AGREEMENT
These Scatterspoke Terms of Service (“Agreement”) are entered into by and between Scatterspoke (as defined below) and the entity or person placing an order for or accessing any Service (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any attachments, addenda or exhibits referenced in the Agreement, and any Order Forms and SOWs (as defined below) that reference this Agreement. From time to time, Scatterspoke may modify this Agreement. Unless otherwise specified by Scatterspoke, changes become effective for Customer upon renewal of the then-current Subscription Term (as defined below) or entry into a new Order Form after the updated version of this Agreement goes into effect.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form, as applicable, referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
1. Use of Service
1.1. Service Provision and Access. Scatterspoke will make the Service available to Customer for the Subscription Term solely for use by Customer and its Users in accordance with the terms and conditions of this Agreement, the Documentation, and the Order Form. Customer may permit its Contractors and Affiliates to serve as Users provided that any use of the Service by each such Contractor or Affiliate is solely for the benefit of Customer or such Affiliate. Customer shall be responsible for each User’s compliance with this Agreement.
1.2. Affiliates. Customer Affiliates may purchase services from Scatterspoke or a Scatterspoke Affiliate by executing an Order Form or SOW which is governed by the terms of this Agreement. This will establish a new and separate agreement between the Customer Affiliate and the Scatterspoke entity signing such Order Form. If the Customer Affiliate resides in a different country than Customer, then the Order Form may include modifications to terms applicable to the transaction(s) (including but not limited to tax terms and governing law).
1.3. Compliance with Applicable Laws. Scatterspoke will provide the services in accordance with its obligations under laws and government regulations applicable to Scatterspoke’s provision of the services to its customers generally.
1.4. General Restrictions. Customer will not (and will not permit any third party to): (a) sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available any Service (or Deliverables, if applicable) to a third party (except as set forth in the Documentation for Service features expressly intended to enable Customer to provide its third parties with access to Customer Data, or the SOW, as applicable, or (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to any Service, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Scatterspoke); or (c) remove or obscure any proprietary or other notices contained in any Service.
2. Customer Data
2.1. Rights in Customer Data. As between the parties, Customer retains all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the Service as provided to Scatterspoke. Subject to the terms of this Agreement, Customer hereby grants to Scatterspoke and its Affiliates a non-exclusive, worldwide, royalty-free right to process and store the Customer Data solely to the extent necessary to provide the services to Customer, to prevent or address service or technical problems with the services, or as may be required by law.
2.2. Use Obligations.
(a) In General. Customer’s use of the services and all Customer Data will comply with applicable laws and government regulations, including but not limited to any data localization or data sovereignty laws or regulations. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to Scatterspoke under this Agreement and that the processing of Customer Data by Scatterspoke will not violate any laws or the rights of any third party.
2.3. Data Privacy. The parties shall comply with the DPA and the Scatterspoke Privacy Policy located at https://www.scatterspoke.com/privacy.html.
3. Intellectual Property
3.1. Scatterspoke Technology. Customer agrees that Scatterspoke or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Service, and all Documentation, any Deliverables, and any and all related and underlying technology and documentation; and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated (collectively, “Scatterspoke Technology”). Except for the express limited rights set forth in this Agreement, no right, title or interest in any Scatterspoke Technology is granted to Customer. Notwithstanding anything to the contrary herein, Scatterspoke may freely use and incorporate into Scatterspoke’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the Services relating to Scatterspoke’s products or services (“Feedback”).
3.2. Usage Data. Notwithstanding anything to the contrary in this Agreement, Scatterspoke may collect and use Usage Data to develop, improve, support, and operate its products and services. Scatterspoke may not share any Usage Data that includes Customer’s Confidential Information with a third party except (i) in accordance with Section 5 (Confidentiality) of this Agreement, or (ii) to the extent the Usage Data is aggregated and anonymized such that Customer and Customer’s Users cannot be identified.
3.3. Marketing. Scatterspoke may use and display Customer’s name, logo, trademarks, and service marks on Scatterspoke’s website and in Scatterspoke’s marketing materials in connection with identifying Customer as a customer of Scatterspoke. Upon Customer’s written request, Scatterspoke will promptly remove any such marks from Scatterspoke’s website and, to the extent commercially feasible, Scatterspoke’s marketing materials. If Scatterspoke requests, Customer agrees to participate in a case study, press release and/or cooperate with Scatterspoke in speaking to the media, and to speak at a future Scatterspoke event.
4. Confidentiality.
Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
5. Fees and Payment; Taxes; Payment Disputes
5.1. Fees and Payment. All Fees and payment terms are as set forth in the applicable Order Form. Except as expressly set forth in this Agreement, all payment obligations are non-cancelable and Fees are non-refundable. If Customer issues a purchase order upon entering into an Order Form, then: (i) any such purchase order submitted by Customer is for its internal purposes only, and Scatterspoke rejects, and in the future is deemed to have rejected, any purchase order terms to the extent they add to or conflict in any way with this Agreement or the applicable Order Form and such additional or conflicting terms will have no effect; (ii) it shall be without limitation to Scatterspoke’s right to collect Fees owing hereunder; (iii) it shall be for the total Fees owing under the applicable Order Form; and (iv) on request, Scatterspoke will reference the purchase order number on its invoices (solely for administrative convenience), so long as Customer provides the purchase order at least ten (10) business days prior to the invoice date.
5.2. Taxes. Fees do not include Taxes. Customer is responsible for paying all Taxes associated with its purchases hereunder including without limitation all use or access of the Service by its Users. If Scatterspoke has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Scatterspoke will invoice Customer and Customer will pay that amount unless Customer provides Scatterspoke with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to Scatterspoke, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, Scatterspoke receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon Scatterspoke’s request, Customer will provide to Scatterspoke its proof of withholding tax remittance to the respective tax authority.
5.3. Payment Disputes. Scatterspoke will not exercise its rights under Section 6.2 (Termination for Cause) or Section 6.5(a) (Suspension of Service) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party shall have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
6. Term and Termination
6.1. Term. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with its terms. If there is no SOW, Order Form or Retrieval Right currently in effect, either party may terminate this Agreement upon written notice to the other party. Each Order Form will terminate upon expiration of the applicable Subscription Term, unless expressly stated otherwise therein or in this Agreement.
6.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. For any termination of this Agreement by Customer for cause in accordance with Section 6.2(a), Customer shall be entitled to a refund of any unused Fees Customer has pre-paid for the Service purchased hereunder.
6.3. Effect of Termination; Customer Data Retrieval. Upon written notice to Scatterspoke, Customer will have up to thirty (30) calendar days from termination or expiration of this Agreement to access the Service solely to the extent necessary to retrieve Customer Data (“Retrieval Right”). If Customer exercises its Retrieval Right, this Agreement and the applicable Order Form shall continue in full force and effect for the duration of the Retrieval Right. Scatterspoke shall have no further obligation to make Customer Data available after termination of this Agreement and shall thereafter promptly delete Customer Data. After the Retrieval Right period, Customer will have no further access to Customer Data and shall cease use of and access to the Service (including any related Scatterspoke Technology) and delete all copies of the Documentation, and any other Scatterspoke Confidential Information in its possession.
6.5. Suspension of Service. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Scatterspoke reserves the right to suspend provision of services; (a) if Customer is thirty (30) days or more overdue on a payment; (b) if Scatterspoke deems such suspension necessary as a result of Customer’s breach of Sections 1.6 (General Restrictions) or 2.2 (Use Obligations); (c) if Scatterspoke reasonably determines suspension is necessary to avoid material harm to Scatterspoke or its other customers, or (d) as required by law or at the request of governmental entities.
7. Warranty
7.1. Service Warranty. Scatterspoke warrants that: (a) the Service will operate in substantial conformity with the applicable Documentation and (b) Professional Services and Deliverables will be provided in a professional and workmanlike manner and substantially in accordance with the specifications in the applicable SOW. If Scatterspoke is not able to correct any reported non-conformity with this warranty, either party may terminate the applicable Order Form or Statement of Work (as applicable, and Customer, as its sole remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Service or Professional Services purchased thereunder. This warranty will not apply if the error or non-conformance was caused by misuse of the Service or Deliverables, modifications to the Service or Deliverables by Customer or any third-party, or third-party hardware, software, or services used in connection with the Service. For Professional Services and Deliverables, this warranty will not apply unless Customer provides written notice of a claim within thirty (30) days after expiration of the applicable Statement of Work.
7.2. Mutual Warranty. Each party warrants that it has validly entered into this Agreement and has the legal power to do so.
7.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE, AND ALL PROFESSIONAL SERVICES AND SUPPORT ARE PROVIDED “AS IS” AND SCATTERSPOKE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SCATTERSPOKE DOES NOT WARRANT THAT THE USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES SCATTERSPOKE WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY.
8. Support and Availability.
During a Subscription Term, Scatterspoke will provide Customer the level of support for the Service specified in the applicable Order Form.
9. Professional Services
9.1. Provision of Professional Services. Scatterspoke will perform the Professional Services for Customer as set forth in each applicable Statement of Work, subject to the terms and conditions of this Agreement. The Scatterspoke personnel that Scatterspoke assigns to perform the Professional Services will be professional and qualified in the performance of the applicable Professional Services. If Customer, in its reasonable judgment, believes that Scatterspoke personnel assigned to a project do not meet the requirements in this section, Scatterspoke will in good faith discuss alternatives and will replace Scatterspoke personnel as reasonably necessary.
9.2. Assistance. Customer acknowledges that timely access to applicable Customer Materials (defined below), resources, personnel, equipment or facilities is necessary for the provision of Professional Services. Customer agrees to provide such access and to reasonably cooperate with Scatterspoke during a Professional Services project. Scatterspoke will have no liability for any delay or deficiency to the extent resulting from Customer’s breach of its obligations under this Section 9.
9.3. Customer Materials. Customer hereby grants Scatterspoke a limited right to use any materials provided to Scatterspoke in connection with Professional Services projects (the “Customer Materials”) solely for the purpose of providing Professional Services to Customer. Customer will retain any of its rights (including all intellectual property rights) in and to the Customer Materials. Scatterspoke will treat Customer Materials subject to the confidentiality obligations under Section 4 (Confidentiality). Customer warrants that Customer has and will have sufficient rights in the Customer Materials to grant the rights to Scatterspoke under this Agreement and that the Customer Materials will not violate the rights of any third party rights.
9.4. License to Deliverables. The Professional Services Scatterspoke performs (e.g., providing guidance on configuring the Scatterspoke Service), and the resulting Deliverables are generally applicable to Scatterspoke’s business and are part of Scatterspoke Technology. Subject to the terms and conditions of this Agreement (including the restriction in Section 1.6 (General Restrictions)), Scatterspoke hereby grants Customer a limited, non-exclusive, royalty-free, non-transferable worldwide license to use the Deliverables internally solely in connection with such Customer’s use of the Service during the period in which such Customer has valid access to the Service. The parties may mutually agree to SOWs with additional terms and restrictions related to the use of Deliverables provided as part of that project, in which case those terms and restrictions will also apply for purposes of those Deliverables only.
10. Indemnification
10.1. Indemnification by Scatterspoke. Scatterspoke will defend Customer against any claim by a third party alleging that any Service or Deliverable, when used in accordance with this Agreement, infringes any intellectual property right of such third party and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Scatterspoke (including reasonable attorneys’ fees) resulting from such claim. If Customer’s use of the Service or Deliverable results (or in Scatterspoke’s opinion is likely to result) in an infringement claim, Scatterspoke may either: (a) substitute functionally similar products or services; (b) procure for Customer the right to continue using the Service or Deliverable; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement, or the applicable Order Form or SOW and refund to Customer the unused Fees that Customer has pre-paid for the applicable Service or Deliverable. The foregoing indemnification obligation of Scatterspoke will not apply to the extent the applicable claim is attributable to: (1) the modification of the Service or Deliverable by any party other than Scatterspoke or based on Customer’s specifications or requirements; (2) the combination of the Service or Deliverable with products or processes not provided by Scatterspoke; (3) any use of the Service or Deliverables in non-conformity with this Agreement; or (4) any action arising as a result of Customer Data, or any deliverables or components not provided by Scatterspoke. This section sets forth Customer’s sole remedy with respect to any claim of intellectual property infringement.
10.2. Indemnification by Customer. Customer will defend Scatterspoke against any claim by a third party arising from or relating to any Customer Data, Customer Materials or any Customer-offered product or service used in connection with the Service and will indemnify and hold harmless Scatterspoke from and against any damages and costs awarded against Scatterspoke or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.
10.3. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 10, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under Section 10 shall not relieve the indemnifying party of its obligations under Section 10. However the indemnifying party shall not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under Section 10 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
11. Limitation of Remedies and Damages.
EXCEPT AS TO “EXCLUDED CLAIMS,” TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT:
(A) NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, COSTS OF DELAY, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE;
(B) SUBJECT TO SUBSECTION (C) BELOW, EACH PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE), SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE TO SCATTERSPOKE IN THE PRIOR 12 MONTHS UNDER THE APPLICABLE ORDER FORM(S) OR SOW TO WHICH SUCH LIABILITY RELATES (“GENERAL LIABILITY CAP”);
(C) IN THE CASE OF “DATA PROTECTION CLAIMS,” EACH PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED TWO TIMES (2X) THE “GENERAL LIABILITY CAP”;
(D) IN NO EVENT SHALL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE DATA PROTECTION CLAIMS CAP. SIMILARLY, THOSE CAPS SHALL NOT BE CUMULATIVE; IF A PARTY (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE SHALL NOT EXCEED THE DATA PROTECTION CLAIMS CAP;
(E) THE PARTIES AGREE THAT THIS SECTION 11 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE APPLICABLE MONETARY CAPS SET FORTH IN THIS SECTION 11 SHALL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS, WITHOUT REGARD TO WHETHER ANY INDIVIDUAL CUSTOMER AFFILIATES HAVE EXECUTED A SEPARATE AGREEMENT IN ACCORDANCE WITH SECTION 1.2 (AFFILIATES).
12. General Terms
12.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in its entirety in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities to such party’s successor; and Scatterspoke may assign this Agreement in its entirety to any Affiliate. Each party shall promptly provide notice of any such assignment. Any attempt to transfer or assign this Agreement except as expressly authorized under this section will be null and void.
12.2. Severability; Interpretation. If a court of competent jurisdiction holds any provision of this Agreement to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect. Section headings are inserted for convenience only and shall not affect the construction of the agreement.
12.3. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it shall provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section shall not apply to claims subject to indemnification under Section 10 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
12.4. Governing Law; Jurisdiction and Venue; Scatterspoke Affiliate. This Agreement will be governed by the laws of the State of Colorado and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods; and the jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in Denver, Colorado and both parties hereby submit to the personal jurisdiction of such courts.
12.5. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth in this Agreement or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) if given by email, immediately upon receipt. Notwithstanding the foregoing, except for notices pertaining to non-payment and except as otherwise expressly permitted in this Agreement or in an Order Form, notices related to termination of this Agreement or any claims (including without limitation breach, warranty or indemnity) may not be given via email. Email notifications to Scatterspoke shall be to legalnotices@Scatterspoke.com.
12.6. Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement, except as expressly set forth herein. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void, notwithstanding any language to the contrary therein, whether signed before or after this Agreement.
12.7. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Scatterspoke may change and update any Service (in which case Scatterspoke may update the applicable Documentation accordingly), subject to the warranty in Section 7.1 (Service Warranty).
12.8. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.9. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government, acts of terrorism, or war.
12.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent and neither party’s employees are eligible for any form or type of benefits, including, but not limited to, health, life or disability insurance, offered by the other party to its employees.
12.11. Export Control. Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any third parties to) access or use any Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to any Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
12.12. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.
12.13 Survival. The following Sections will survive any expiration or termination of this Agreement: 1.6 (General Restrictions), 3 (Intellectual Property), 4 (Confidentiality), 5.1 (Fees and Payment), 5.2 (Taxes), 6 (Term and Termination), 7.3 (Warranty Disclaimer), 10 (Indemnification), 11 (Limitation of Remedies and Damages), 12 (General Terms), and 13 (Definitions).
13. Definitions
“Account” means Customer’s account in the Service in which Customer stores and processes Customer Data.
“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.
“Confidential Information” shall mean all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Customer Data will be deemed Confidential Information of Customer without any marking or further designation. All Scatterspoke Technology and the terms and conditions of this Agreement will be deemed Confidential Information of Scatterspoke without any marking or further designation. Confidential Information shall not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
“Contractor” means the independent contractors and consultants permitted by Customer to serve as Users of the Service.
“Customer Data” means any data or data files of any type that are uploaded by or on behalf of Customer to the Service for storage in a data repository.
“Data Protection Claims” means any claims arising from a party’s breach of Section 2.3 (Data Privacy), Section 3 (Security), or Section 4 (Confidentiality), where such breach results in the unauthorized disclosure of Customer Data, or breach of Section 2.2 (Use Obligations).
“Deliverables” means the guides, code (including SQL queries) or other deliverables that Scatterspoke provides to Customer in connection with Professional Services. For clarity, Scatterspoke may use compilers, assemblers, interpreters and similar tools to develop Deliverables. The term “Deliverables” does not include such tools.
“Disclosing Party” is defined in Section 4 (Confidentiality).
“Documentation” means Scatterspoke’s technical documentation and usage guides for the applicable Service.
“DPA ” means the Customer Data Processing Addendum, made available at:
“Excluded Claims” means (a) a party’s breach of its obligations in Section 4 (Confidentiality) (but excluding obligations and/or claims relating to Customer Data); (b) either party’s express obligations under Section 10 (Indemnification); and (c) liability which, by law, cannot be limited.
“Feedback” is defined in Section 3.1 (Scatterspoke Technology).
“Fees” means the fees payable by Customer for the applicable Service or Professional Services, as set forth in an Order Form or Statement of Work. For Professional Services, the term Fees also includes travel, lodging, meal and other expenses incurred in the course of providing Professional Services, but only if the applicable SOW specifies that expenses are reimbursable.
“Order Form” means the Scatterspoke ordering document (and/or an SOW, if applicable) executed by both Customer and Scatterspoke which specifies the services being provided by Scatterspoke and that is governed by this Agreement.
“Reader Accounts”, “Read Only Consumers”, and “Read Only Users” are respectively as defined in Section 1.5(d) (Reader Accounts).
“Receiving Party” is defined in Section 4 (Confidentiality).
“Retrieval Right” is defined in Section 6.3 (Effect of Termination; Customer Data Retrieval).
“Sample Data” means any data (including from third-party sources) provided or made available to Customer by Scatterspoke solely for Customer’s internal testing, evaluation, and other non-productive use of the Service during the Subscription Term.
“Service” means a Scatterspoke software-as-a-service offering made generally available and ordered by Customer as set forth in an Order Form.
“Scatterspoke” means Scatterspoke Inc. or its Affiliate which executes an Order Form that is governed by this Agreement.
“Scatterspoke Technology” is defined in Section 3.1 (Scatterspoke Technology).
“SOW” shall have the meaning set forth in the TSA.
“Subscription Term” means the set term designated on an Order Form.
“Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction, but excluding any taxes based on net income, property, or employees of Scatterspoke.
“Professional Services” shall mean the consulting, configuration or other professional services provided by Scatterspoke to Customer under an Order Form or Statement of Work.
“Third Party Applications” means separate or third party data, services or applications (and other consulting services related thereto) made available by Customer or to Customer that interoperate with the Service and are subject to an independent agreement or supplemental terms to this Agreement.
“Usage Data” means usage and operations data in connection with the Customer’s use of the Service, including query logs and metadata (e.g., object definitions and properties).
“User” means the persons designated and granted access to the Service by or on behalf of Customer, including its and its Affiliates’ Contractors.
