’s prior written consent, in its sole discretion.
2.4 Additional Terms Related to Use of the Services?
Company represents and warrants that it has the right to access and use the Services for the purposes of testing, analyzing, and engaging in performance monitoring of the applicable applications, plug-ins, audio-visual representations, and the like. Company will be strictly responsible for any and all content that is tested and analyzed through the use of the Services, and Company represents and warrants that it has all rights necessary to do so.
Company will keep all of its registration information accurate and current. Company is responsible for all of its activity in connection with the Services.
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 Company interacts 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, Company releases and holds Us harmless from any and all liability arising from Company’s use of any third party website or service.
Company’s 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 Company and such organizations and/or individuals. Company should make whatever investigation Company feels necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. Company agrees 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, Company agrees that HeadSpin is under no obligation to become involved. In the event that Company has a dispute with one or more other users, Company releases 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 Company is a California resident, Company shall and hereby does 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.”
2.5 Will HeadSpin ever change the Services?
We are 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 will try to give Company notice when we make a material change to the Services that would adversely affect Company, but this isn’t always practical. Similarly, We reserve the right to remove any Content from the Services at any time, for any reason, in our sole discretion, and without notice.
2.6 Company Data
HeadSpin is not responsible for, and undertakes no liability with respect to, any Company data, cache, content, application (pre-release, production version, or otherwise) that Company uploads, downloads, installs, stores, shares, or distributes on the platform in connection with the use of the Services, Company is solely responsible for removing all such data, caches, content and applications prior to or at the time of signing out of the device. HeadSpin will not be liable for any loss, corruption, deletion, removal or sharing with or access by a third party of the Company data, caches, content, or applications and Company fully releases and holds harmless HeadSpin from any damages arising as a result of such loss, corruption, deletion, removal, sharing or access.
2.7 Third Party Data
HeadSpin is not responsible for, and undertakes no liability with respect to, any third party data that Company downloads, uploads, stores, shares, or distributes on the platform in connection with the use of the Services.
2.8 Customer’s Personal Data
HeadSpin provides the Services under the assumption that the Company shall not upload or store any of its customer or end user sensitive data or personally identifiable information (this includes but is not limited to SSN, IP address, email address, banking information, and other related info) on the platform. Company is solely responsible in the event that there is data breach, loss, or corruption with regards to this customer data.
3.1 Does HeadSpin cost anything?
Yes. HeadSpin offers services for subscription (“Subscription”) on monthly or annual terms. HeadSpin requires payment of Subscription fees at the time of purchase. HeadSpin reserves the right to change its price list and to institute new charges at any time including for renewals, upon notice to Company, which may be sent by email or posted on the HeadSpin website. The making by Company of additional orders for services, as well as its use of the Services following such notification, constitutes Company’s acceptance of any new, modified, or increased charges.
3.2 Subscription Models
HeadSpin offers annual and monthly subscriptions to the Services. Depending on Company’s choice, it will be charged a Subscription fee (“Subscription Fee”) on an annual or monthly basis. Company’s initial payment will be charged at the time it orders Services. Thereafter, Subscription Fees will be charged, in advance, to the credit card Company provided upon enrollment in the Services in annual or monthly installments, depending on the payment plan selected at the time of subscription. Subscription Fees are non-refundable. As described below, Subscriptions are automatically renewed at the end of then-current Subscription term unless Company provides prior written notice of its intent not to renew. Company shall be charged for Subscription Fees at the applicable standard rate at time of renewal. HeadSpin shall provide advance notice to Company in the event that there are Subscription Fee changes or increases at time of renewal.
– Annual Subscription – Annual Subscriptions are automatically renewed at the end of the initial twelve (12) month term. If Company does not wish to renew its Subscription, Company must provide written notice of its intent not to renew at email@example.com prior to the renewal date. Renewal Subscriptions are non-refundable after the renewal date has started. We will provide two advance notices that Company’s Subscription term is about to expire: 1) a 6-week (or more) advance notice and 2) a 3-week (or more) advance notice before the auto renewal date comes into effect. Company is responsible for providing HeadSpin with the correct email address and other related information for delivery of notices.
– Monthly Subscription – Monthly Subscriptions are automatically renewed at the end of each month for an additional month. Company must provide written notice of its intent not to renew at firstname.lastname@example.org prior to the renewal date. Renewal Subscriptions are non-refundable after the renewal date has started. We will provide at least 1-week’s advance notice before the auto renewal date comes into effect. Company is responsible for providing HeadSpin with the correct email address and other related information for delivery of notices.
– Free Trials – Company can subscribe to a free trial account for the Services subject to HeadSpin’s approval. If Company is participating in a free trial, its Subscription will automatically be converted to a monthly Subscription at the end of the trial period unless Company provides written notice of its intent not to renew at email@example.com prior to the date Company’s monthly paid Subscription starts. We will provide at least 1-week’s advance notice before converting your free trial to a monthly Subscription. The Terms set out in this Agreement apply to the Services as well as to any free trials, unpaid use of the Services, or pre-release use of HeadSpin products or services.
HeadSpin may change the Subscription Fee upon notice to Company, but, with respect to renewals of Company’s Subscription, such change will only take effect once Company’s Subscription has ended. If Company does not wish to pay the new Subscription Fee, it must provide notice of its intent not to renew, as described above. Company may cancel its Subscription at any time, but no refunds will be granted for Subscription Fees paid.
4.1 Stripe Payment Processing
To use HeadSpin Services, Company must provide Us with an acceptable payment method at the time of enrollment. HeadSpin accepts Visa, MasterCard, Discover, American Express, Google Pay, Apple Pay, among others (this is subject to change). All payment processing is generated and processed through Stripe. All Stripe Payment methods may be found here. Note that all payments are securely processed over the STRIPE HTTPS and Company’s card information never touches our servers. Stripe’s Terms and Conditions may be found here and Company is subject to these terms. Company is responsible for updating its payment details as required in order to ensure timely payment of its obligations to HeadSpin. In the event of any payment disputes made through Stripe, HeadSpin has the discretion to disclose to Stripe any applicable Company information to dispute the claim including data logs, Company login information, org id, user id, and other related documentation to challenge the dispute.
Subscription Fees do not include any sales or other applicable taxes, levies, duties, or similar assessments assessable by any jurisdiction. Each party is responsible for their own tax obligations. If HeadSpin has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer, unless HeadSpin is provided with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.1 Termination for Cause
In the event of any actual or threatened breach of this Agreement by Company, HeadSpin may terminate the Services immediately without prior written notice to Company and Company will not be entitled to a refund of any portion of its Subscription Fees. At HeadSpin’s discretion, HeadSpin may provide additional Service minutes if there is extensive Service downtime or if the Services become temporarily unavailable to You (as determined by HeadSpin).
5.2 Termination for Convenience
Company may terminate its Subscription at any time; provided that it will not be entitled to any refund as a result of such termination. HeadSpin may terminate Company’s Subscription for any reason upon 30 days’ prior written notice, in which case, HeadSpin will refund to Company a pro rata portion of prepaid Subscription Fees.
5.3 Suspension of Services
Company’s Subscription entitles it to a maximum of 600 minutes of access to Services per month (the “Minutes Restriction”). All portions of a minute of use will be rounded up to the next highest minute. In the event Company exceeds the Minutes Restriction, We reserve the right to suspend Company’s Subscription for the remainder of the month, or, in Our sole discretion, terminate Company’s access to the Services. Unused minutes may not be carried over to the following month.
Provisions that, by their nature or in accordance with law, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation Company has to pay Us or indemnify Us, any limitations on Our liability, any terms regarding ownership of intellectual property rights, and terms regarding disputes between HeadSpin and Company.
5.5 What is the Refund Policy?
Currently, any payments incurred and charged on Company’s card or through any alternative means of payment are non-refundable. Refer to section 5. Termination and Suspension of Services for additional details.
5.6 What if Company wants to stop using HeadSpin?
As described above, Company is free to cancel its Subscription at any time, by contacting Us at firstname.lastname@example.org. Remember, Company is not entitled to a refund of prepaid Subscription Fees in the event it terminates its Subscription.
If Company decides to cancel its subscription, the account termination may result in destruction or deletion of any content associated with its account, so keep that in mind before deciding to terminate. We will try to provide advance notice to Company prior to terminating its account so that Company is able to retrieve any important content (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 Company has deleted its 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.
5.7 Payment Disputes
Company must notify Us of any payment dispute in writing sent to firstname.lastname@example.org. We are more than happy to assist with any questions Company may have around incurred charges as shown on its invoice or billing statement. Note that any payments validly processed and approved through the system for the Subscription period are non-refundable. We expect our customers to engage in good faith when they bring forth a dispute. Company must bring any payment disputes to Our attention within twenty (20) days of the date of invoice to which such dispute relates. Failure to notify Us in writing within such twenty (20) day period will constitute Your binding agreement to the amounts set forth in the applicable invoice. Please address any disputes through email@example.com before you attempt to resolve through Stripe. This will allow Us to assist you in the best manner possible.
In the event of any payment disputes made through Stripe, HeadSpin has the discretion to disclose to Stripe any applicable Company information to dispute the claim including data logs, Company login information, org id, user id, and other related documentation to challenge the dispute.
6.1 Suspicion of Unauthorized, Fraudulent, or Other Illegal Use
We may refuse, condition, or suspend access to the Services if HeadSpin believes that (1) (i) Company has violated these Terms; (2) has engaged in any unauthorized, fraudulent or illegal act or omission; or (3) Company has acted in a way that HeadSpin believes exposes it or others to unacceptable risk. If We suspect or know that Company is using or has used the Services for unauthorized, fraudulent, or illegal purposes, We may share any information related to such activity with the appropriate financial institution, regulatory authority, or law enforcement agency or other applicable governing body in such manner as We deem appropriate in Our sole discretion. This information may include information about Company, its HeadSpin account, its customers, and any transactions made through Company’s use of Services.
Company agrees to notify us immediately in the event it discovers or has reason to believe that there has been an occurrence of any unauthorized, fraudulent or other illegal use of the Services or Company’s accounts.
7.1 Warranty Disclaimer
Neither HeadSpin nor its licensors or suppliers makes any representations or warranties concerning any content or the 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.
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.
Confidential Information. Per these Terms, Parties define “Confidential Information” to mean any of the information disclosed under the Terms herein that is designated by HeadSpin as proprietary or confidential, or that should be reasonably understood to be proprietary or confidential due to its nature or the circumstances of its disclosure. HeadSpin’s Confidential Information includes any technical (including but not limited know-hows, intellectual property disclosures, technical specifications), pricing, business-related, financial, test data, testing analytics, performance metrics, or performance information about the Service or related services, as well as these Terms.
Obligations. As receiving party, each party will (a) hold in confidence and not disclose Confidential Information to third parties except as permitted in these Terms, and (b) only use Confidential Information to fulfill its obligations and exercise its rights in these Terms. The receiving party may disclose Confidential Information to its employees, agents, contractors, subcontractors, and other representatives having a legitimate need to know such Confidential Information, provided the receiving party remains responsible for their compliance with this Confidential Information and such parties are bound to confidentiality obligations no less protective than this Confidential Information.
Exclusions. These confidentiality obligations do not apply to information that the receiving party can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under these Terms; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information if required by law, subpoena, or court order, provided (if permitted by law) it notifies the disclosing party in advance and cooperates in any effort to obtain confidential treatment.
Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Confidential Information.
7.3 Force Majeure
HeadSpin is not liable for any delay or failure to perform any obligation under these Terms or any order due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster.
7.4 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 COMPANY OR TO ANY 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 COMPANY 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 COMPANY. MOREOVER, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, HEADSPIN SHALL NOT BE HELD BE LIABLE AS A RESULT OF COMPANY’S DIRECT OR INDIRECT INVOLVEMENT IN FRAUDULENT ACTIVITY, IDENTITY THEFT, AND OTHER RELATED ILLEGAL CONDUCT AS IT RELATES TO THE TRANSACTION PROCESS EITHER THROUGH DIRECT PAYMENT VIA CREDIT CARD, AUTOMATED CLEARING HOUSING, OR AS DONE THROUGH A THIRD PARTY PAYMENT PROCESSOR.
To the fullest extent allowed by applicable law, Company agrees to indemnify and hold HeadSpin, its affiliates, officers, directors, agents, employees, licensors, partners and contractors harmless from and against any and all known or unknown claims, liabilities, damages (actual and consequential), losses and expenses (including taxes, fees, fines, penalties, interest, reasonable attorney fees and disbursements) arising from or in any way related to any third party claims relating to (a) Company’s use of the Services (including any actions taken by a third party using Company account), and (b) Company’s 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 Company’s account (provided that failure to deliver such notice shall not eliminate or reduce Company’s indemnification obligations hereunder). Company shall cooperate as fully as reasonably required in the defense of the Claim.
Company agrees not to assign or transfer any rights or obligations to a third party without the express written consent of HeadSpin.
7.7 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 Santa Clara 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.
COMPANY UNDERSTANDS AND AGREES THAT BY ENTERING INTO THESE TERMS, COMPANY AND HEADSPIN ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
The failure of either party 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. Company and HeadSpin agree that these Terms are the complete and exclusive statement of the mutual understanding between them, and that they supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. Company hereby acknowledges and agrees that it is not an employee, agent, partner, or joint venture of HeadSpin, and Company does not have any authority of any kind to bind HeadSpin in any respect whatsoever. There are no third party beneficiaries intended under these Terms.
Please address any questions, comments, or concerns regarding these Terms or the Services to firstname.lastname@example.org or ATTENTION: LEGAL at 3200 Ash St., Palo Alto, CA 94306.