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Subscription Agreement
Last Updated: July 16, 2024
THIS SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) IS BETWEEN YOU (“YOU,” OR “YOUR”) AND SPECTORA INC., A DELAWARE CORPORATION (“SPECTORA,” “WE,” “OUR” OR “US”) AND GOVERNS YOUR USE OF THE SERVICE. THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK ON THE “I AGREE,” “ACCEPT TERMS,” “START NOW” OR SIMILAR BUTTON ON THE SERVICE REGISTRATION PAGE OR EXECUTE AN ORDER AS FURTHER DESCRIBED BELOW (THE “EFFECTIVE DATE”). BY CLICKING ON THE “I AGREE,” “ACCEPT TERMS,” “START NOW” OR SIMILAR BUTTON ON THE SERVICE REGISTRATION PAGE OR EXECUTING AN ORDER AS FURTHER DESCRIBED BELOW, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IN THE EVENT YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF A COMPANY OR ORGANIZATION, “YOU,” AND “YOUR” WILL REFER TO THE ENTITY YOU ARE REPRESENTING. IF YOU ARE NOT WILLING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN SELECT THE DECLINE BUTTON OR DO NOT EXECUTE AN ORDER. IF YOU DECLINE THIS AGREEMENT OR DO NOT AGREE WITH THE TERMS SET FORTH HEREIN (IN WHOLE OR IN PART), YOU MAY NOT ACCESS OR USE THE SERVICE OR ANY PORTION THEREOF.
We may update this Agreement from time to time in accordance with Section 13.5. The most current version of this Agreement will be posted on the Site (as defined below).
Glossary of Defined Terms:
“Account” means the online account or subaccounts provided to an Authorized User to manage its use of the Service.
“Aggregated Statistics” means information, statistics, data, content and analytics generated by the use of the Service or derived from monitoring the use of the Service, and which in each case is aggregated, anonymized and de-identified and does not include information that would constitute personal data, personal information, personally identifiable information, or a similar term under applicable privacy laws.
“Authorized User” means you and your employees, consultants, contractors and agents (i) who are authorized by you to access and use the Service under the rights granted to you pursuant to this Agreement and (ii) for whom access to the Service has been purchased by you pursuant to an Order.
“Customer” means your customers and prospective customers who are authorized by you to access and use the customer-facing features, functionality and Third-Party Services included in the Service Plan(s) reflected in your Order.
“Documentation” means the manuals, instructions or other documents or materials that Spectora makes available to you electronically or in hard copy form and that describe the functionality, components, features or requirements of the Service, including any aspect of the installation, configuration, integration, operation, or use thereof. Spectora may update and/or modify the Documentation from time to time in its discretion.
“Feedback” means any recommendations or feedback related to the Site, the Service, the Documentation or the Spectora System, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like, transmitted to us by you or any of your employees, contractors, agents or Authorized Users.
“Order” means the purchase order for one or more Service Plans that is either executed by the parties and references this Agreement or entered into by you through the Site. The Order may initially be for a free trial, which may be converted to a paid subscription in accordance with this Agreement and/or the applicable Order.
“Privacy Policy” means Spectora’s then-current Privacy Policy, a copy of which is accessible here https://www.spectora.com/privacy/.
“Service” means the cloud-based services or other services described in the Service Plan(s) reflected in your Order.
“Service Plan” means the bundle of Spectora products and/or services and, if applicable, Third-Party Services offered as part of a unique subscription tier or plan described on the Site, as the same may be modified from time to time.
“Site” means the websites and mobile applications owned and operated by Spectora and through which you may access the Service.
“Spectora IP” means the Service, the Documentation, any Feedback, Aggregated Statistics and all intellectual property provided to you or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Spectora IP does not include User Data.
“Spectora System” means any hardware, software, systems and/or related technology used to provide the Service.
“Spectora Use Policies” means (i) any guidelines, policies, standards, and requirements described on the Site that are applicable to the use of the Site or the Service, including the applicable portions of the then-current Terms of Use, a copy of which is accessible here [insert domain name] (the “Website Terms of Use”) and (ii) any additional terms and conditions posted on the Site that are applicable to features or functionality offered through a Service Plan.
“Subscription Period” means the period which Spectora will provide access to the Service to the Authorized Users described in the Service Plan(s) reflected in your Order.
“Third-Party Services” means any products, services, content, information, websites or other materials that are owned, offered or provided by third parties (each such third party, a “Third-Party Service Provider”) and that are incorporated into or accessible through the Service.
“User Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of any Customer or Authorized User through the Service; provided, however, that User Data does not include Aggregated Statistics.
1. Access and Use of the Service and Third-Party Services.
1.1 Use of the Service. Subject to and conditioned on your compliance with the terms and conditions of this Agreement, Spectora grants the Authorized Users the right to (a) use and access the Service during the Subscription Period solely for the uses described in the Spectora Use Policies and Documentation and in accordance with the terms and conditions herein and (b) use the Site and Documentation during the Subscription Period solely in connection with the authorized use of the Service.
1.2 Account Registration. You must register to use the Service through the Site. You represent that all information provided to Spectora and Third-Party Service Providers in the course of registering to use the Service is accurate and complete, and agree to update such Registration Information from time to time to ensure that all Registration Information continues to be accurate and complete. Each Authorized User may be required to provide a username, email address, password or other personal information (“Login Credentials”) to create an Account. You must keep, and cause the other Authorized Users to keep, all Login Credentials confidential and not share them with anyone. You will notify Spectora as soon as possible if you become aware of any compromise of any Login Credentials.
1.3 Compliance with Spectora Use Policies. You acknowledge and agree that you have read, understood and agree to be bound by the Spectora Use Policies, and such policies are hereby incorporated into this Agreement by this reference. You will comply at all times with the Spectora Use Policies in using the Site and the Service. Spectora may, from time to time and in its sole discretion, revise any of the Spectora Use Policies (in whole or in part) in accordance with the terms set forth therein or, if not set forth therein, such revisions will become effective when posted to the Site. The provisions set forth herein shall govern and control over any conflicting provisions set forth in the Website Terms of Use.
1.4 Restrictions. You will not, and will not authorize any other person to, access or use the Service except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, you will not, and will not authorize any other person to: (a) use the Service to develop a similar or competing product or service; (b) obtain or attempt to obtain the Service by any means or device with intent to avoid paying the fees that would otherwise be payable for such access or use; (c) bypass or breach any security device or protection used by the Service or access or use the Spectora System other than use of the Service and Documentation through the use of your own then valid Account and Login Credentials in accordance with this Agreement; (d) copy, modify, or create derivative works of the Service or Documentation; (e) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service (provided, that, if applicable, your Customers will be able to access the customer-facing features, functionality and Third-Party Services included in the Service Plan(s) reflected in your Order); (f) reverse engineer, decompile, disassemble, decode, adapt or seek to access the source code, algorithms, or non-public APIs included in the Service or Spectora System, except to the extent expressly permitted by law (and then only with prior notice to Spectora); (g) perform any security integrity review, penetration test, load test, denial of service simulation, or vulnerability scan on the Service or the Spectora System; (h) remove any proprietary notices from the Service, Documentation or any Third-Party Services; (i) access or use the Service or Spectora System in any manner or for any purpose that would violate any Spectora Use Policy or any applicable law, regulation or rule or the rights of any person; or (xi) otherwise access or use the Service or Spectora System beyond the scope of the authorization granted under this Agreement. Spectora may monitor or review use of the Service and investigate suspected violations of this Agreement. You will reasonably cooperate in any such investigations.
1.5 Account Use. You are responsible and liable for all uses of the Service and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you.
1.6 Third-Parties.
(a) The Service may permit you, your Authorized Users or your Customers to access and use certain Third-Party Services. Third-Party Services may be described in your Service Plan or on the Site; however, Spectora reserves the right to select or change Third-Party Service Providers and modify or discontinue any Third-Party Services, in whole or in part, in its sole discretion. Any external links to Third-Party Services do not imply an endorsement or recommendation by Spectora in any way.
(b) The applicable Third-Party Service Provider, and not Spectora, offers and provides all Third-Party Services. All Third-Party Services are subject to the terms and conditions between you or your Customers and the Third-Party Service Provider. You acknowledge that Spectora is not a party to any such agreements and that Spectora will not have any liability with respect to any claims that you or any of your Customers may have against such Third-Party Service Provider. Further, if the Third-Party Service involves payment processing or collecting monies from your Customers, you are solely responsible for (i) any disputes between you and your Customers, including disputed charges, refunds and charge-backs and (ii) any liens asserted against your accounts receivable, and you shall inform your lenders and their agents that Spectora has no responsibility for remitting your funds or accounts receivable.
(c) Spectora uses third-party hosting and other service providers (e.g. data center providers or support ticketing systems) in its supply of the Service and related features and support.
(d) If you access the Service through a mobile application acquired from a mobile application store (each a, “Mobile App Store”), you acknowledge that (i) the Mobile App Store is not a party to this Agreement and shall have no obligations with respect to the Site or Service; however, the applicable Mobile App Store and its affiliates are third party beneficiaries of this Agreement and (ii) upon your acceptance of this Agreement, the applicable Mobile App Store shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
3. Your Responsibilities and Obligations.
3.1 User Data. You are solely responsible for User Data that you or your Customers post or upload on the Service. You represent and warrant to Spectora that you have all necessary rights, consents, and permissions, and have made all necessary disclosures, notices, or statements, to grant Spectora the rights set forth herein and to use and submit User Data to the Service, all without violating or infringing any applicable laws, third-party rights (including intellectual property, publicity, or privacy rights), or any terms or policies governing User Data.
3.2 Customer Agreements. You are solely responsible for your agreements and relationships with your Customers. You acknowledge that Spectora is neither an inspector nor is in the business of providing inspections. Spectora is not responsible in any way for the provision of inspections or any other services offered by you. Spectora merely operates the Site and provides the Service that may aid you in performing inspections and interacting with your Customers. The Service is made available solely for your internal business use. YOU HEREBY ACKNOWLEDGE THAT SPECTORA DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR YOUR OR YOUR AUTHORIZED USERS’ WORK OR INSPECTIONS. SPECTORA EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED AND INSPECTIONS IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
3.3 Compliance with Law. You will, and will cause your Authorized Users to, comply with all applicable laws, including applicable trade and anti-bribery laws (which may include the US Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control, or other governmental entity imposing export controls and trade sanctions). You will use the Service solely for commercial purposes that are not prohibited by law.
3.4 Privacy Policy. You acknowledge and agree that you have read, understood and agree to be bound by the Privacy Policy, and such policies are hereby incorporated into this Agreement by this reference. Spectora may, from time to time and in its sole discretion, revise the Privacy Policy (in whole or in part) in accordance with the terms set forth therein.
3.5 Return/Deletion of User Data. For so long as you have access to the Service, you may store, back-up, extract and delete User Data stored on our systems in accordance with the terms, conditions and policies described on the Site. Following the expiration or termination of this Agreement, Spectora may give you an opportunity to remove or delete your User Data or otherwise make available an extract of your User Data in a format to be determined by Spectora in its discretion. Subject to the Privacy Policy, Spectora may retain, archive and delete any User Data that is stored on the Spectora System and Spectora has no obligation to search archived/database backup systems for any of User Data at any time.
4. Fees and Payment.
4.1 Fees. You agree to pay all fees and expenses that are described in the applicable Service Plan(s) reflected in an Order for each Subscription Period (as may be adjusted herein), (collectively, the “Fees”) when the same become due and payable. You are responsible for the full and complete payment of all Fees for the entire Subscription Period without counterclaim, deduction or set-off. All Fees are non-cancellable and non-refundable except as set forth in this Agreement or in the sole and absolute discretion of Spectora.
4.2 Billing. Unless otherwise specified in an Order, all Fees will be payable in U.S. Dollars and due in full in advance of the commencement of the applicable Subscription Period. Fees for any Renewal Subscription Period will be due in advance of the commencement of such Renewal Subscription Period.
4.3 Payments.
(a) Payment Processor. Spectora uses a third-party vendor (the “Payment Processor”) to process payment of Fees, which are charged automatically to the approved method of payment provided by you when registering to use the Service (as it may be updated from time to time, the “Method of Payment”). You may be required to register with the Payment Processor and agree to the Payment Processor’s terms of service (the “Payment Processor Services Agreement”). You acknowledge and agree that Spectora is not a party to the Payment Processor Services Agreement, and that Spectora will not have any liability with respect to any claims that you may have against the Payment Processor. If you do not so register or agree to be bound by the Payment Processor Services Agreement, Spectora may suspend, modify or terminate your access to the Service without liability on the part of Spectora.
(b) Processing Payments. You authorize the issuer of the Method of Payment to pay all Fees and any other amounts described and agreed upon hereunder. You agree to ensure that your Method of Payment is current, complete and accurate at all times, and to promptly update card numbers, expiration dates and billing address, including if your card is lost or stolen. You authorize Spectora to send you notifications in the event your Method of Payment expires or is declined for any reason. You acknowledge and agree that Spectora reserves the right to charge any replacement or renewal Method of Payment issued to you to the same extent that Spectora charged the expired Method of Payment. If any Fees are not paid by the issuer of your Method of Payment for any reason, then all unpaid Fees or other amounts due hereunder shall become immediately due and payable and you agree to pay all such Fees and other amounts immediately.
(c) Account Validation and Fraud Prevention. To help prevent fraud and safeguard your information from the risk of unauthorized access, Spectora and/or the Payment Processor may validate an account before activation. Spectora reserves the right, but not the obligation, in its sole discretion, upon request or claim from you, or upon notice of any potential fraud, unauthorized charges or other misuse of the Service, to (i) place on hold any fees, charges, payment, or (ii) refund or provide credits, or arrange for the Payment Processor to do so. Should you have a claim, please contact us at billing@Spectora.com.
4.4 Late Payment. If you fail to pay any Fees when due (including due to the failure of the issuer of your Method of Payment to make such payments), Spectora may (a) suspend access your or the other Authorized Users’ to the Service, (b) charge interest on past due undisputed amounts and (c) charge you all costs of collection efforts, including reasonable attorneys’ fees, which you shall immediately reimburse.
4.5 Taxes. Unless otherwise specified in the Order or invoices provided by Spectora, the Fees do not include any sales or other applicable taxes, levies, duties, or similar assessments assessable by any jurisdiction and you are responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on Spectora’s income.
4.6 Fee Increases. Spectora may increase its fees at any time upon electronic notice (including by posting to the Site). Such fee increases will be effective and binding on you (a) with respect to any new Authorized Users that are added after the provision of such notice and (b) for any Renewal Subscription Period that commences after the provision of such notice.
5. Free Trials. Spectora may, from time to time, offer access to certain portions of the Service on a free trial basis, including the right to use the Service to obtain up to a set number of published inspections (“Free Inspections”). The duration and other parameters of the free trial (including the maximum number of Free Inspections) will be set forth in an Order. Any access and use of the Service and Documentation on a free trial basis is subject to the terms and conditions set forth in this Agreement. While access to certain portions of the Service may be on a free trial basis, Spectora reserves the right to charge fees for services, features and benefits associated with the Service at any time. Further, and notwithstanding anything herein to the contrary, Spectora reserves the right to modify, extend, shorten, cancel or limit the free trial period without notice at any time or terminate or suspend your access to the Service under a free trial immediately upon notice and without liability. Upon the expiration or termination of your free trial, Spectora may disable your access to the Service or any features or functionality, although you may continue to access your dashboard and existing reports in accordance with this Agreement. If you and Spectora agree, you may convert your free trial subscription into a paid subscription by following the steps set forth on the Site.
6. Intellectual Property.
6.1 Spectora IP. All right, title and interest in and to the Spectora IP and all intellectual property rights embodied therein will remain with and/or vest in Spectora and/or its licensors. Spectora reserves all rights not expressly granted to you in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party, any intellectual property rights or other right, title, or interest in or to the Spectora IP. You acknowledge and agree that we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in any Feedback, for any purpose whatsoever.
6.2 User Data. All right, title and interest in and to User Data and all intellectual property rights embodied therein will remain with and vest in you and/or your licensors. You grant Spectora a non-exclusive, worldwide right to use, copy, store, transmit, display, modify, and create derivative works of the User Data (a) to the extent necessary to manage, improve, and provide the Service and related services and (b) to the extent permitted by the Privacy Policy.
6.3 Compliance with DMCA. Spectora maintains a “three strike” repeat infringer policy. Accordingly, Spectora shall terminate this Agreement if your account has had materials removed pursuant to compliant DMCA takedown notices or other infringement notifications (which are not otherwise restored through a DMCA counter-notification) on three or more occasions. For clarity, a “strike” constitutes a set of one or more concurrently sent DMCA takedown notices regarding your User Data.
7. Term; Termination and Suspension.
7.1 Term. The term of this Agreement commences on the Effective Date and continues until all Service Plans expire or are terminated in accordance with Section 7.2. Each Service Plan will automatically renew for an additional Subscription Period that is the same duration as the prior Subscription Period (each, a “Renewal Subscription Period”), unless either party gives the other party written notice of non-renewal prior to the commencement of such Renewal Subscription Period.
7.2 Termination and Suspension.
(a) Termination by Spectora. Spectora may terminate this Agreement and any Order, in whole or in part, immediately upon providing notice (which may be provided by email) for convenience or if you breach this Agreement.
(b) Termination by You. You may terminate a Service Plan at any time by terminating the applicable Service Plan through the Site. If you are unable to terminate the applicable Service Plan through the Site, you may terminate a Service Plan by providing Spectora with email notice to info@Spectora.com of your desire to terminate such Service Plan. If you terminate a Service Plan under this Section 7.2(b) that you have paid for, you will still have access to the Service associated with such Service Plan until the expiration of your Subscription Period, unless earlier terminated by Spectora. Your termination under this Section 7.2(b) will become effective when processed by Spectora. Processing times may vary.
(c) Suspension by Spectora. Spectora may suspend access to the Service without liability if: (i) Spectora receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Spectora to do so or (ii) Spectora believes in good faith and in its sole and absolute discretion, that: (A) you or any other Authorized User has failed to comply with this Agreement; (B) you or any other Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with its use of the Service, (C) you or any other Authorized User has engaged in any unprofessional, hostile or threatening conduct toward other users of the Site or Spectora’s employees or representatives or (D) an unauthorized third party is accessing the Service or Spectora System through your or any other Authorized User’s Account or Login Credentials.
7.3 Consequences of Termination.
(a) Access. Effective upon expiration or termination of a Service Plan, all Authorized Users’ access to the portion of the Service available through the expired or terminated Service Plan will immediately cease and each Authorized User must stop using such portion of the Service. Effective upon expiration or termination of this Agreement, all Authorized Users’ access to the Service will immediately cease and each Authorized User must stop using the Service. For the avoidance of doubt, termination of this Agreement will immediately terminate any outstanding Order and all accompanying Service Plans.
(b) Payments. If Spectora terminates the Agreement or any Order (including any Service Plan or portion thereof) for convenience, Spectora will promptly refund to the Method of Payment pro-rated prepaid Fees with respect to the terminated Service. If Spectora terminates this Agreement or any Order (including any Service Plan or portion thereof) for any other reason or you terminate a Service Plan under Section 4.2(b), then you will be responsible for the full amount of all Fees through the applicable Subscription Period. Spectora is not obligated in any way to refund any of your Subscription Fees in the event of termination of this Agreement, any Order or any Service Plan, except as set forth above.
7.4 Survival. Your obligation to pay any unpaid fees for Service performed prior to the expiration or termination of this Agreement and any other provision that, by its terms, is intended to survive (including this Section 7.4 and Sections 3.2, 4, 6, 7.3, 8, 9, 10, 11, 12 and 13 of this Agreement) will survive expiration or termination of this Agreement. Spectora’s right to terminate or suspend access or use of the Service does not limit any of Spectora’s other rights or remedies, whether at law, in equity, or under this Agreement, and Spectora expressly reserves all such rights.
8. Disclaimer. THE SERVICE IS PROVIDED "AS IS" AND SPECTORA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SPECTORA MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR SPECTORA IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY SERVICES ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICES IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY SERVICE PROVIDER.
9. Confidentiality. “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) about a party’s business affairs, products, confidential intellectual property, trade secrets, information with respect to which a party has contractual or other confidentiality obligations, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is marked, designated, or otherwise identified as “confidential”; provided that such information shall be deemed confidential if it is not marked or otherwise identified as “confidential” if a reasonable person familiar with the relevant industry would understand that such information is confidential; provided, however, Confidential Information does not include any information that (a) can be shown was already known to the receiving party at the time of disclosure, (b) is independently developed by the receiving party without any use of or reference to the disclosing party’s information, (c) is provided to the receiving party by a third party without violation of the disclosing party’s rights or (d) is already in or enters into the public domain by some action other than breach of this Agreement. For the avoidance of doubt, any Feedback or User Data will not be deemed Confidential Information. The receiving party will not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall have used commercially reasonable efforts to first give written notice to the other party and then to obtain a protective order. Each party’s obligations of non-disclosure with regard to Confidential Information are effective during the term of this Agreement and will expire three years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
10. Indemnity. You shall indemnify, hold harmless, and, at Spectora’s option, defend Spectora and its affiliates and their respective officers, directors, employees, agents, successors, and assigns (each, an “Indemnified Person”) from and against any and all losses, fines, damages, liabilities, liens, costs, fees and expenses, including without limitation reasonable attorneys’ and expert witnesses’ fees (“Losses”) incurred by such Indemnified Person arising out of, relating to or in connection with any third-party claim, subpoena, demand, assertion of rights (including with respect to liens, encumbrances, garnishments and attachments), suit, action, or proceeding (“Third-Party Claim”): (a) alleging that the User Data, or any use of the User Data in accordance with this Agreement, infringes, misappropriates or violates such third party’s intellectual property rights; or (b) arising out of, relating to or in connection with: (i) your breach of this Agreement; (ii) any matter, agreement or dispute between you, on the one hand, and a Third-Party Service Provider or Customer, on the other hand; (iii) your or your employees, contractors or agent’s negligence or willful misconduct in connection with the performance of your obligations under this Agreement or (iv) the use of the Service in a manner not authorized by this Agreement. Spectora will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. If Spectora allows you to defend any Third-Party Claim, you may not settle such Third-Party Claim unless Spectora consents to such settlement.
11. Limitations on Liability.
11.1 Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, SPECTORA'S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED IN AGGREGATE THE LESSER OF (A) AMOUNTS PAID OR PAYABLE BY YOU TO SPECTORA FOR THE SERVICE MADE AVAILABLE TO YOU DURING THE PRIOR 6 MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY UNDER THIS AGREEMENT AND (B) $1,000.
11.2 Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MEASURES, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.
11.3 Excluded Claims. NO LIMITATION OF LIABILITY WILL APPLY TO EXCLUDED CLAIMS. “EXCLUDED CLAIMS” MEANS: (1) YOUR BREACH OF SECTIONS 1.3, 1.4, 3.1, 4 OR 9 OR FAILURE TO PAY WHEN DUE ALL FEES AND OTHER AMOUNTS PAYABLE HEREUNDER; OR (2) AMOUNTS PAYABLE TO THIRD PARTIES UNDER YOUR OBLIGATIONS IN SECTION 10.
11.4 Nature of Claims and Failure of Essential Purpose. THE WAIVERS AND LIMITATIONS IN THIS SECTION 11 (LIMITATIONS OF LIABILITY) APPLY REGARDLESS OF THE FORM OF ACTION OR CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY, UNDER STATUTE, IN STRICT LIABILITY, OR OTHERWISE AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
12. Dispute Resolution.
12.1 Exclusive Mechanism. The parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”), under the provisions of this Section 12. The procedures set forth in this Section 12 shall be the exclusive mechanism for resolving any Dispute that may arise from time to time, and Section 12.2 is an express condition precedent to binding arbitration of the Dispute. YOU AND SPECTORA MUTUALLY AGREE TO WAIVE RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, AS SET FORTH BELOW. Notwithstanding the foregoing, Spectora may seek injunctive relief as set forth in Section 12.4.
12.2 Non-Binding Mediation. A party shall send written notice to the other party of any Dispute (“Dispute Notice”). The parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by submitting the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The parties shall cooperate with one another in selecting a mediation service, and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The parties covenant that they will use commercially reasonable efforts in participating in the mediation. The parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the parties. The parties further agree that all offers, promises, conduct, and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts, and attorneys, and by the mediator and any employees of the mediation service, are confidential, privileged, and inadmissible for any purpose, including impeachment, in any litigation, arbitration, or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
12.3 Arbitration as a Final Resort. If the parties cannot resolve any Dispute for any reason, including, but not limited to, the refusal of a party to meaningfully participate in mediation or the failure of the parties to come to a resolution through mediation, then, within fifteen (15) days after the date on which the Dispute Notice was received by the other party, either party may commence binding arbitration in accordance with the provisions of this Section 12.3. Claims shall be heard by a single arbitrator. The place of arbitration shall be Denver, Colorado. The arbitration shall be governed by the laws of the State of Colorado without giving effect to any choice of law or conflict of law rules of the State of Colorado or of any other jurisdiction. Depositions shall be limited to a maximum of three per party or as otherwise determined by the arbitrator. Each deposition shall be limited to a maximum of seven hours duration unless otherwise determined by the arbitrator. Time is of the essence for any arbitration under this Agreement and, unless expressly waived by the parties or if the arbitrator is unable to provide for arbitration within that time, arbitration hearings shall take place within one hundred eighty (180) days of filing and awards rendered within two hundred and forty (240) days. The arbitrator shall agree to these limits prior to accepting appointment. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages. The prevailing party shall be entitled to an award of its reasonable attorneys’ fees. Except as may be required by law, neither party nor any arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The parties agree that failure or refusal of a party to pay its required share, including deposits, for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence, argument, or challenge evidence at arbitration. In such event, at the arbitrator’s discretion, it may require the other party to present evidence and argument or enter an award in favor of the other party without requiring it to present evidence and argument as the arbitrator may require for the making of an award.
12.4 Injunctive Relief. You acknowledge and agree that a breach or threatened breach by you of any of your obligations under Section 1.3, Section 1.4, Section 6.1, Section 6.3 or Section 9, would cause Spectora irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Spectora will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise. Spectora shall have the right to institute any action or proceeding under this Section 12.4 in the federal courts of the United States or the courts of the State of Colorado in each case located in the City and County of Denver, and you irrevocably submit to the jurisdiction of such courts in any such action or proceeding.
13. General Provisions.
13.1 Assignment and Transfer. You may not assign or transfer this Agreement (in whole or in part) without the prior consent of Spectora, which consent shall be in writing, executed by a duly authorized representative of Spectora and expressly consenting to such assignment or transfer. No Authorized User may assign, transfer or sublicense his, her or its Account, including to other Authorized Users within an organization, without the prior written consent of Spectora. Any non-permitted assignment or transfer is void ab initio. This Agreement will bind and inure to the benefit of the parties’ successors and permitted assigns.
13.2 Governing Law. This Agreement is governed by the laws of the State of Colorado and the United States without regard to conflicts of laws provisions.
13.3 Notices. Notices to you will be deemed given upon: (a) personal delivery or (b) three days after sending via certified, registered mail, or deposit with a globally recognized courier. Spectora may also provide notices to you electronically, including but not limited to through the Site or Service, which will be deemed given to you upon dispatch including if the last email address you provided to us is invalid, or for any reason that any such notice is not capable of delivery to you. You may update its address with notice to Spectora in accordance with this Section 13.3. You are responsible for providing us with your most current email address and updating it as applicable. You may give us notice through the Site or Service or at 1005 S. Gaylord St., Denver, CO 80209. Such notice will be deemed given when received by Spectora by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the foregoing address.
13.4 Miscellaneous. This Agreement (including all terms, conditions and policies incorporated by reference) and the Order(s) constitute the entire agreement between the parties regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In the event of any conflict or inconsistency between an Order and this Agreement, this Agreement will prevail. Your purchases are not contingent on delivery of any future functionality or features. The terms in any of your purchase order, business form, online terms (i.e. click-wrap or browse-wrap), or invoicing portal will not amend or modify this Agreement and are expressly rejected; any of this documentation is for your own administrative purposes only and is not binding on Spectora. Waivers must be signed by the waiving party’s authorized representative and cannot be implied. Without limiting the generality of the foregoing, Spectora’s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Spectora’s right to subsequently enforce such provision or any other provisions of this Agreement. If any word, phrase, term, condition or other clause or provision of this Agreement is held invalid, illegal, or unenforceable, such word, phrase, term, condition or other clause or provision shall be deemed to be severable from the remainder of this Agreement and shall not cause the invalidity, illegality or unenforceability of the remainder of this Agreement. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation.
13.5 Updates. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective immediately on posting to the Site. If we determine, in our sole discretion, that any modification is material, we will provide notice of such material modification to you through the Service, Site (including through our blogs and forums) and/or in accordance with Section 13.3. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Service after the effective date of the modifications will be deemed acceptance of the modified terms.