SPRING
TERMS OF SERVICE
EFFECTIVE:
November 1, 2022
IMPORTANT, READ CAREFULLY : YOUR USE OF AND ACCESS TO
THE WEBSITE, PRODUCTS AND SERVICES, APPLICATIONS, AND/OR ASSOCIATED SOFTWARE
(COLLECTIVELY, THE “SERVICES”) OF SPRING TECHNOLOGIES CORP., A DELAWARE
CORPORATION, AND ITS AFFILIATES (“SPRING” OR “Spring”) IS CONDITIONED UPON YOUR
COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS, WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE
CLAIMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
BY CLICKING/CHECKING THE “I AGREE”
BUTTON/BOX, ACCESSING THE SPRING WEBSITE OR BY UTILIZING THE SPRING SERVICES
YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ALL EXHIBITS, ORDER FORMS,
AND INCORPORATED POLICIES (THE “AGREEMENT” OR “TOS”). THE SPRING SERVICES ARE
NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE
TERMS OF SERVICE.
SPRING will provide the
Services, and you may access and use the Services, in accordance with this
Agreement. SPRING may provide any of the Services hereunder through any of its
Affiliates. If You order Services through an on-line registration page or an
order form (each an “Order Form”), the Order Form may contain additional terms
and conditions and information regarding the Services you are ordering. Unless
otherwise expressly set forth in any such additional terms and conditions
applicable to the specific Service which You choose to use, those additional
terms are hereby incorporated into this Agreement in relation to Your use of
that Service.
System Requirements. Use of the Services
requires one or more compatible devices, Internet access (fees may apply), and
certain software (fees may apply), and may require obtaining updates or
upgrades from time to time. Because use of the Services involves hardware,
software, and Internet access, Your ability to access and use the Services may
be affected by the performance of these factors. High speed Internet access is
recommended. You acknowledge and agree that such system requirements, which may
be changed from time to time, are Your responsibility.
- DEFINITIONS. The following
definitions will apply in this Agreement, and any reference to the
singular includes a reference to the plural and vice versa.
“Affiliate” means, with respect to a Party, any entity that directly or
indirectly controls, is controlled by or is under common control with that
Party. For purposes of this Agreement, “control” means an economic or
voting interest of at least fifty percent (50%) or, in the absence of such
economic or voting interest, the power to direct or cause the direction of
the management and set the policies of such entity.
“End User” means any person or entity who uses the Services.
“Initial Subscription Term” means the initial subscription term for a
Service as specified in an Order Form.
“Service Effective Date” means the date an Initial Subscription Term
begins as specified in an Order Form.
“Renewal Term” means the renewal subscription term for a Service commencing
after the Initial Subscription Term or another Renewal Term as specified
in an Order Form.
“Taxes and Fees” and “Taxes or Fees” means all applicable sales, use,
environmental or regulatory taxes, VAT, fees, duties (including customs
duties), charges, surcharges or assessments levied on the provision of
Services to Customer (exclusive of any income tax imposed on SPRING).
“VAT” means any value added tax, and any other tax of a similar nature,
whether imposed in a Member State of the European Union in substitution
for, or levied in addition to, such tax, or imposed elsewhere, any Goods
and Services Tax, PIS/COFINS, any similar indirect Tax or any Tax
analogous thereto imposed in connection with, or otherwise relating to,
the Services rendered by SPRING to Customer.
“Your Data” means information provided to SPRING so that SPRING can
fulfill the terms of the Agreement and provide access to the Services
(e.g., company name, billing address, taxpayer ID number, VAT registration
number, contact name and information). You are solely responsible for the
accuracy of Your Data, and SPRING has no liability whatsoever for errors
and omissions in Your Data.
- SERVICES. SPRING will
provide the Services as described on the Order Form or in other locations,
and standard updates to the Services that are made generally available by SPRING
during the term. SPRING may, in its sole discretion, discontinue the
Services or modify the features of the Services from time to time without
prior notice.
- Beta Services. SPRING may, from
time to time, offer access to services that are classified as Beta
version. Access to and use of Beta versions may be subject to additional
agreements. SPRING makes no representations that a Beta version will ever
be made generally available and reserves the right to discontinue or
modify a Beta version at any time without notice. Beta versions are
provided AS IS, may contain bugs, errors or other defects, and Your use
of a Beta version is at Your sole risk.
- USE OF SERVICES AND YOUR
RESPONSIBILITIES. You may only use the Services pursuant to
the terms of this Agreement. You are solely responsible for Your and Your
End Users’ use of the Services and shall abide by, and ensure compliance
with, all Laws in connection with Your and each End User’s use of the
Services, including but not limited to Laws related to recording,
intellectual property, privacy and export control. Use of the Services is
void where prohibited.
- Registration Information. You may be
required to provide information about Yourself in order to register for
and/or use certain Services. You agree that any such information shall be
accurate. You may also be asked to choose a user name and password. You
are entirely responsible for maintaining the security of Your user name
and password and agree not to disclose such to any third party.
- Your Content. You agree that
You are solely responsible for the content (“Content”) sent or
transmitted by You or displayed or uploaded by You in using the Services
and for compliance with all Laws pertaining to the Content, including,
but not limited to, Laws requiring You to obtain the consent of a third
party to use the Content and to provide appropriate notices of third
party rights. You represent and warrant that You have the right to upload
the Content to SPRING and that such use does not violate or infringe on
any rights of any third party. Under no circumstances will SPRING be
liable in any way for any (a) Content that is transmitted or viewed while
using the Services, (b) errors or omissions in the Content, or (c) any
loss or damage of any kind incurred as a result of the use of, access to,
or denial of access to Content. Although SPRING is not responsible for
any Content, SPRING may delete any Content, at any time without notice to
You, if SPRING becomes aware that it violates any provision of this
Agreement, or any law. You retain copyright and any other rights You
already hold in Content which You submit, post or display on or through,
the Services.
- Recordings. You are
responsible for compliance will all recording laws. The host can choose
to record SPRING Meetings and SPRING Webinars. By using the Services, you
are giving SPRING consent to store recordings for any or all SPRING
meetings or webinars that you join, if such recordings are stored in our
systems. You will receive a notification (visual or otherwise) when
recording is enabled. If you do not consent to being recorded, you can
choose to leave the meeting or webinar.
- Prohibited Use. You agree that
You will not use, and will not permit any End User to use, the Services
to: (i) modify, disassemble, decompile, prepare derivative works of,
reverse engineer or otherwise attempt to gain access to the source code
of the Services; (ii) knowingly or negligently use the Services in a way
that abuses, interferes with, or disrupts SPRING’s networks, Your
accounts, or the Services; (iii) engage in activity that is illegal,
fraudulent, false, or misleading, (iv) transmit through the Services any
material that may infringe the intellectual property or other rights of
third parties; (v) build or benchmark a competitive product or service,
or copy any features, functions or graphics of the Services; or (vi) use
the Services to communicate any message or material that is harassing,
libelous, threatening, obscene, indecent, would violate the intellectual
property rights of any party or is otherwise unlawful, that would give
rise to civil liability, or that constitutes or encourages conduct that
could constitute a criminal offense, under any applicable law or regulation;
(vii) upload or transmit any software, Content or code that does or is
intended to harm, disable, destroy or adversely affect performance of the
Services in any way or which does or is intended to harm or extract
information or data from other hardware, software or networks of SPRING
or other users of Services; (viii) engage in any activity or use the
Services in any manner that could damage, disable, overburden, impair or
otherwise interfere with or disrupt the Services, or any servers or
networks connected to the Services or SPRING’s security systems. (ix) use
the Services in violation of any SPRING policy or in a manner that
violates applicable law, including but not limited to anti-spam, export
control, privacy, and anti-terrorism laws and regulations and laws
requiring the consent of subjects of audio and video recordings, and You
agree that You are solely responsible for compliance with all such laws
and regulations.
- Limitations on Use. You may not
reproduce, resell, or distribute the Services or any reports or data
generated by the Services for any purpose unless You have been
specifically permitted to do so under a separate agreement with SPRING.
You may not offer or enable any third parties to use the Services
purchased by You, display on any website or otherwise publish the
Services or any Content obtained from a Service (other than Content
created by You) or otherwise generate income from the Services or use the
Services for the development, production or marketing of a service or
product substantially similar to the Services.
- RESPONSIBILITY FOR END USERS. You are
responsible for the activities of all End Users who access or use the
Services through your account and you agree to ensure that any such End
User will comply with the terms of this Agreement and any SPRING policies.
SPRING assumes no responsibility or liability for violations. If You
become aware of any violation of this Agreement in connection with use of
the Services by any person, please contact SPRING at trust@springapp.com.
SPRING may investigate any complaints and violations that come to its
attention and may take any (or no) action that it believes is appropriate,
including, but not limited to issuing warnings, removing the content or
terminating accounts and/or User profiles. Under no circumstances will SPRING
be liable in any way for any data or other content viewed while using the
Services, including, but not limited to, any errors or omissions in any
such data or content, or any loss or damage of any kind incurred as a
result of the use of, access to, or denial of access to any data or
content.
- SPRING OBLIGATIONS FOR CONTENT. SPRING will
maintain reasonable physical and technical safeguards to prevent
unauthorized disclosure of or access to Content, in accordance with industry
standards. SPRING will notify You if it becomes aware of unauthorized
access to Content. SPRING will not access, view or process Content except
(a) as provided for in this Agreement and in SPRING’s Privacy Statement;
(b) as authorized or instructed by You, (c) as required to perform its
obligations under this Agreement; or (d) as required by Law. SPRING has no
other obligations with respect to Content.
- ELIGIBILITY. You affirm that
You are at least 16 years of age and are otherwise fully able and competent
to enter into the terms, conditions, obligations, affirmations,
representations, and warranties set forth in this Agreement, and to abide
by and comply with this Agreement. Your access may be terminated without
warning if we believe that You are under the age of 16 or are otherwise
ineligible.
- INTENDED USE; RESTRICTION ON USE
BY CHILDREN.
The Services are intended for business use. You may choose to use the
Services for other purposes, subject to the terms and limitations of this
Agreement. SPRING is not intended for use by individuals under the age of
16, unless it is through a School Subscriber (as that term is defined in
the Services Description) using SPRING for Education (K-12).
- CHARGES AND CANCELLATION. You agree that SPRING
may charge to Your credit card or other payment mechanism selected by You
and approved by SPRING (“Your Account”) all amounts due and owing for the
Services. All payments made by you to us under this Agreement will be made
free and clear of any deduction or withholding, as may be required by law.
If any such deduction or withholding (including but not limited to
domestic or cross-border withholding taxes) is required on any payment,
you will pay such additional amounts as are necessary so that the net
amount received by us is equal to the amount then due and payable under
this Agreement. We will provide you with such tax forms as are reasonably
requested in order to reduce or eliminate the amount of any withholding or
deduction for taxes in respect of payments made under this Agreement. SPRING
may change prices at any time, including changing from a free service to a
paid service and charging for Services that were previously offered free
of charge; provided, however, that SPRING will provide you with prior
notice and an opportunity to terminate Your Account if SPRING changes the
price of a Service to which you are subscribed and will not charge you for
a previously free Service unless you have been notified of the applicable
fees and agreed to pay such fees. You agree that in the event SPRING is
unable to collect the fees owed to SPRING for the Services through Your
Account, SPRING may take any other steps it deems necessary to collect
such fees from You and that You will be responsible for all costs and
expenses incurred by SPRING in connection with such collection activity,
including collection fees, court costs and attorneys’ fees. You further
agree that SPRING may collect interest at the lesser of 1.5% per month or
the highest amount permitted by law on any amounts not paid when due. You
may cancel your subscription at any time. If you cancel, you will not be
billed for any additional terms of service, and service will continue
until the end of the current Subscription Term. If you cancel, you will
not receive a refund for any service already paid for.
- TAXES. Unless stated
otherwise, all prices and fees shown by SPRING are exclusive of Taxes and
regulatory fees, service, service fees, set up fees, subscription fees, or
any other fee or charge associated with Your Account. Where applicable,
Taxes and regulatory fees will be charged on the invoices issued by SPRING
in accordance with local laws and regulations. SPRING, in its sole
discretion, will calculate the amount of Taxes due. The taxes and
regulatory fees charged can be changed without notice.
- VAT Invoices. If required by
Law, SPRING will issue a VAT invoice, or a document that the relevant
taxing authority will treat as a VAT invoice, to You. You accept that
this invoice may be issued electronically.
- Tax exemptions. If You are exempt
from any Tax or Fee, You will provide SPRING with all appropriate tax
exemption certificates, and/or other documentation satisfactory to the
applicable taxing authorities to substantiate such exemption status. SPRING
reserves the right to review and validate tax exemption documentation. In
the event that the tax exemption documentation is not valid, SPRING
reserves the right to charge applicable taxes to You.
- Payment of Taxes and
Fees. You
will pay to SPRING any applicable Taxes and Fees. You are solely
responsible for paying any and all Taxes and Fees owing as a result of SPRING’s
provision of the Services to You. If You are required to pay any Taxes
and Fees, You shall pay such amounts with no reduction or offset in
amounts payable to SPRING hereunder and You will pay and bear such
additional amount, as shall be necessary such that SPRING receives the
full amount of payment required as if no such reduction or offset were
required.
- VAT due by the customer. In the event
Taxes and Fees are due towards the taxing authorities by You instead of SPRING,
through the reverse charge or other similar mechanism, You will provide SPRING
with all appropriate evidence for SPRING to demonstrate Your business
nature, such as a valid VAT registration number (or similar information
required under the relevant VAT laws). SPRING reserves the right to
review and validate your VAT registration number. In the event that the
VAT registration number is not valid, SPRING reserves the right to
nevertheless charge applicable VAT to You. For the avoidance of doubt, if
VAT is due by You to a taxing authority, through the reverse charge or
other similar mechanism, You are solely responsible for paying those
amounts to the relevant taxing authority such that SPRING receives the
full amount of payment required.
- Tax determination. Tax determination
is principally based on the location where the Customer has established
its business based on the Customer Data, or for individuals where that
individual permanently resides. This will be defined by SPRING as Your
‘Sold To’ address. SPRING reserves the right to cross reference this
location against other available evidence to validate whether Your
location is accurate. In the event that Your location is inaccurate, SPRING
reserves the right to charge You any outstanding Taxes and Fees.
- Use and enjoyment. If You purchase SPRING
Services, and those Services are used and enjoyed by a subsidiary of You
in a country that is different to Your location as determined by Section
9(e) of this TOS, You confirm that where required You will treat this as
a supply to Your subsidiary. In the event You purchase Services and those
Services are used and enjoyed by a branch or individual in a country that
is different to Your location as determined by Section 9 (e) of this TOS,
You acknowledge that You will inform SPRING of the Services that have
been allocated and You acknowledge that SPRING reserves the right to
charge Taxes and Fees based on the use and enjoyment of those Services.
- TERMINATION. The SPRING website
contains information on how to terminate Your Account. If you have
purchased a Service for a specific term, such termination will be
effective on the last day of the then-current term. Your Order Form may
provide that a Renewal Term will begin automatically unless either party
provides notice of termination at least thirty (30) days prior to the
commencement of the next Renewal Term. If You fail to comply with any
provision of this Agreement, SPRING may terminate this Agreement
immediately and retain any fees previously paid by You. Sections 1 and 3
through 22, inclusive, shall survive any termination of this Agreement.
Upon any termination of this Agreement, You must cease any further use of
the Services. If at any time You are not happy with the Services, Your
sole remedy is to cease using the Services and follow this termination
process.
- PROPRIETARY RIGHTS. SPRING and/or
its suppliers, as applicable, retain ownership of all proprietary rights
in the Services and in all trade names, trademarks, service marks, logos,
and domain names (“SPRING Marks”) associated or displayed with the
Services. You may not frame or utilize framing techniques to enclose any SPRING
Marks, or other proprietary information (including images, text, page
layout, or form) of SPRING without express written consent. You may not
use any meta tags or any other “hidden text” utilizing SPRING Marks
without SPRING’s express written consent.
- CONFIDENTIALITY. Each party
agrees to regard and preserve as confidential all non-public information
provided by the other party relating to the business, systems, operations,
strategic plans, clients, pricing (including, but not limited to, the
pricing terms herein), methods, processes, financial data, programs,
and/or products of the other party in any form, that are designated as
“confidential,” or a reasonable person knows or reasonably should
understand to be confidential (herein “Confidential Information”). For
purposes of the Agreement, Your Confidential Information shall include
Your Data, and any information disclosed to SPRING by You relating to the
business, systems, operations, strategic plans, clients, pricing, methods,
processes, financial data, programs, and/or products of You. Each party
agrees to limit its disclosure of the other party’s Confidential
Information to as few persons as possible and only to those persons with a
need to know that are its or its Affiliates’ personnel and subject to an
obligation to keep such information confidential. Except as needed to
fulfill their respective obligations under the Agreement, neither party
shall, without first obtaining the other party’s prior written consent,
disclose to any person, firm or enterprise, except as expressly permitted
herein, or use for its own benefit, or the benefit of a third party, the
Confidential Information of the other party.
- Exclusions. “Confidential
Information” shall not include Content or information that (a) is already
rightfully known to a party at the time it is obtained from the other
party, free from any obligation to keep such information confidential;
(b) is or becomes publicly known or available through no wrongful act of
a party; (c) is rightfully received from a third party without
restriction and without breach of this TOS; or (d) is developed by a
party without the use of any proprietary, non-public information provided
by the other party under the Agreement.
- Exception. Either party
may disclose Confidential Information where required by law, regulation,
or court order, provided that the party subject to such law, regulation
or court order shall, where permitted, notify the other party of any such
use or requirement prior to disclosure in order to afford such other
party an opportunity to seek a protective order to prevent or limit
disclosure of the information to third parties.
- Confidentiality Period and
Obligations.
The confidentiality obligations set forth in this section of the TOS
shall remain in effect for a period of five (5) years from the disclosure
of the information. Both parties agree (a) to take reasonable steps to
protect the other party’s Confidential Information, and these steps must
be at least as protective as those the receiving party takes to protect
its own Confidential Information, and no less than a reasonable standard
of care; (b) to notify the disclosing party promptly upon discovery of
any unauthorized use or disclosure of Confidential Information; and (c)
in the event of any unauthorized disclosure by a receiving party, to
cooperate with the disclosing party to help regain control of the
Confidential Information and prevent further unauthorized use or
disclosure of it.
- COPYRIGHT. You may not post,
modify, distribute, or reproduce in any way copyrighted material,
trademarks, rights of publicity or other proprietary rights without
obtaining the prior written consent of the owner of such proprietary
rights. SPRING may deny access to the Services to any User who is alleged
to infringe another party’s copyright. Without limiting the foregoing, if
You believe that Your copyright has been infringed, please notify SPRING
as specified here.
- EXPORT RESTRICTIONS.You acknowledge
that the Services, or a portion thereof, are subject to the Export
Administration Regulations, 15 C.F.R. Parts 730-774, of the United States
and may be subject to other applicable country export control and trade
sanctions laws (“Export Control and Sanctions Laws”). SPRING will provide
the U.S. export classification(s) applicable to its Services upon request.
You and Your End Users may not access, use, export, re-export, divert,
transfer or disclose any portion of the Services or any related technical
information or materials, directly or indirectly, in violation of Export
Control and Sanctions Laws. You represent and warrant that: (i) You and
Your End Users (a) are not citizens of, or located within, a country or
territory that is subject to U.S. trade sanctions or other significant
trade restrictions (including without limitation Cuba, Iran, North Korea,
Syria, and the Crimea, Donetsk and Luhansk regions of Ukraine) and that
You and Your End Users will not access or use the Services, or export,
re-export, divert, or transfer the Services, in or to such countries or
territories; (b) are not persons, or owned 50% or more, individually or in
the aggregate by persons, identified on the U.S. Department of the
Treasury’s Specially Designated Nationals and Blocked Persons List or
Foreign Sanctions Evaders Lists; and (c) are not persons on the U.S.
Department of Commerce’s Denied Persons List, Entity List, or Unverified
List, or U.S. Department of State proliferation-related lists; (ii) You
and Your End Users located in China, Russia, or Venezuela are not Military
End Users and will not put SPRING’s Services to a Military End Use, as
defined in 15 C.F.R. 744.21; (iii) no Content created or submitted by You
or Your End Users is subject to any restriction on disclosure, transfer,
download, export or re-export under the Export Control and Sanctions Laws;
and (iv) You and Your End Users will not take any action that would
constitute a violation of, or be penalized under, U.S. antiboycott laws
administered by the U.S. Department of Commerce or the U.S. Department of
the Treasury. You are solely responsible for complying with the Export
Control and Sanctions Laws and monitoring them for any modifications.
- NO HIGH RISK USE. The Services are
not designed or licensed for use in hazardous environments requiring
fail-safe controls, including without limitation operation of nuclear
facilities, aircraft navigation/communication systems, air traffic
control, and life support or weapons systems. The Services shall not be
used for or in any HIGH RISK environment.
- INJUNCTIVE RELIEF. You acknowledge
that any use of the Services contrary to this Agreement, or any transfer, sublicensing,
copying or disclosure of technical information or materials related to the
Services, may cause irreparable injury to SPRING, its Affiliates,
suppliers and any other party authorized by SPRING to resell, distribute,
or promote the Services (“Resellers”), and under such circumstances SPRING,
its Affiliates, suppliers and Resellers will be entitled to equitable
relief, without posting bond or other security, including, but not limited
to, preliminary and permanent injunctive relief.
- NO WARRANTIES.YOU UNDERSTAND AND
AGREE THAT THE SERVICES ARE PROVIDED “AS IS” AND SPRING, ITS AFFILIATES,
SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SPRING,
ITS AFFILIATES, SUPPLIERS AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION
REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES,
REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH
THE SERVICES OR THAT THE SERVICES WILL MEET ANY USER’S REQUIREMENTS, OR BE
UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES IS AT
YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED
THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU
WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF
THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE
SERVICES REMAINS WITH YOU. SPRING DOES NOT ASSUME ANY RESPONSIBILITY FOR
RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. SPRING
CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE
SERVICES. USE IS AT YOUR OWN RISK.
- INDEMNIFICATION. You agree to
indemnify, defend and hold harmless SPRING, its affiliates, officers,
directors, employees, consultants, agents, suppliers and Resellers from
any and all third party claims, liability, damages and/or costs
(including, but not limited to, attorneys’ fees) arising from Your use of
the Services, Your violation of this Agreement or the infringement or
violation by You or any other user of Your account, of any intellectual
property or other right of any person or entity or applicable law.
- LIMITATION OF LIABILITY.TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SPRING OR ITS
AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR
DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR THE
PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES,
WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL
THEORY, EVEN IF SPRING, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, SPRING’S, ITS
AFFILIATES’, SUPPLIERS’ AND RESELLERS’ MAXIMUM CUMULATIVE LIABILITY AND
YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS
AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE
SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR
CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS. Because some states and
jurisdictions do not allow the exclusion or limitation of liability, the
above limitation may not apply to You.
- AGREEMENT TO ARBITRATE; WAIVER
OF CLASS ACTION.
If You are located in the United States, You agree to resolve disputes
only on an individual basis, through arbitration pursuant to the provisions
of Exhibit A. The parties expressly waive any right to bring any action,
lawsuit, or proceeding as a class or collective action, private attorney
general action, or any other proceeding in which any party acts or
proposes to act in a representative capacity.
- PRIVACY AND OTHER
POLICIES. SPRING
will collect and/or process personal data pursuant to its Privacy
Statement. All policies located at www.springapp.com/legal are incorporated into
this Agreement by reference. Further, if You are a business, enterprise or
education account owner and Your use of the Services requires SPRING to
process Your End Users’ personal data under a data processing agreement, SPRING
shall process such personal data subject to SPRING’s Global Date
Processing Addendum. Additionally, You understand and agree that SPRING
may contact You via e-mail or otherwise with information relevant to Your
use of the Services, regardless of whether You have opted out of receiving
marketing communications or notices.
- MISCELLANEOUS
- Choice of Law and Forum. This
Agreement shall be governed by and construed under the laws of the State
of California, U.S.A., as applied to agreements entered into and to be
performed in California by California residents. Except as provided in
Exhibit A, the Parties consent to the exclusive jurisdiction and venue of
the state courts located in and serving Los Angeles County, California
and the federal courts in the Central District of California.
- Contracting Entity. In the event
Your SPRING account reflects a bill to/sold to address outside of the
United States of America, the contracting entity under these TOS shall be
SPRING’s Affiliate that is designated within your account information.
- Waiver and Severability. Failure by either
Party to exercise any of its rights under, or to enforce any provision
of, this Agreement will not be deemed a waiver or forfeiture of such
rights or ability to enforce such provision. If any provision of this
Agreement is held by a court of competent jurisdiction to be illegal,
invalid or unenforceable, that provision will be amended to achieve as
nearly as possible the same economic effect of the original provision and
the remainder of this Agreement will remain in full force and effect.
- General Provisions. This
Agreement embodies the entire understanding and agreement between the
Parties respecting the subject matter of this Agreement and supersedes
any and all prior understandings and agreements between the Parties
respecting such subject matter, except that if You or Your company have
executed a separate written agreement or you have signed an order form
referencing a separate agreement governing your use of the Services, then
such agreement shall control to the extent that any provision of this
Agreement conflicts with the terms of such agreement. SPRING may elect to
change or supplement the terms of this Agreement from time to time at its
sole discretion. SPRING will exercise commercially reasonable business
efforts to provide notice to You of any material changes to this
Agreement. Within ten (10) business days of posting changes to this
Agreement (or ten (10) business days from the date of notice, if such is
provided), they will be binding on You. If You do not agree with the
changes, You should discontinue using the Services. If You continue using
the Services after such ten-business-day period, You will be deemed to
have accepted the changes to the terms of this Agreement. In order to
participate in certain Services, You may be notified that You are
required to download software and/or agree to additional terms and
conditions. Unless expressly set forth in such additional terms and
conditions, those additional terms are hereby incorporated into this
Agreement. This Agreement has been prepared in the English Language and
such version shall be controlling in all respects and any non-English
version of this Agreement is solely for accommodation purposes.
Exhibit
A
Binding
Arbitration
This Exhibit A to the
TOS describes the further provisions which apply to the Binding Arbitration and
Class Action Waiver.
A.
Disputes. A dispute is any
controversy between You and SPRING concerning the Services, any software
related to the Services, the price of the Services, Your account, SPRING’s
advertising, marketing, or communications, Your purchase transaction or
billing, or any term of this Agreement, under any legal theory including
contract, warranty, tort, statute, or regulation, except disputes relating to
the enforcement or validity of Your or SPRING’s intellectual property rights.
As part of the best efforts process to resolve disputes, and prior to
initiating arbitration proceedings, each party agrees to provide notice of the
dispute to the other party, including a description of the dispute, what
efforts have been made to resolve it, and what the disputing party is
requesting as resolution, to legal@springapp.com.
- Small Claims Court Available. You may initiate
an action in your local Small Claims Court if You meets the court’s
requirements. However, if such a claim is transferred, removed or appealed
to a different court, SPRING reserves the right to require arbitration.
- Arbitration Procedure. Disputes
not resolved pursuant to Section A or B shall be resolved through
arbitration. The American Arbitration Association (“AAA”) will conduct any
arbitration under its Commercial Arbitration Rules. For more information,
see www.adr.org. Arbitration
hearings will take place in the federal judicial district of Your primary
business location. A single arbitrator will be appointed. The arbitrator
must: (a) follow all applicable substantive Law; (b) follow applicable statutes
of limitations; (c) honor valid claims of privilege; (d) issue a written
decision including the reasons for the award. The arbitrator may award
damages, declaratory or injunctive relief, and costs (including reasonable
attorneys’ fees). Any arbitration award may be enforced (such as through a
judgment) in any court with jurisdiction. Under AAA Rules, the arbitrator rules
on his or her own jurisdiction, including the arbitrability of any claim;
however, a court has exclusive authority to enforce the prohibition on
arbitration on a class-wide basis or in a representative capacity .
- Arbitration Fees. If You are
unable to afford the arbitration costs, SPRING will advance those costs to
You, subject to the arbitrator’s determination if costs should be reimbursed
to SPRING if SPRING prevails. For disputes involving more than $75,000,
the AAA rules will govern payment of filing fees and the AAA’s and
arbitrator’s fees and expenses.
- Conflict with AAA Rules. This Agreement
governs if there is a conflict with the AAA’s Commercial Arbitration
Rules.
- Requirement to File Within One
Year.
Notwithstanding any other statute of limitations, a claim or dispute under
this Agreement must be filed in Small Claims Court or noticed for
arbitration within one year of when it could first be filed, or such claim
will be permanently barred.
- Severability. If the class
action waiver is found to be illegal or unenforceable as to all or some
parts of a dispute, then those parts will not be arbitrated but will be
resolved in court, with the balance resolved through arbitration. If any
provision of this Exhibit A is found to be illegal or unenforceable, then
that provision will be severed; however, the remaining provisions shall
still apply and shall be interpreted to as nearly as possible achieve the
original intent of this Exhibit, inclusive of the severed provision.