This End-User License Agreement ("Agreement") is a legal agreement between you (either an individual or a single entity) ("Licensee") and SpiceCSM LLC ("SpiceCSM"). SpiceCSM and Licensee may be referred to herein individually as a "Party" and collectively as the "Parties".
This Agreement governs Licensee's purchase and ongoing use of SpiceCSM Subscription Services. The General Terms and Conditions comprising the body of this Agreement set forth the general terms of such appointment. By accepting this Agreement, either by clicking a box indicating your acceptance or by executing an order for that references this agreement, you agree to the terms of this agreement. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use the SpiceCSM Subscription Services.
You may not access the SpiceCSM Subscription Services if you are SpiceCSM's direct competitor, except with SpiceCSM's prior written consent. In addition, you may not access the SpiceCSM Subscription Services for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.
"Control", for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Client Data" means information, data, records, correspondence, voice or video content provided by Licensee to SpiceCSM, or entered into SpiceCSM Subscription Services by Licensee, that may or may not be proprietary information of the Licensee or a third party.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Purchased Subscription Services" means SpiceCSM Subscription Services that Licensee or Licensee's Affiliates purchase under an Order Form.
"SpiceCSM Subscription Services" means the online, web-based applications and platform provided by SpiceCSM (SpiceCSM) via http://www.spicecsm.com that are ordered by Licensee.
"Third-Party Applications" means online, web-based applications and offline software products that are provided by third parties, interoperate with the SpiceCSM Subscription Services, and are identified as third-party applications.
"Users" means individuals who are authorized by Licensee to use the SpiceCSM Subscription Services, for whom SpiceCSM Subscription Services have been purchased, and who have been supplied user identifications and passwords by Licensee (or by SpiceCSM at Licensee's request). Users may include but are not limited to Licensee's employees, consultants, contractors and agents; or third parties with which Licensee transacts business.
"API" shall mean the application programming interface enabling calls to and from the SpiceCSM Subscription Services.
"Documentation" shall mean text and/or graphical materials, whether in print or electronic form, that describe the features, functions and use of the SpiceCSM Subscription Services, which materials are designed to facilitate use of the SpiceCSM Subscription Services and which are provided by SpiceCSM to Licensee in accordance with the terms of this Agreement.
"Intellectual Property" shall mean all worldwide rights arising under contract, statutes, or common law, whether or not perfected, associated with (1) patents and patent applications; (2) works of authorship, including copyrights, mask works, moral rights, and neighboring rights; (3) the protection of trade and industrial secrets and confidential information; (4) any rights analogous to those set forth herein and any other proprietary rights relating to intangible or intellectual property now existing or later recognized in any jurisdiction; and (5) divisions, continuations, renewals, reissuances, reexaminations, applications and registrations, and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
"SpiceCSM Data" means any aggregated or non-personally identifiable technical data, information, statistics or analytics gathered or generated by SpiceCSM through use of the SpiceCSM Subscription Service, which SpiceCSM collects and gathers periodically, as part of providing the SpiceCSM Subscription Service.
"SpiceCSM Technology" means SpiceCSM proprietary technology including SpiceCSM Subscription Services, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and related Intellectual Property rights throughout the world (whether owned by SpiceCSM or licensed to SpiceCSM from a third party) and improvements written, invented, made or conceived by SpiceCSM with respect to the SpiceCSM Subscription Services.
Subject to the terms and conditions contained in this Agreement, SpiceCSM hereby grants to Licensee during the Term (i) a non-exclusive, non-transferable right to access the SpiceCSM Technology for use of the SpiceCSM Subscription Services; and (ii) a non-exclusive, non-transferable and non-sublicensable right to make a reasonable number of copies of the Documentation solely to provide support for Licensee's authorized use of the SpiceCSM Subscription Service.
Subject to the terms and conditions herein, Licensee shall be permitted to distribute access to the SpiceCSM Subscription Services to Users. Licensee acknowledges and agrees that any act or omission of Users in connection with use of, or access to the SpiceCSM Subscription Services, which act or omission would constitute a breach of this Agreement if undertaken by Licensee, shall be considered a material breach by Licensee hereunder. Except as expressly provided in this Agreement, Licensee shall not distribute, market, sublicense, assign, sell, lease, rent, convey or otherwise transfer, or pledge as security or otherwise encumber, the rights and licenses granted hereunder with respect to the SpiceCSM Subscription Services, the SpiceCSM Technology and the Documentation.
Licensee shall not use the SpiceCSM Technology for any purpose other than the provision of the SpiceCSM Subscription Services, except with the prior written consent of SpiceCSM. Licensee will not (i) copy or duplicate the SpiceCSM Technology; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the SpiceCSM Technology is compiled or interpreted and Licensee acknowledges that nothing in this Agreement will be construed to grant Licensee any right to obtain or use such source code; (iii) modify the SpiceCSM Subscription Services, the Documentation or create any derivative product from any of the foregoing, except with the prior written consent of SpiceCSM; or, (iv) except as otherwise expressly permitted in this Agreement, assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Licensee's rights under the licenses granted. Licensee will ensure that its use of the SpiceCSM Technology, SpiceCSM Subscription Services and the Documentation materially complies with all applicable laws, statutes, regulations or rules promulgated by governing authorities having jurisdiction over the Parties or the SpiceCSM Subscription Services.
This Agreement does not transfer from SpiceCSM to Licensee or User any SpiceCSM Technology or SpiceCSM Data. Except as expressly set forth herein, Licensee does not acquire any right in SpiceCSM Technology or SpiceCSM Data whether by implication, estoppel or otherwise. All right, title and interest in and to any SpiceCSM Technology and SpiceCSM Data will remain solely with SpiceCSM. Except for rights expressly granted herein, this Agreement does not transfer from Licensee to SpiceCSM any Licensee Intellectual Property and all right, title and interest in and to Licensee Intellectual Property will remain solely with Licensee. Notwithstanding anything to the contrary in this Agreement, SpiceCSM will not be prohibited or enjoined at any time by Licensee from utilizing any skills or knowledge of a general nature acquired during the course of providing the SpiceCSM Subscription Services including without limitation, information publicly known or available or that would reasonably be acquired in similar work performed for another client of SpiceCSM.
If Licensee installs or enables Third-Party Applications including database products or services for use with the SpiceCSM Subscription Services and/or SpiceCSM Technology, Licensee acknowledges that SpiceCSM may allow providers of those Third-Party Applications to access Client Data as required for the interoperation of such Third-Party Applications with the SpiceCSM Subscription Services. SpiceCSM shall not be responsible for any disclosure, modification or deletion of Client Data resulting from any such access by Third-Party Application providers. Additionally, Licensee shall have the necessary rights of access to, use or, and/or interoperability with such Third-Party Applications.
SpiceCSM will make available to Licensee the use of the features and functions of the SpiceCSM Subscription Services purchased by Licensee and will provide Licensee access to the Documentation. SpiceCSM will specify to Licensee procedures according to which Licensee may establish and obtain access to, and use of, the SpiceCSM Subscription Services through the SpiceCSM Technology, including, without limitation, provision of any access codes, passwords, technical specifications, connectivity standards or protocols, or any other relevant procedures, to the limited extent any of the foregoing may be necessary to enable Licensee to provide access to the features and functions of the SpiceCSM Subscription Services through the SpiceCSM Technology for use by Users as contemplated herein (collectively, the "Access Protocols"). Licensee acknowledges that this Agreement grants certain rights to access the SpiceCSM Subscription Services, as hosted by SpiceCSM, but nothing in this Agreement herein may be construed to require delivery of a copy of the SpiceCSM Subscription Services code (in either object or source code form) or to grant Licensee any right to obtain such a copy.
SpiceCSM shall, at its own expense, provide for the installation of the SpiceCSM Subscription Services on one or more network computer servers (any such servers, collectively, the "Application Server"). SpiceCSM shall bear sole responsibility for the operation and maintenance of the Application Server hardware, its operating system and/or its platform software, necessary for, the operation and functioning of the Application Server.
SpiceCSM shall be permitted to enter into an arrangement with one or more third parties for the performance of SpiceCSM's obligations under this section (SpiceCSM Responsibilities and Obligations), whereby any such third party may install the SpiceCSM Subscription Services, own, operate or maintain the Application Server, or undertake to manage the Application Server. In the event that SpiceCSM so subcontracts its hosting obligations pursuant to this Section, Licensee acknowledges and agrees that in the event of a third party hosting the SpiceCSM Subscription Services, such third party's service levels and use policies may apply. If applicable, SpiceCSM will reasonably make this information available to Licensee.
Licensee agrees to refrain from any misleading or deceptive conduct and/or from making false representations in relation with the SpiceCSM Subscription Services and/or its relationship with SpiceCSM, including without limitation false advertising, making representations, promises or warranties on SpiceCSM's behalf or claiming ownership of the SpiceCSM Subscription Services, SpiceCSM Data, SpiceCSM Technology, or the Documentation.
Licensee shall (i) as between Licensee and SpiceCSM, be solely responsible for the accuracy, quality, integrity and legality of Client Data and of the means by which Licensee acquired Client Data; (ii) prevent unauthorized access to or use of the SpiceCSM Subscription Services, and upon becoming aware notify SpiceCSM promptly of any such unauthorized access or use (including preventing access to any User if such User is a direct competitor of SpiceCSM, unless SpiceCSM gives prior written consent to such access), (iii) use the SpiceCSM Subscription Services only in accordance with the Documentation and applicable laws and government regulations; (iv) maintain, at its expense, an adequate place or places of business and sufficiently trained personnel (a) for training Users in the use of SpiceCSM Subscription Services, and (b) to otherwise meet its obligations hereunder; (v) pay all expenses incurred by Licensee in the performance of its duties under this Agreement, and (vi) conduct its business so as to maintain and increase the goodwill and reputation of SpiceCSM and to reflect favorably on the Parties and the SpiceCSM Subscription Services at all times. Licensee agrees that it is solely responsible for the Client Data.
Licensee agrees and accepts that SpiceCSM bears no responsibility for creating backup copies and replacing any Client Data posted or stored on the SpiceCSM Subscription Services or provided to SpiceCSM. Licensee understand and agrees that the Client Data submitted by Licensee will be hosted in the country where SpiceCSM's cloud infrastructure is located. To the extent and in such manner as SpiceCSM may reasonably request, Licensee shall, at its own expense, provide assistance to SpiceCSM, including, but not limited to, by means of access to, and use of, Licensee facilities and Licensee equipment, as well as by means of assistance from Licensee personnel, as may be necessary to enable SpiceCSM to perform its obligations hereunder, including, without limitation, any obligations with respect to provision of any professional services (e.g., customization or configuration) hereunder.
Each Party to this Agreement acknowledges that it may receive Confidential Information of the other Party. For purposes of this Agreement, "Confidential Information" means any information, process, technique, algorithm, computer programs, design, drawing, formula, test data, business development and marketing plans and concepts, records and files, financial data and budgetary information, income or sales data or projections, customer lists, facilities, suppliers, plans, or market analysis or other information supplied by one Party to the other that is marked as "confidential" or "proprietary" (or like designation) by the disclosing Party or, if orally or visually disclosed, is designated as confidential when disclosed, and is promptly confirmed as such in writing. Additionally, the SpiceCSM Technology and the terms and Conditions of this Agreement shall be considered the Confidential Information of SpiceCSM. Each Party agrees to hold the Confidential Information of the other Party in confidence and not to disclose such Confidential Information to any third party without the written consent of the other Party, except to that Party's employees, consultants, and contractors (excluding third-party hosting providers) who have a need to know the information in order for the Party to fulfill its obligations or exploit its rights hereunder provided that such employees, consultants, and contractors will have agreed to be bound by substantially similar confidentiality obligations as those contained in this Agreement. Each Party further agrees not to use the other Party's Confidential Information for any purpose other than in connection with its performance under this Agreement.
The term "Confidential Information" does not include information which the receiving Party can demonstrate by competent proof is now, or hereafter becomes, through no act or failure to act on the part of the receiving Party, generally known or available; known to the receiving Party at the time of receiving such information as evidenced by its records; hereafter furnished to the receiving Party by a third party, as a matter of right and without restriction on disclosure; the subject of written permission to disclose provided by the other Party; is independently developed by the receiving Party without use of the disclosing Party's Confidential Information, or disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided however, that the receiving Party will provide reasonable advance notice thereof to enable the disclosing Party to seek a protective order to otherwise minimize such disclosure.
Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
Licensee further represents and warrants (i) that it has the right to disclose and provide to SpiceCSM any data provided through use and access of the SpiceCSM Subscription Services, and that no materials of any kind submitted as or otherwise posted, transmitted, or shared on or through the SpiceCSM Subscription Services will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material; and (ii) that Licensee's use of and access to the SpiceCSM Subscription Services complies with all applicable laws, rules and regulations.
DISCLAIMER. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES IN THIS SECTION, THE SPICECSM SUBSCRIPTION SERVICES ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Licensee agrees to hold harmless, indemnify, and, at SpiceCSM's option, defend SpiceCSM, its directors, officers, employees, contractors and agents, from and against any losses, liabilities, expenses, costs (including reasonable attorneys' fees) or damages resulting from (i) Licensee's and/or any User's gross negligence or willful misconduct; (ii) a breach by Licensee of its obligations under this Agreement; (iii) any act or omission of User including without limitation negligence; (iv) a breach by Licensee of its warranties including but not limited to those provided in this Agreement, and (v) any claim, suit or action brought by a User provided that Licensee will not settle any third-party claim against SpiceCSM unless such settlement completely and forever releases SpiceCSM from all liability with respect to such claim or without SpiceCSM's prior written consents to such settlement, and further provided that SpiceCSM will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
EXCEPT FOR A BREACH OF A PARTY'S OBLIGATIONS OF CONFIDENTIALITY UNDER THIS AGREEMENT OR AN OBLIGATION OF A PARTY TO PROVIDE INDEMNIFICATION PURSUANT TO THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY UNDER THIS AGREEMENT FOR ANY LOSS OF DATA, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, LOSS OF PROFIT, BUSINESS REVENUE, GOODWILL OR ANTICIPATED SAVINGS WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, ARISING FROM ANY MATTER RELATING TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT SHALL SPICECSM'S LIABILITY TO LICENSEE FOR ANY CLAIM UNDER THIS AGREEMENT THE TOTAL FEES RECEIVED FROM CLIENT IN THE THREE MONTHS' PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
SpiceCSM will not be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay, failure in performance or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications or Internet services or network provider services, failure of equipment, software, and/or systems which are beyond its reasonable control and other catastrophes or any other occurrences which are beyond its reasonable control.
Neither Party shall transfer or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of the other Party; provided, however, either Party may assign this Agreement in the event of any merger, consolidation, or any sale of all or substantially all of such Party's assets or stock.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York (without giving regard to that jurisdiction's choice of law principles). For the purposes of claims brought under this Agreement, each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the State and Federal Courts in New York.
This Agreement and any other documents attached hereto and/or incorporated by reference herein, shall constitute the entire agreement between SpiceCSM and the Licensee, and shall supersede any and all prior agreements and understandings between SpiceCSM and Licensee, whether written or verbal.
In making and performing this Agreement, Licensee and SpiceCSM act and shall act at all times as independent contractors, and nothing contained in this Agreement shall be construed or implied to create an agency, partnership or employer and employee relationship between them. At no time shall either Party make commitments or incur any charges or expenses for, or in the name of, the other Party.
For purposes of any provision of this Agreement requiring notice to be given or received, the Parties agree that the notices must be in writing, signed and delivered either in person, by nationally recognized express courier, by public postal service for which a delivery receipt is obtained or by electronic means with a delivery receipt. All notices must be delivered to the address which the receiving Party has most recently designated for itself via proper notice; as of the Effective Date, the Parties' respective addresses for purposes of giving notice will be those set forth on the first page of this document. Notices will be deemed effective only when actually received, or when delivery at the proper address has been confirmed by written evidence, such as a signature of the recipient given to an express courier or by automatic electronic receipt confirming delivery. Notices may be given effectively via facsimile transmission, but only if receipt is confirmed by return fax or other written confirmation, including confirmation by email.
Licensee shall comply with, and shall, at SpiceCSM's request, demonstrate compliance with all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority. Licensee shall not export or re-export, or allow the export or re-export of any product, technology or information it obtains pursuant to this Agreement (or any direct product thereof) in violation of any such laws, embargoes, restrictions or regulations. Licensee shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to the export or re-export to Licensee in compliance with all applicable laws and regulations prior to shipment thereof. Licensee shall indemnify SpiceCSM from and against any and all violations of this provision.
This Agreement does not confer any benefits on any third party.
SpiceCSM LLC
51 Main Street
Suite 100
Potsdam, NY 13676
