Terms and Conditions
SAAS SERVICE AND SUPPORT
Subject to the terms of this Agreement, Specular grants Customer a non-exclusive right to access and use the Service for Customer’s internal business purposes. As part of the registration process, Customer will identify an administrative User, including user name and password for Customer’s Specular account. Subject to the terms hereof, Specular will provide Customer with reasonable technical support services as set forth in the Order Form. Only Users may access or use the Service. Each User must keep its login credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and actions taken through their accounts (excluding misuse of accounts caused by Specular’s breach of this Agreement) and for all activity that occurs on a User account. Customer will promptly notify Specular if it becomes aware of any compromise of its User login credentials. Due to the nature of artificial intelligence and machine learning, information generated by these types of features may be incorrect or inaccurate. Service and Content features that include artificial intelligence or machine learning models are not human and are not a substitute for human oversight.Before submitting Personal Data, Customer must enter into a data processing agreement with Specular (“DPA”). If the parties have a DPA, each party will comply with its obligations in the DPA, the terms of the DPA will control each party’s rights and obligations as to Personal Data, and the terms of the DPA will control in the event of any conflict with this Agreement. Specular may, at its discretion, change or update the Service from time to time. Specular will notify Customer in advance of changes to the Service that materially changes its functionality.
RESTRICTIONS AND RESPONSIBILITIES
Customer will not (and will not permit anyone else to) do any of the following: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or Content (except to the extent expressly permitted by applicable law); (b) modify, translate, or create derivative works based on the Service or any Content (except to the extent expressly permitted by Specular or authorized within the Service); (c) use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; (d) remove any proprietary notices or labels; (e) use the Service to develop a similar or competing product or service; or (f) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way.Customer will not use the Service to: (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) interfere with or disrupt the integrity or performance of the Service, Content, or the data contained therein; or (e) attempt to gain unauthorized access to the Service or its related systems or networks.Although Specular has no obligation to monitor Customer’s use of the Service, Specular may do so and may prohibit any use of the Service it believes may be (or alleged to be) in violation of the foregoing.Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
INTELLECTUAL PROPERTY
Customer hereby grants Specular the non-exclusive, worldwide right to use, copy, store, transmit, display, modify and create derivative works of Customer Content, but only as needed to provide the Service and related support to Customer under this Agreement. This includes the right for Specular to use Customer Content internally to improve the Service, including through machine learning techniques, but only in a form that does not individually identify Customer and is aggregated with other Specular customers. In addition, Specular may disclose Customer Content externally only if the Customer Content is anonymized and aggregated such that the Customer Content cannot be de-anonymized and de-aggregated.Specular may collect Usage Data and use it to operate, improve and support the Service and for other lawful business practices, such as analytics, benchmarking and reports. If Customer provides Specular with feedback or suggestions regarding the Service or other Specular products or offerings, Specular may freely use the feedback or suggestions without restriction or obligation.Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Specular’s use rights in this Agreement, as between the parties, Customer retains all intellectual property and other rights in Customer Content. Except for Customer’s use rights in this Agreement, as between the parties, Specular retains all intellectual property and other rights in the Service, Content, and any related technology, algorithms, and reports, including any modifications or improvements to these items made by or on behalf of Specular.
CONFIDENTIALITY
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose non-public business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Specular includes non-public information regarding features, functionality and performance of the Service or Content. Proprietary Information of Customer includes Customer Content. The Receiving Party agrees: (a) to take reasonable precautions to protect the Disclosing Party’s Proprietary Information, and (b) not to use or divulge to any third person any such Proprietary Information (except in connection with its exercising its rights or performing its obligations under this Agreement). The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof (except in the case of trade secrets) or any information that the Receiving Party can document: (a) is or becomes generally available to the public through no act or omission of the Receiving Party; or (b) was in its possession or known by it with no obligation of confidentiality prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of or reference to any Proprietary Information of the Disclosing Party. Nothing in this Agreement prohibits a Receiving Party from making disclosures of the Disclosing Party’s Proprietary Information if required by applicable law, subpoena, or court order, provided (if permitted by law) it notifies the Disclosing Party in advance and cooperates (at the Disclosing Party’s expense) in any effort to obtain confidential treatment for such required disclosure.
DISCLAIMERS
EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 8.3, SPECULAR DOES NOT WARRANT THAT THE SERVICE OR CONTENT WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.3, THE SERVICE AND CONTENT, INCLUDING ANY INFORMATION GENERATED BY THE SERVICE, ARE PROVIDED “AS IS” AND SPECULAR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF SPECULAR TO ANY THIRD PARTY. SPECULAR, ITS SUPPLIERS AND LICENSORS, AND THEIR RESPECTIVE OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR THE SERVICE UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER THEORY FOR: (A) ERROR OR INTERRUPTION OF USE, (B) LOSS OR INACCURACY OR CORRUPTION OF DATA, (C) COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS, OR (D) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
LIMITATION OF LIABILITY
EXCEPT FOR EXCLUDED CLAIMS AND UNLIMITED CLAIMS, NEITHER PARTY (NOR ITS SUPPLIERS OR LICENSORS) WILL HAVE ANY LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH CLAIMS IN ADVANCE.EXCEPT FOR EXCLUDED CLAIMS AND UNLIMITED CLAIMS, EACH PARTY’S ENTIRE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNTS PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.EXCEPT FOR UNLIMITED CLAIMS, EACH PARTY’S ENTIRE LIABILITY ARISING OUT OF OR RELATING TO EXCLUDED CLAIMS WILL NOT EXCEED, IN THE AGGREGATE, 2X THE AMOUNTS PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
INDEMNITY
Specular will defend Customer from and against any third-party claim to the extent alleging that the Service, when used by Customer as authorized in this Agreement, infringes a third party’s U.S. patent, copyright, trademark or trade secret, and will indemnify and hold harmless Customer against any damages or costs awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by Specular resulting from the claim. The foregoing obligations do not apply with respect to portions or components of the Service: (a) not supplied by Specular; (b) made in whole or in part in accordance with Customer specifications; (c) that are modified after delivery by Specular; (d) combined with other products, processes or materials where the alleged infringement relates to such combination; (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (f) where Customer’s use of the Service is not strictly in accordance with this Agreement.Customer will defend Specular from and against any third-party claim to the extent arising out of or in connection with Customer Content or Customer’s breach of Section 2 (Restrictions and Responsibilities), and will indemnify and hold harmless Specular against any damages or costs awarded against Specular (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the claim.If, due to a claim of infringement, the Service is held by a court of competent jurisdiction to be or is reasonably believed by Specular to be infringing, Specular may, at its option and expense: (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (b) obtain for Customer a license to continue using the Service; or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service. The indemnifying party’s obligations in this Section 11 are contingent upon the indemnified party (a) promptly notifying the indemnifying party of the claim, (b) giving the indemnifying party sole control over the investigation, defense, and settlement of the claim, and (c) providing reasonable assistance at the indemnifying party’s expense. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault. The indemnified party may participate in a claim with its own counsel at its own expense.This Section 11 (Indemnity) describes each party’s exclusive remedy and the indemnifying party’s entire liability for any claim covered by the indemnity obligations herein.
GENERAL PROVISIONS
Amendments. Except as otherwise set forth in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless set forth in writing and signed by the parties.
Governing Law, Jurisdiction, and Venue.
This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in San Francisco, California and both parties submit to the personal jurisdiction of those courts.
Notices.
Except as otherwise expressly set forth in this Agreement, any notice or consent under this Agreement must be in writing to the respective address on the Order Form and will be deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered U.S. mail (return receipt requested), or (c) one day after dispatch if by a commercial overnight delivery service. Either party may update its address with notice to the other party. Specular may also send operational notices to Customer by email or through the Service.
Subcontractors.
Specular may use subcontractors and permit them to exercise Specular’s rights, but Specular remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
Assignment.
Either party may assign this Agreement in its entirety, without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, and an assigning party must provide the other party with prompt notice following such event. Any other attempt to transfer or assign this Agreement, in whole or in part, is void. This Agreement will be binding upon and inure to the benefit of the parties and their respective, permitted successors and assigns.
Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, joint venture, or agency relationship between the parties. There are no third-party beneficiaries under this Agreement.
Interpretation.
The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any ambiguity in the Agreement will be interpreted equitably without regard to which party drafted the Agreement. “Including” and “include” will be construed to mean “including without limitation.
Force Majeure.
Other than obligations to pay, neither party will be liable for inadequate performance to the extent caused by a condition or event (for example, natural disaster, pandemic, act of war or terrorism, labor disputes, governmental action, utilities failures, third-party vendor failures, and Internet disturbance) that was beyond its reasonable control. No failure of telecommunications or network systems will be considered a service outage or service deficiency for any purpose under this Agreement.
Remedies.
The parties agree that a breach of Section 2 (Restrictions and Responsibilities), Section 3 (Intellectual Property), or Section 4 (Confidentiality) would cause irreparable injury and that the harmed party will have the right to seek immediate equitable relief to enjoin such activity, in addition to whatever remedies it may have at law, without the need for posting a bond.
Waiver.
No failure or delay by either party in exercising a right under this Agreement will constitute a waiver of that right. A waiver of a default is not a waiver of any subsequent default.
Severability.
If a court of competent jurisdiction finds any term of this Agreement to be unenforceable, the unenforceable term will be modified to reflect the parties’ intention and only to the extent necessary to make the term enforceable. The remaining provisions of the Agreement will remain in effect.
Counterparts.
This Agreement and any Order Form may be executed in counterparts, which taken together will constitute one instrument, and may be executed and delivered electronically.
Export Compliance.
The Service may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction and Customer is responsible for compliance regarding Customer’s and its Authorized Users’ use of the Service. Customer will not permit Authorized Users to use the Service from a U.S. embargoed country. Further, Customer may not remove or export from the United States or allow the export or re-export of the Service, Content, or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
DEFINITIONS
“Affiliate” means an entity directly or indirectly owned or controlled by a party, where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity
“Content” means the audio and visual information, documents, software, products and services contained in or made available via the Service, other than Customer Content.
“Customer Content” means the input, data, information, or material that Customer or Users submit to the Service in the course of using the Service, but excludes User Data.
“Excluded Claims” means (a) either party’s breach of Section 4 (Confidentiality), and (b) either party’s breach of Section 1.5 and the obligations in the DPA.
“Order Form” means Specular Order Form under which Customer places orders for the Service under the terms of this Agreement.
“Personal Data” will have the meaning(s) set forth in the applicable laws for personal information, personal data, personally identifiable information, or other similar term.
“Unlimited Claims” means (a) Customer’s breach of Section 2 (Restrictions and Responsibilities), (b) amounts payable to third parties as part of an indemnifying party’s obligations in Section 11 (Indemnity), and (c) liability for claims which are prohibited from being limited under applicable laws.
“Usage Data” means all data associated with a User’s use of the Service, including all metadata and paradata associated with such data, but excludes Customer Content.
“User” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Specular at Customer’s request).
“Specular Technology” means all of Specular’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Specular in providing the Service.
Subject to the terms of this Agreement, Specular grants Customer a non-exclusive right to access and use the Service for Customer’s internal business purposes. As part of the registration process, Customer will identify an administrative User, including user name and password for Customer’s Specular account. Subject to the terms hereof, Specular will provide Customer with reasonable technical support services as set forth in the Order Form. Only Users may access or use the Service. Each User must keep its login credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and actions taken through their accounts (excluding misuse of accounts caused by Specular’s breach of this Agreement) and for all activity that occurs on a User account. Customer will promptly notify Specular if it becomes aware of any compromise of its User login credentials. Due to the nature of artificial intelligence and machine learning, information generated by these types of features may be incorrect or inaccurate. Service and Content features that include artificial intelligence or machine learning models are not human and are not a substitute for human oversight.Before submitting Personal Data, Customer must enter into a data processing agreement with Specular (“DPA”). If the parties have a DPA, each party will comply with its obligations in the DPA, the terms of the DPA will control each party’s rights and obligations as to Personal Data, and the terms of the DPA will control in the event of any conflict with this Agreement. Specular may, at its discretion, change or update the Service from time to time. Specular will notify Customer in advance of changes to the Service that materially changes its functionality.
RESTRICTIONS AND RESPONSIBILITIES
Customer will not (and will not permit anyone else to) do any of the following: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or Content (except to the extent expressly permitted by applicable law); (b) modify, translate, or create derivative works based on the Service or any Content (except to the extent expressly permitted by Specular or authorized within the Service); (c) use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; (d) remove any proprietary notices or labels; (e) use the Service to develop a similar or competing product or service; or (f) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way.Customer will not use the Service to: (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) interfere with or disrupt the integrity or performance of the Service, Content, or the data contained therein; or (e) attempt to gain unauthorized access to the Service or its related systems or networks.Although Specular has no obligation to monitor Customer’s use of the Service, Specular may do so and may prohibit any use of the Service it believes may be (or alleged to be) in violation of the foregoing.Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
INTELLECTUAL PROPERTY
Customer hereby grants Specular the non-exclusive, worldwide right to use, copy, store, transmit, display, modify and create derivative works of Customer Content, but only as needed to provide the Service and related support to Customer under this Agreement. This includes the right for Specular to use Customer Content internally to improve the Service, including through machine learning techniques, but only in a form that does not individually identify Customer and is aggregated with other Specular customers. In addition, Specular may disclose Customer Content externally only if the Customer Content is anonymized and aggregated such that the Customer Content cannot be de-anonymized and de-aggregated.Specular may collect Usage Data and use it to operate, improve and support the Service and for other lawful business practices, such as analytics, benchmarking and reports. If Customer provides Specular with feedback or suggestions regarding the Service or other Specular products or offerings, Specular may freely use the feedback or suggestions without restriction or obligation.Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Specular’s use rights in this Agreement, as between the parties, Customer retains all intellectual property and other rights in Customer Content. Except for Customer’s use rights in this Agreement, as between the parties, Specular retains all intellectual property and other rights in the Service, Content, and any related technology, algorithms, and reports, including any modifications or improvements to these items made by or on behalf of Specular.
CONFIDENTIALITY
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose non-public business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Specular includes non-public information regarding features, functionality and performance of the Service or Content. Proprietary Information of Customer includes Customer Content. The Receiving Party agrees: (a) to take reasonable precautions to protect the Disclosing Party’s Proprietary Information, and (b) not to use or divulge to any third person any such Proprietary Information (except in connection with its exercising its rights or performing its obligations under this Agreement). The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof (except in the case of trade secrets) or any information that the Receiving Party can document: (a) is or becomes generally available to the public through no act or omission of the Receiving Party; or (b) was in its possession or known by it with no obligation of confidentiality prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of or reference to any Proprietary Information of the Disclosing Party. Nothing in this Agreement prohibits a Receiving Party from making disclosures of the Disclosing Party’s Proprietary Information if required by applicable law, subpoena, or court order, provided (if permitted by law) it notifies the Disclosing Party in advance and cooperates (at the Disclosing Party’s expense) in any effort to obtain confidential treatment for such required disclosure.
DISCLAIMERS
EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 8.3, SPECULAR DOES NOT WARRANT THAT THE SERVICE OR CONTENT WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.3, THE SERVICE AND CONTENT, INCLUDING ANY INFORMATION GENERATED BY THE SERVICE, ARE PROVIDED “AS IS” AND SPECULAR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF SPECULAR TO ANY THIRD PARTY. SPECULAR, ITS SUPPLIERS AND LICENSORS, AND THEIR RESPECTIVE OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR THE SERVICE UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER THEORY FOR: (A) ERROR OR INTERRUPTION OF USE, (B) LOSS OR INACCURACY OR CORRUPTION OF DATA, (C) COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS, OR (D) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
LIMITATION OF LIABILITY
EXCEPT FOR EXCLUDED CLAIMS AND UNLIMITED CLAIMS, NEITHER PARTY (NOR ITS SUPPLIERS OR LICENSORS) WILL HAVE ANY LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH CLAIMS IN ADVANCE.EXCEPT FOR EXCLUDED CLAIMS AND UNLIMITED CLAIMS, EACH PARTY’S ENTIRE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNTS PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.EXCEPT FOR UNLIMITED CLAIMS, EACH PARTY’S ENTIRE LIABILITY ARISING OUT OF OR RELATING TO EXCLUDED CLAIMS WILL NOT EXCEED, IN THE AGGREGATE, 2X THE AMOUNTS PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
INDEMNITY
Specular will defend Customer from and against any third-party claim to the extent alleging that the Service, when used by Customer as authorized in this Agreement, infringes a third party’s U.S. patent, copyright, trademark or trade secret, and will indemnify and hold harmless Customer against any damages or costs awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by Specular resulting from the claim. The foregoing obligations do not apply with respect to portions or components of the Service: (a) not supplied by Specular; (b) made in whole or in part in accordance with Customer specifications; (c) that are modified after delivery by Specular; (d) combined with other products, processes or materials where the alleged infringement relates to such combination; (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (f) where Customer’s use of the Service is not strictly in accordance with this Agreement.Customer will defend Specular from and against any third-party claim to the extent arising out of or in connection with Customer Content or Customer’s breach of Section 2 (Restrictions and Responsibilities), and will indemnify and hold harmless Specular against any damages or costs awarded against Specular (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the claim.If, due to a claim of infringement, the Service is held by a court of competent jurisdiction to be or is reasonably believed by Specular to be infringing, Specular may, at its option and expense: (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (b) obtain for Customer a license to continue using the Service; or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service. The indemnifying party’s obligations in this Section 11 are contingent upon the indemnified party (a) promptly notifying the indemnifying party of the claim, (b) giving the indemnifying party sole control over the investigation, defense, and settlement of the claim, and (c) providing reasonable assistance at the indemnifying party’s expense. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault. The indemnified party may participate in a claim with its own counsel at its own expense.This Section 11 (Indemnity) describes each party’s exclusive remedy and the indemnifying party’s entire liability for any claim covered by the indemnity obligations herein.
GENERAL PROVISIONS
Amendments. Except as otherwise set forth in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless set forth in writing and signed by the parties.
Governing Law, Jurisdiction, and Venue.
This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in San Francisco, California and both parties submit to the personal jurisdiction of those courts.
Notices.
Except as otherwise expressly set forth in this Agreement, any notice or consent under this Agreement must be in writing to the respective address on the Order Form and will be deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered U.S. mail (return receipt requested), or (c) one day after dispatch if by a commercial overnight delivery service. Either party may update its address with notice to the other party. Specular may also send operational notices to Customer by email or through the Service.
Subcontractors.
Specular may use subcontractors and permit them to exercise Specular’s rights, but Specular remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
Assignment.
Either party may assign this Agreement in its entirety, without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, and an assigning party must provide the other party with prompt notice following such event. Any other attempt to transfer or assign this Agreement, in whole or in part, is void. This Agreement will be binding upon and inure to the benefit of the parties and their respective, permitted successors and assigns.
Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, joint venture, or agency relationship between the parties. There are no third-party beneficiaries under this Agreement.
Interpretation.
The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any ambiguity in the Agreement will be interpreted equitably without regard to which party drafted the Agreement. “Including” and “include” will be construed to mean “including without limitation.
Force Majeure.
Other than obligations to pay, neither party will be liable for inadequate performance to the extent caused by a condition or event (for example, natural disaster, pandemic, act of war or terrorism, labor disputes, governmental action, utilities failures, third-party vendor failures, and Internet disturbance) that was beyond its reasonable control. No failure of telecommunications or network systems will be considered a service outage or service deficiency for any purpose under this Agreement.
Remedies.
The parties agree that a breach of Section 2 (Restrictions and Responsibilities), Section 3 (Intellectual Property), or Section 4 (Confidentiality) would cause irreparable injury and that the harmed party will have the right to seek immediate equitable relief to enjoin such activity, in addition to whatever remedies it may have at law, without the need for posting a bond.
Waiver.
No failure or delay by either party in exercising a right under this Agreement will constitute a waiver of that right. A waiver of a default is not a waiver of any subsequent default.
Severability.
If a court of competent jurisdiction finds any term of this Agreement to be unenforceable, the unenforceable term will be modified to reflect the parties’ intention and only to the extent necessary to make the term enforceable. The remaining provisions of the Agreement will remain in effect.
Counterparts.
This Agreement and any Order Form may be executed in counterparts, which taken together will constitute one instrument, and may be executed and delivered electronically.
Export Compliance.
The Service may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction and Customer is responsible for compliance regarding Customer’s and its Authorized Users’ use of the Service. Customer will not permit Authorized Users to use the Service from a U.S. embargoed country. Further, Customer may not remove or export from the United States or allow the export or re-export of the Service, Content, or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
DEFINITIONS
“Affiliate” means an entity directly or indirectly owned or controlled by a party, where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity
“Content” means the audio and visual information, documents, software, products and services contained in or made available via the Service, other than Customer Content.
“Customer Content” means the input, data, information, or material that Customer or Users submit to the Service in the course of using the Service, but excludes User Data.
“Excluded Claims” means (a) either party’s breach of Section 4 (Confidentiality), and (b) either party’s breach of Section 1.5 and the obligations in the DPA.
“Order Form” means Specular Order Form under which Customer places orders for the Service under the terms of this Agreement.
“Personal Data” will have the meaning(s) set forth in the applicable laws for personal information, personal data, personally identifiable information, or other similar term.
“Unlimited Claims” means (a) Customer’s breach of Section 2 (Restrictions and Responsibilities), (b) amounts payable to third parties as part of an indemnifying party’s obligations in Section 11 (Indemnity), and (c) liability for claims which are prohibited from being limited under applicable laws.
“Usage Data” means all data associated with a User’s use of the Service, including all metadata and paradata associated with such data, but excludes Customer Content.
“User” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Specular at Customer’s request).
“Specular Technology” means all of Specular’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Specular in providing the Service.