Subscription Agreement
PLEASE READ THIS Ally SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE ACCEPTING THIS AGREEMENT AND SUBSCRIBING TO USE THE SERVICE DESCRIBED IN THIS AGREEMENT. BY CLICKING “I ACCEPT” BELOW OR BY USING THE Ally WEBSITE (THE “SITE”) AND ITS SERVICE, YOU INDICATE YOUR ACCEPTANCE OF THE ENTIRE AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, CLICK “I DO NOT ACCEPT” BELOW AND DO NOT USE THE SERVICE.
THIS SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) GOVERNS YOUR USE OF SPILLMAN’S Ally SERVICE. IF YOU REGISTER FOR A FREE TRIAL FOR SPILLMAN’S Ally SERVICE, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. This Agreement is effective between You and Spillman Technologies Inc. (“Spillman”) as of the date You accept this Agreement.
If you are entering into this Agreement on behalf of a governmental agency or other entity, You represent that You have the authority to bind such entity to these terms and conditions. If you are a User accessing the Service in connection with the business of such an entity, the entity must first have agreed to the terms of this Agreement, and this Agreement is also binding upon you individually.
You may not access the Service if You are a direct competitor of Spillman, except with Spillman’s express prior written consent. In addition, You may not access the Service for purposes of monitoring it for any benchmarking or competitive purposes.
1. DEFINITIONS
"Malicious Code" means any virus, worm, trap door, back door, snoopware, spyware, malicious logic, Trojan horse, time bomb or other malicious functionality that would intentionally erase or render data and programs unusable or intentionally interfere with or monitor the Service or Your computer system.
"Order Form" means the electronic or written documents for placing orders hereunder, that are entered into between You and Spillman from time to time, including addenda and supplements thereto. Order Forms are incorporated into this Agreement by reference.
"Service" means the Ally subscription service and any related products and services that are made available by Spillman online via the customer login link at SpillmanAlly.com and/or other web pages designated by Spillman, including associated offline components. “Service” excludes Third Party Applications.
"Third Party Applications" means online applications and offline software products that are provided by entities or individuals other than Spillman and are clearly identified as such, and that interoperate with the Service, including but not limited to those listed on the Site.
"Users" means your employees who are authorized by You to use the Service for the benefit of your own internal business, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Spillman at Your request). You may only permit consultants or other third parties to become Users with Spillman’s express prior written consent.
"You" or "Your" means the agency or other legal entity on behalf of which the person accepting this Agreement is acting, and/or individual Users accessing the Service on behalf of such entity, as applicable.
"Your Data" means all electronic data or information submitted by You to the Service.
2. FREE TRIAL. If You register on Spillman’s SpillmanAlly.com website for a free trial, Spillman will make the Service available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) the start date of any purchased Service ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICE, AND ANY CUSTOMIZATIONS MADE TO THE SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE OR UPGRADED SERVICE, BEFORE THE END OF THE TRIAL PERIOD. DURING THE FREE TRIAL PERIOD THE SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, NOTWITHSTANDING SECTION 9 (WARRANTIES AND LIMITATIONS).
3. PURCHASED SERVICE
3.1. Provision of Purchased Service. Spillman shall make the Service available to You pursuant to the terms of this Agreement and the relevant Order Forms during a purchased subscription term. You agree that Your purchase of the Service is not dependent on any promises or representations that may have been made by Spillman representatives with respect to any future features or functions of the Service.
3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) the Service is purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.
4. USE OF THE SERVICE
4.1. Spillman’s Responsibilities. Spillman shall:
(a) provide Spillman’s basic support for purchased Service to You at no additional charge, and/or upgraded support if purchased separately;
(b) use commercially reasonable efforts to allow You to access the Service seven (7) days per week, twenty-four (24) hours per day, excluding downtime (i) scheduled in advance for maintenance on a periodic basis, (ii) due to faults caused by You or Your system, or (iii) due to other causes outside of the reasonable control of Spillman, including without limitation interruption of Internet services by any third party network or ISP; and
(c) maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Spillman shall not (i) modify Your Data, (ii) disclose Your Data except as compelled by law or as expressly permitted or instructed by You (or a third party agency authorized by you) in writing, or (iii) use Your Data except to provide the Service and to address service or technical problems, or at Your request in connection with support or other matters.
4.2 Your Responsibilities. You shall:
(a) be responsible for Users’ compliance with this Agreement;
(b) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data;
(c) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Spillman promptly of any such unauthorized access or use;
(d) use the Service only in accordance with Spillman’s user instructions and applicable laws and government regulations;
(e) designate a Spillman Application Administrator who is qualified to operate the Service, has been certified pursuant to Spillman’s standard procedures, and is familiar with the information, calculations, and reports that serve as input and output of the Service. Spillman reserves the right to refuse assistance or to charge additional fees if the Spillman Application Administrator seeks assistance with respect to such basic background information or any other matters not directly relating to the operation of the Software; and
(f) not (i) make the Service available to anyone other than authorized Users, (ii) sell, resell, rent or lease the Service, (iii) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) use the Service to store or transmit Malicious Code, (v) interfere with or disrupt the integrity or performance of the Service or third party data contained therein, or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
4.3 Usage Limitations. The Service may be subject to other limitations, such as, for example, limits on storage space, on the number of calls You are permitted to make against Spillman’s Ally application programming interface, and, for any portion of the Service that enables You to provide public websites, on the number of page views by visitors to those websites.
5. THIRD PARTY PROVIDERS
5.1 Acquisition of Third Party Products and Services. Spillman or third parties may from time to time make available to You third party products or services, including but not limited to Third Party Applications and implementation, customization and other consulting services. Any acquisition by You of such third party products or services, and any exchange of data between You and any third party provider, is solely between You and that provider. Spillman does not warrant or support third party products or services except as specified in an Order Form. Subject to Section 5.3 (Integration with Third Party Services), no purchase of Third Party products or services is required to use the Service except a supported computing device, operating system, web browser and Internet connection.
5.2 Third Party Applications and Your Data. If You install or enable Third Party Applications for use with the Service, You acknowledge that Spillman may allow providers of those Third Party Applications to access Your Data as required for the interoperation of such Third Party Applications with the Service. Spillman shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third Party Application providers. The Service shall allow You to restrict such access by restricting Users from installing or enabling such Third Party Applications for use with the Service.
5.3 Integration with Third Party Services. The Service may contain features designed to interoperate with Third Party Applications. To use such features, You may be required to obtain access to such Third Party Applications from their providers. If the provider of any such Third Party Application ceases to make the Third Party Application available for interoperation with the corresponding Service features on reasonable terms, Spillman may cease providing such Service features without entitling You to any refund, credit, or other compensation.
6. FEES AND PAYMENT FOR SERVICE
6.1 Fees. The fees for the Service and the price for all services and third party products are specified in the applicable Order Form. You will provide Spillman with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Spillman. If You provide credit card information to Spillman, You authorize Spillman to charge such credit card for all Service listed in the Order Form for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Spillman will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Spillman and notifying Spillman of any changes to such information.
6.2 Taxes. You are solely responsible for the payment of any and all taxes resulting from this Agreement and its purchase of the products and services described herein (excluding taxes on Spillman’s net income). If You are a tax-exempt organization, You will provide Spillman with documentation required by the taxing authority to support such exemption.
6.3 Late Payments. If You fail to pay any amounts owed when due, Spillman may assess interest at one-and-one-half percent (1.5%) per month on all overdue amounts, or the highest rate permitted by law, whichever is less. You shall also be liable for all costs of collection, including reasonable attorney's fees, whether or not a suit is instituted.
6.4 Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Spillman’s services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Spillman to charge to Your credit card), Spillman may, without limiting Spillman’s other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and/or suspend your access to the Service and Spillman’s other services to You until such amounts are paid in full. Spillman will give You at least 7 days’ prior notice that Your account is overdue before suspending services to You. If you do not pay all overdue fees within 30 days of the suspension of the Service, Spillman may terminate this Agreement, cancel the Service and, unless legally prohibited, delete all of Your Data in Spillman’s systems.
7. PROPRIETARY RIGHTS
7.1 Reservation of Rights in Service. Subject to the limited rights expressly granted hereunder, Spillman reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2 Restrictions. You shall not (i) permit any third party to access the Service except as permitted herein or in an Order Form, (ii) create derivate works based on the Service except as authorized herein, (iii) copy, frame or mirror any part or content of the Service, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Service, or (v) access the Service in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Service.
7.3 Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Service, You authorize Spillman to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Spillman to provide the Service in accordance with this Agreement. Subject to the above, Spillman acquires no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
7.4 Your Data. Subject to the limited rights granted by You hereunder, Spillman acquires no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
7.5 Suggestions. Spillman shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Service.
7.6 U.S. Government Restricted Rights.
Any software obtained from this web site for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”) is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).
8. CONFIDENTIALITY
8.1 Definition. “Confidential Information” means any non-public information provided by either party to the other in connection with this Agreement, including the System, Spillman’s pricing, future product plans, trade secrets; know-how; a party’s non-public business and financial information; Your Data; and any written materials marked as confidential and any other information, including visual or oral information, which reasonably should be understood to be confidential. Confidential Information does not include information that a party can prove: (a) is now or later becomes generally available to the public without fault of the receiving party; (b) was rightfully in the receiving party’s possession prior to its disclosure by the disclosing party; (c) is independently developed by the receiving party without the use of any Confidential Information of the other party; or (d) is obtained by the receiving party without obligation of confidentiality from a third party who has the right to disclose it. Additionally, a party may disclose Confidential Information to the extent required by a judicial or legislative order or proceeding, provided that the receiving party gives the other party prompt prior notice of the intended disclosure and an opportunity to respond or object to the disclosure, if permissible..
8.2 Use and Disclosure. Each party shall keep confidential all Confidential Information provided to it by the other party, and shall not use such Confidential Information for any purpose other than the proper purposes of this Agreement. A party may disclose Confidential Information only to its employees and contractors who need to know such information, and who are bound to keep such information confidential. Each party shall give the other party’s Confidential Information at least the same level of protection as it gives its own confidential information of similar nature, but not less than a reasonable level of protection.
8.3 Restrictions on Disclosure. You must not disclose the System, its documentation or instructions, or any other Spillman documentation, (i) to any competitor of Spillman, or (ii) to any other third party unless it has a need to know such information for the proper purposes of this Agreement. All confidentiality obligations shall survive termination of this Agreement.
8.4 Injunctive Relief. Each party agrees that money damages would not be a sufficient remedy for any breach of the obligations herein and that the disclosing party shall be entitled to seek specific injunctive relief as a remedy for any such breach, without the necessity of posting bond, in addition to all other available legal or equitable remedies
9. WARRANTIES AND LIMITATIONS
9.1 By Spillman. Spillman represents and warrants to You that it has the power and authority to enter into this Agreement and perform its obligations hereunder, and such performance will not breach any separate agreement by which Spillman is bound.
9.2 By You. You warrant and represent to Spillman that:
(a) You have the power and authority to enter into this Agreement and perform Your obligations hereunder, and such performance will not breach any separate agreement by which You are bound;
(b) You will comply with the laws, rules and regulations that apply to You in connection with the conduct of Your business and Your use of the Service; and
(c) You will not utilize (or allow utilization of) the Service in any manner prohibited by this Agreement or written Spillman instructions or policies provided to You, or violate or tamper with the security of any part of the Service.
9.3 Limitation of Warranties. THE SERVICE IS PROVIDED “AS IS”. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SPILLMAN AND ITS LICENSORS DISCLAIM ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE SERVICE, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, TITLE, NON-INFRINGEMENT, AND ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE.
10. LIMITATION OF DAMAGES
10.1 Limitation of Liability. THE CUMULATIVE LIABILITY OF SPILLMAN AND ITS LICENSORS TO YOU FOR ALL CLAIMS RELATING TO THE SERVICE AND THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION UNDER CONTRACT, TORT, OR STRICT LIABILITY LAW, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID BY YOU TO SPILLMAN HEREUNDER DURING THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CLAIM(S) AROSE. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective. Spillman shall have no liability for the loss of Your Data, it being understood that You are responsible for reasonable backup precautions.
10.2 Limitation of Damages. IN NO EVENT SHALL SPILLMAN AND ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS; ANY INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR ANY CLAIMS OR DEMANDS BROUGHT AGAINST YOU BY THIRD PARTIES, EVEN IF SPILLMAN OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. This limitation upon damages and claims is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
11. INDEMNIFICATION.
11.1 By Spillman. Spillman agrees to defend You against any and all third party claims, demands, lawsuits or legal actions ("Claim") arising out of any actual or alleged infringement of any trademark, copyright, trade secret, or U.S. patent by the Service, and Spillman will pay any damages, costs and expenses (including reasonable attorneys’ fees) finally awarded in such action or paid to settle the Claim. Spillman will not be required to indemnify You unless (i) You promptly notify Spillman of any such Claim; (ii) You give Spillman sole control of the defense and all settlement negotiations, and the authority to represent You in defending the Claim; and (iii) You provide Spillman with any information and assistance that Spillman reasonably requests in defending against the Claim. You may, at Your option and expense, be represented by separate counsel in any such Claim. If a court or other legal authority finds that any part of the Service infringes on a third party’s intellectual property rights, or if Spillman believes that it infringes, Spillman will use reasonable efforts to obtain a license under the rights that have been infringed, to modify the Service so it is no longer infringing, or to provide to You a substitute Service that is non-infringing; provided that if in Spillman’s judgment such options are not commercially reasonable, Spillman may terminate the license for the Service or the infringing portion thereof upon written notice to You and refund of any prepaid fees. Spillman will have no liability for infringement arising out of modification of the Service by any party other than Spillman or the combination or use of the Service with any other software, product or process not furnished by Spillman, if use of the Service alone and in its current, unmodified form would not have been an infringement. Spillman is not liable for any infringement claims based upon third party services, software or hardware. This Section 10 states Spillman’s entire obligation with respect to any claim for infringement or misappropriation of any third party intellectual property rights.
11.2 By You. You agree to defend Spillman against any Claim arising out of (a) any actual or alleged infringement by Your Data of any trademark, copyright, trade secret, or U.S. patent; and (b) any allegation that Spillman violated any law or ordinance by sharing Your Data with any third party to which You instructed Spillman to give or allow access to Your Data; and You will pay any damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) finally awarded in such action or paid to settle such a Claim.
11.3 Indemnification Procedure. If a party believes it is entitled to indemnification under this Agreement, it must (a) promptly notify the other party of the Claim; (ii) give the other party sole control of the defense and all settlement negotiations, and the authority to represent such party in defending the Claim; and (iii) provide the other party with any information and assistance that it reasonably requests in defending against the Claim. The indemnified party may, at its option and expense, be represented by separate counsel in any such Claim.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions purchased by You have terminated, unless previously terminated as set forth below. If You elect to use the Service for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
12.2 Term of Purchased User Subscriptions. User subscriptions purchased by You will commence on the start date specified in the applicable Order Form and continue for the subscription term stated on such Order Form. Unless otherwise agreed in the applicable Order Form, User subscriptions will automatically renew for additional terms of one year unless either party gives the other party written notice of non-renewal at least 30 days before the end of the then-current term. Pricing for renewal terms will be the same as the previous term, unless Spillman has given You written notice of a pricing increase at least 60 days before the end of the previous term.
12.3 Termination for Cause. A party may terminate this Agreement for cause if the other party materially breaches this Agreement and fails to cure such breach within 30 days written notice of such breach from the non-breaching party.
12.4 Effect of Termination.
(a) Upon any termination for cause by You, Spillman shall refund You any prepaid fees for the remainder of the term after the date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In any case You are required to pay Spillman all fees due to Spillman for the period prior to termination. If You have any outstanding payment obligations under this Agreement, Spillman may accelerate and declare all such amounts immediately due and payable by You as a liquidated sum and proceed against You in any lawful way for satisfaction of such sum.
(b) If you request within 30 days after the effective date of termination of the Service, Spillman will provide you with read only access to your data, provided that you have paid to Spillman all fees due and owing under this agreement.
(c) Upon termination of this Agreement, Spillman will cease providing access to the Service to You and Your Users. Each party will return to the other party or destroy all Confidential Information of such other party within thirty days of the date of termination.
(d) The terms of Sections 6, 7, 8, 9, 10, 11, 12.4, and 13 will survive termination or expiration of this Agreement.
13. Miscellaneous.
13.1 Entire Agreement – Amendment. This Agreement constitutes the complete agreement between the parties with respect to the Software and other subject matter hereof. No modification of this Agreement shall be binding unless it is in writing and is signed by an authorized representative of each party.
13.2 Assignment. You may not assign or transfer this Agreement or any of its rights or duties hereunder to any third party without Spillman’s prior written consent.
13.3 Governing Law. This Agreement will be governed by the laws of the state of Utah, not including conflicts of laws provisions. The parties hereby submit to the exclusive jurisdiction and venue of Utah state and federal courts with respect to any action between the parties relating to this Agreement. In any such action, the prevailing party shall be entitled to an award of its reasonable costs and attorneys’ fees from the other party.
13.4 No Waiver. Any waiver by either party of a default or obligation under this Agreement will be effective only if in writing. Such a waiver does not constitute a waiver of any subsequent breach or default. No failure to exercise any right or power under this Agreement or to insist on strict compliance by the other party will constitute a waiver of the right in the future to exercise such right or power or to insist on strict compliance.
13.5 Limitation of Actions. No action, whether based on contract, strict liability, or tort, including any action based on negligence, arising out of the performance of services under this Agreement, may be brought by either party more than three (3) years after such cause of action occurred. However, action for nonpayment may be brought within three (3) years the date of the last payment was received by Spillman.
13.6 Notices. Any notices required or permitted under this Agreement shall be in writing and delivered in person or sent by registered or certified mail, return receipt requested, with proper postage affixed, or sent by commercial overnight delivery service with provisions for a receipt.
13.7 Severability. If any term of this Agreement is held to be invalid or void by any court or tribunal of competent jurisdiction, it shall be modified by such court or tribunal to the minimum extent necessary to make it valid and enforceable. If it cannot be so modified, it shall be severed from this Agreement and all the remaining terms of this Agreement shall remain in full force and effect.
13.8 Force Majeure. A party shall be excused from delays or failure to perform its duties, other than payment obligations, to the extent such delays or failures result from acts of nature, riots, war, acts of public enemies, fires, epidemics, labor disputes, or any other causes beyond its reasonable control. The parties will promptly inform and consult with each other as to any of the above causes that in their judgment may or could be the cause of a substantial delay in the performance of this Agreement. Either party may, in its discretion, terminate this Agreement if a delay in performance by the other party exceeds or is reasonably expected to exceed six (6) months.