Terms of Service
Effective: May 1, 2023
Welcome to SpendHQ!
These Terms of Service, together with your Order Form, the SpendHQ Privacy Statement, Data Processing Addendum, and any other applicable Addenda, form the legally-binding “Agreement” between you, our customer (“Customer,” “you,” or “your”), and the SpendHQ entity listed in the Order Form (together with its successors and assigns, “SpendHQ,” “we,” “us” or “our”). Throughout these Terms of Service, you and SpendHQ may be referred to individually as a “Party,” or collectively as the “Parties.”
BY ACCEPTING THESE TERMS OF SERVICE, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OF SERVICE, OR BY ACCESSING ANY PORTION OF THE PLATFORM, YOU CONSENT TO THESE TERMS OF SERVICE.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE PROPER LEGAL AUTHORITY TO BIND THE ENTITY. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU MAY NOT ACCESS OUR PLATFORM OR USE THE SERVICES.
These definitions will help you better understand the Agreement. Bolded terms not defined below will have the meanings set forth elsewhere in the Agreement.
“Addendum” or “Addenda” means any document which provides new or supplemental terms to the Agreement, including any schedules, exhibits or amendments thereto.
“Affiliates” mean any other entity that controls, is controlled by, or under common control with, a party. The term “control,” as used in this definition, means the direct or indirect power to direct the affairs of the other entity through at least 50% of the shares, voting rights, participation, or economic interest in that entity.
“Authorized Users” mean any of your or your Affiliates’ employees, agents or independent contractors who you grant authorization to use the Services and access your Customer Data through the unique log-in credentials provided to the Platform.
“Claims” mean a claim, action, complaint, or legal regulatory body, administrative or judicial proceeding filed against a party.
“Confidential Information” means non-public or proprietary information about a disclosing party’s business related to technical, commercial, financial, employee, or planning information that is disclosed by the disclosing party to the other party in connection with the Agreement, and (a) is identified in writing as confidential at the time of disclosure, whether in printed, textual, graphic, or electronic form; or (b) is not identified as confidential at the time of disclosure, but is by its nature confidential or the receiving party knows, or ought reasonably to know, is confidential. All information provided by SpendHQ to you with respect to the Services, and the terms and conditions of the Agreement (including the pricing that we have offered to you) will be considered our Confidential Information without any marking or further designation. Customer Data will also be considered your Confidential Information without any marking or further designation. “Confidential Information” does not include information that (i) has become public knowledge through no fault of the receiving party; (ii) was known to the receiving party, free of any confidentiality obligations, before its disclosure by the disclosing party; (iii) becomes known to the receiving party, free of any confidentiality obligations, from a source other than the disclosing party; or (iv) is independently developed by the receiving party without use of Confidential Information.
“Customer Data” means any text, images, data or other content entered, uploaded or inputted into the Platform in connection with your SpendHQ account and your or your Authorized Users’ use of the Services. Customer Data also includes any reports or other outputs generated by or through the Platform as related to the Services.
“Deployment Fees” mean the costs and charges associated with initial implementation of Services, as listed in the Order Form.
“Documentation” means the documentation, in all forms, relating to the Services, as we may revise from time to time.
“Effective Date” means the date the Agreement becomes effective, as listed in the Order Form.
“Fees” means the fees associated with Services, in addition to any other costs or charges permitted by the Agreement. Fees may be charged on a one-time or recurring basis. Your Fees for Services are listed in the Order Form.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Modules” mean the specific systems, tools, products, features and functionalities making up the Services, as such Modules may be integrated with the Websites, Platform or SpendHQ Technology.
“Order Form” means the SpendHQ quote or ordering document (including any online version of an Order Form made available by us) accepted by a customer and submitted to us directly or through an authorized SpendHQ reseller. Upon execution by the Parties, or, in the case of electronic orders, confirmation and placement of an order), each Order Form will be subject to the terms and conditions of the Agreement, including these Terms of Service.
“Platform” means the cloud-based software-as-a-service known as “SpendHQ” or, in certain markets, “Per Angusta,” including, without limitation, SpendHQ’s software platform, systems, servers, APIs, websites, mobile applications and any associated SpendHQ Technology that is owned, licensed or operated by SpendHQ or our Affiliates and made commercially available.
“Professional Services” mean consulting services, supplemental training, custom development work, enhanced implementation, or technical support services provided by us or an authorized SpendHQ Partner, as may be further described in an Order Form or separate Statement of Work. We reserve the right, in our sole discretion, to determine what we consider Professional Services.
“Privacy Statement” means the SpendHQ privacy statement, as may be revised from time to time, with the most current version available here.
“Sensitive Personal Information” means an individual’s financial information, sexual preferences, medical or health information protected under any health data protection laws, biometric data (for purposes of uniquely identifying an individual), personal information of children protected under any child protection laws (such as the personal information defined under the US Children’s Online Privacy Protection Act (“COPPA”)) and any additional types of information included within this term or any similar term (such as “sensitive personal information” or “special categories of personal information”) as used in applicable data protection or privacy laws.
“Services” mean the specific Modules that we are willing to provide to you under the Agreement, as specifically listed in an Order Form or multiple Order Forms.
“SpendHQ Partner” means an unaffiliated third-party company that is appointed by SpendHQ to process orders, resell or implement the Services, or provide technical equipment or hardware.
“SpendHQ Technology” means any concepts, inventions, systems, processes, techniques, methodologies, know-how, data, tools, templates, technology (including, without limitation, software in executable code and source code), or any other information, data, materials, and any expressions of the foregoing, developed by, owned by, or licensed to SpendHQ or our Affiliates.
“Team” means all SpendHQ employees, officers, directors, owners, agents and representatives.
“Term” means the Initial Term and any Renewal Terms, as described in the Order Form.
2. PAYMENT OF FEES
This Section applies if your Order Form is directly with us. If your Order Form is with a SpendHQ Partner, then the payment terms will be as agreed between you and the applicable SpendHQ Partner.
2.1 Payments. You agree to pay all Fees described by the Agreement, including, without limitation, all fees for Services. Unless otherwise stated in the Order Form, invoices will be due within 30 days from the date of invoice. Unless other arrangements have been made, we will send all invoices electronically to the billing contact associated with your account. We reserve the right to charge you interest at a monthly rate equal to the lesser of 1.5% per month or the maximum rate permitted by applicable law on any overdue Fees from the due date until the date the overdue amount (plus applicable interest) is paid in full. Except as permitted by the Agreement, all Fees paid are non-refundable. Fees paid are based on Services provided, not your actual usage. Any Fees that remain unpaid as of the date of termination or expiration of the Agreement will become immediately due and payable.
2.2 Failure to Pay. If you fail to pay any amount due under the Agreement and you have not disputed the invoice as described below, then we will send you a reminder notice that payment remains outstanding. If you fail to pay within five (5) days following the reminder notice, then we reserve the right to suspend or restrict your access to the Platform or use of Services until payment is made in full. If non-payment continues for more than 30 days following the reminder notice, then we shall have the right to declare you in default of the Agreement.
2.3 Payment Disputes. If you believe, in good faith, that we have incorrectly billed you for Services, then you must contact us in writing within 30 days from the invoice date with enough detail for us to identify the error alleged and be able to properly investigate it. Unless you notify us of a payment dispute, you will be responsible for paying our reasonable collection costs, which may include, without limitation, our reasonable attorneys’ fees and court costs. You will be required to pay the undisputed portion of any invoice when due.
2.4 Deployment Fees. You will be responsible for paying all Deployment Fees up front, prior to our commencement of any work to implement Services. Deployment Fees, once paid, are considered non-refundable.
2.5 Fee Increases. We reserve the right to increase Fees for Services at the start of each Renewal Term. We agree not to increase Fees for Services by more than seven percent (7%) year over year. If we choose to implement a fee increase, we will provide you with a 30-day written notice (email will be considered sufficient).
2.6. Taxes. Fees are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property or similar taxes, if any. You agree to pay all such taxes, excluding U.S. taxes based on our net income. If you believe you are not subject to the payment of taxes, you must provide us with a tax-exemption certificate. If we are required to pay any taxes on your behalf, then you agree to reimburse us for such amounts within 30 days from your receipt of a special tax-related invoice.
3.1 Implementation. A successful implementation of Services depends on a joint and cooperative undertaking between you and us. There will be things that we will be required to do, and there will be things that you will be required to do. Party responsibilities during the implementation phase, as well as specifications that relate to the implementation, may be described in a separate Addendum. At the outset of the implementation phase, we will discuss with you a target date for all Services to go live. The date that Services are actually delivered will be considered your “Go Live Date,” with delivery being achieved when you and your Authorized Users have access to and use of the Services. We reserve the right to determine your actual Go Live Date. We shall not be liable for any delays or errors caused by your slowness to respond or failure to satisfy your responsibilities during the implementation phase. All implementation dates referenced in the Order Form are best-guess estimates of timing based on similar implementations that we have carried out. However, each implementation is different and our failure to achieve implementation deadlines shall not be considered a material breach of the Agreement or entitle you to a refund for Services.
3.2 Grant of Licensed Rights. Subject to the terms and conditions of the Agreement (including your payment of all Fees), we grant you, during the Term, a limited term, non-exclusive, non-transferrable license to permit your Authorized Users to access the Platform and use Services through our proprietary SpendHQ Technology. These licensed rights do not constitute a sale and do not convey to you or any third party any right of ownership in or to the Platform, Services, SpendHQ Technology, or any of the Intellectual Property Rights therein. All rights not specifically granted under the Agreement are expressly reserved to us.
3.3 Excess Use. The number of permitted seats for Authorized User is described in the Order Form. If the number of concurrent Authorized Users simultaneously accessing the Platform or using Services exceeds the number of allocated seats (a situation of “Excess Use”), then we will notify you by email about the Excess Use and, if you do not reduce the number of Authorized Users within 30 days thereafter, you will be required to pay for an additional block of seats which will be added to your next invoice and will have the effect of automatically updating the Order Form.
3.4 License Restrictions. Except to the extent expressly permitted by the Agreement, you agree, as a condition of the license grant, that you are restricted from and must not:
- use the Platform or Services (i) in violation of applicable law or regulation (including, where applicable, the ADA, COPPA, CAN-SPAM, TCPA, or the Do-Not-Call Implementation Act), or in connection with such unlawful material (such as material that violates any obscenity, defamation, harassment, privacy, publicity or intellectual property laws); or (ii) in a manner that would cause a material risk to the security or operation of the Platform, Services or SpendHQ Technology, or to any of our other customers;
- copy, distribute, republish, download, display, sell, rent, lease, host or sublicense the Platform or Services;
- intentionally try to bypass a security mechanism of the Platform or Services, or intentionally transmit material which contains viruses, Trojan horses, worms or some other harmful computer program;
- attempt to interact with the operating system, networks or software underlying the Platform or Services, or any SpendHQ Technology, or modify, create derivative works of, adapt, translate, reverse-engineer, decompile, or otherwise attempt to discover the underlying technology of the Platform or Services, the source code, data representations, or underlying algorithms, processes and methods associated with any SpendHQ Technology;
- remove, obscure, or alter any proprietary notices associated with the Platform, Services or SpendHQ Technology;
- use any software components, modules, functionalities, features or other services that may be delivered with the Platform or Services, but which are not licensed to you and identified in the Order Form;
- send unsolicited advertising, marketing or promotional materials, whether by email or text, without the recipient’s legally valid consent; or
- violate the Agreement.
We reserve the right to immediately suspend or discontinue your access to the Platform or use of the Services if we have reason to believe you are, or may be, acting in violation of these license restrictions.
3.5 SpendHQ Account. Only you and your Authorized Users have rights to access your SpendHQ account through the Customer Interface. You and Authorized Users are strictly forbidden from sharing or allowing third parties to use it. You must keep log-in credentials to your SpendHQ account secure at all times. If you suspect that your account or credentials have been or are being used by an unauthorized third party, or have been compromised, please contact us immediately at email@example.com. We may attribute all use of your SpendHQ account to you, and you agree to be responsible for all activities that occur under your account. You grant us the right to update any of the contact information associated with your account for billing purposes.
3.6 Third-Party Services. We may, from time to time, make available certain features or functionalities that allow you to integrate the Platform or Services in conjunction with products or services provided by third parties (independent third parties with no affiliation to SpendHQ or its Affiliates) (collectively, “Third Party Services”). You are solely responsible for complying with any applicable terms and conditions (including, without limitation, privacy policies) for Third-Party Services. Any terms and conditions for Third-Party Services will be considered separate from this Agreement.
3.7 Professional Services. Unless included in the Order Form, our Professional Services will require and be subject to a separate Statement of Work. An engagement for Professional Services will be considered separate from Services provided under the Agreement; provided, however, that we may consider any fees associated with Professional Services to be part of the Fees required by the Agreement. We reserve the right to decline any specific request for Professional Services. During the course of our business relationship with you, any information, recommendations, best practices or advice that we might share should be considered for informational purposes only and shall not be considered as formal legal, tax and accounting advice.
3.8 Customer Support. We offer standard customer support for Services at no additional cost. To reach a member of our U.S.-based support team (primarily for SpendHQ customers), please call (877) 419-0619 during core support hours, Monday to Friday, 9:00 am to 6:00 pm EST. To reach a member of our EU-based support team (primarily for Per Angusta customers), please call +33 4 72 69 02 09. Alternately, you can always email your support request to firstname.lastname@example.org at any time. Our goal is to provide an initial response to all support inquiries within 24 hours of ticket submission. More information about our customer support can be accessed at the Websites. Please note that customer support does not include custom development, configuration support, data customization, training or the creation of special reports, modules, features or functionalities not already available as part of the Platform or Services. We reserve the right to treat any of these non-support functions as a request for Professional Services.
4. CUSTOMER DATA
4.1 No Archiving Responsibilities. We are not an archive for your Customer Data and shall have no obligation to keep your Customer Data on the Platform after the Agreement has expired or been terminated. It will be your sole responsibility to maintain appropriate copies of any Customer Data that you consider important on your technology systems or other appropriate storage location.
4.2 Aggregated Anonymous Data. You agree that we may obtain and aggregate technical and other data about your or your Authorized Users’ use of Services that is not personally identifiable (“Aggregated Anonymized Data”), and we may use the Aggregated Anonymized Data to analyze, improve, support and operate the Platform and otherwise for any other business purpose during and after the Term of the Agreement, including, without limitation, to generate industry benchmark, best practice guidance, or issue recommendations in similar reports or resources. In using Aggregated Anonymous Data, we will not identify you as the source.
4.3 Processing of Customer Data. All of our data processing activities will be governed by the Data Processing Addendum (“DPA”), which shall be considered incorporated by reference into this Agreement.
5.1 Changes to these Terms of Service. We shall have the right to modify these Terms of Service at any time to reflect changes in our policies, industry requirements or applicable law. We may post Minor Changes to the Websites without notifying you in advance. A “Minor Change” is any modification to the Terms of Service that does not reduce your legal rights under the Agreement. We will notify you at least 10 days in advance of any Material Change to the Terms of Service by emailing you at the contact address associated with your SpendHQ account. A “Material Change” is any modification in the Terms of Service that reduces your legal rights under the Agreement. If you object to a Material Change within 10 days of notification, then the Material Change will not apply to you and you will continue to be subject to the previous, unmodified version of the Terms of Service; provided, however, that the Material Change will automatically take effect at the start of your Renewal Term without further notice. The most current version of the Terms of Service can always be accessed at the Websites.
5.2 Changes to the Order Form. You can add or remove Services during the Term provided we agree to such changes in writing. We will document any changes to Services in an updated invoice or Order Form which we will send to you for review. If you disagree with the addition or removal of a particular product or service (and associated fees), please notify us immediately. If you pay the updated invoice, accept the benefits of any added Services, or fail to object to the added or removed service within 14 days after the change goes into effect, then you will be considered to have accepted the changes, which will be considered a valid modification of the Order Form then on file.
5.3 Changes Required by Law. We reserve the right to make immediate changes to these Terms of Service, with or without notice to you, where such changes are required by applicable law.
5.4 Other Changes to the Agreement. Except as stated otherwise in this Section, no modification of the Agreement will be binding unless in writing and manually signed by an authorized representative of the Parties.
5.5 Enhancements. Our goal is to continually improve the Platform and Services we provide to you. We may, from time to time, update our SpendHQ Technology (including, without limitation, the Platform or Services) to include enhancements or make updates or upgrades to existing Modules (as applicable) (collectively, “Enhancements”). Whenever possible, we will provide you with advance notice of the release of these Enhancements. Unless otherwise provided in writing, you will not be charged anything more for your use of Enhancements. Notwithstanding the foregoing, we reserve the right to charge for new Modules, or new features or functionalities to the Platform or Services.
5.6 Discontinuation. We reserve the right to discontinue, sunset, decommission or otherwise terminate any Modules, or any component thereof, by providing you with a 90-day written notice.
6. TERM; TERMINATION; SUSPENSION
6.1 Term & Automatic Renewal. The Agreement will become active as of the Effective Date and will remain in effect until terminated in accordance with its terms. The Term (including the Initial Term and any Renewal Terms, as applicable) is described in your Order Form. Unless you provide us with written notice of your intent to terminate the Agreement at least 60 days prior to the expiration of the Initial Term or any Renewal Term, as applicable, the Agreement will continue to automatically renew for successive Renewal Terms until properly terminated as set forth in this Section.
6.2 Termination for Cause. Either Party may terminate the Agreement for cause if the other party: (a) fails to cure any material breach of the Agreement, including a failure to pay Fees, within 30 days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days. In addition to the termination rights described herein, we may terminate the Agreement for cause and without penalty if, after the Effective Date, we discover that providing the Platform or Services, or some part thereof, is prohibited by law or has become impractical or unfeasible due to a legal or regulatory reason.
6.3 Suspension Rights. In addition to any of our other rights and remedies (including, without limitation, any termination rights), we reserve the right to suspend your access to the Platform or use of Services: (a) if you fail to pay Fees; (b) if you are, or if we have reason to believe, you are violating the License Restrictions described in Section 3.4 above; (c) if you are in material breach of the Agreement; (d) if we deem the suspension necessary to protect the availability, integrity, resilience or security of the Platform, Services or our SpendHQ Technology; or (e) as required by law or by judicial authority.
6.4 Effect of Termination. If the Agreement terminates or expires for any reason, you agree: (a) to immediately stop using the Services and accessing the Platform; (b) that the licensed rights provided under the Agreement shall immediately end; (c) that we shall have a right to delete your SpendHQ account and all associated Customer Data in accordance with our record-keeping policies and applicable law; and (d) neither we or any of our Affiliates shall be liable to you or any third party for any of the foregoing actions. Any termination of the Agreement does not relieve you of any obligation to pay any outstanding Fees or other amounts owed under the Agreement.
6.5 Survival. The terms of this Section 6 and the terms of the following Sections will survive the expiration or termination of the Agreement: Section 7 (Intellectual Property); Section 8 (Confidentiality); Section 9 (Representations, Warranties & Disclaimers); Section 10 (Special Damages Waiver); Section 12 (Mutual Indemnification); Section 13 (Limitations of Liability); Section 14 (Dispute Resolution); Section 15 (Non-Solicitation); Section 22 (Governing Law & Venue); Section 24 (Entire Agreement); Section 25 (Other Provisions).
7. INTELLECTUAL PROPERTY
- By Customer. You own (or, where applicable, must ensure that you have a valid license to) your Customer Data subject to our underlying Intellectual Property Rights in the SpendHQ Technology.
- By SpendHQ. All rights in and to the Platform, Services and SpendHQ Technology, including any modifications made thereto, derivatives thereof, and Intellectual Property Rights therein, shall exclusively belong to and at all times will remain our sole and exclusive property. You will not permit any third party to take any action with respect to Platform access or use of Services that is not expressly authorized under this Agreement.
7.2 Permitted Use. You grant us and our Affiliates a non-exclusive, worldwide, royalty-free license to use, copy, transmit, sub-license, index, store, and display your Customer Data to the extent necessary to perform our obligations (including, but not limited to, developing, modifying, improving, supporting, customizing, and operating the Platform and providing our Services) or enforce our rights under this Agreement; or where required or authorized by law. We may use, copy, transmit, index and model Customer Data for the purpose of developing, improving or customizing the Platform or our Services; and publishing, displaying and distributing any anonymous information derived from Customer Data.
7.3 Feedback. You may, but are not required to, provide us with feedback and suggestions about the Platform or Services (collectively, “Feedback”). If you provide Feedback, then we and our Affiliates may use that Feedback without restriction and financial obligation to you. You agree that your submission of Feedback will be gratuitous, non-confidential, unrestricted and made without any right to receive compensation in return.
8. CONFIDENTIALITY. The receiving party will treat Confidential Information with reasonable care and disclose only on a need-to-know basis or as permitted under this Agreement. The receiving party will only use Confidential Information for the purposes of performing its obligations or as permitted under this Agreement. However, a receiving party may disclose Confidential Information: (a) if approved by the other party in writing; (b) if required by law or regulation; (c) in the event of dispute between the parties, as necessary to establish the rights of either party; or (d) by us as necessary to provide the Services. In the case of Section 8(b) and (c), the disclosing party will provide reasonable advance notice to the other party and provide reasonable assistance to limit the scope of the disclosure unless prohibited by law or regulation. The receiving party is responsible for ensuring that its representatives and Affiliates fully comply with the obligations of the receiving party under this section.
9. REPRESENTATIONS, WARRANTIES & DISCLAIMERS
9.1 General. Each party represents and warrants that: (a) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (b) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (c) the Agreement is legally binding upon it and enforceable according to its terms; and (d) the execution, delivery and performance of the Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
9.2 Customer Representations & Warranties. You represent and warrant that: (a) you are solely responsible for your own Customer Data, including without limitation, the accuracy, security, appropriateness and completeness of your Customer Data; (b) you agree not to collect, process or store Sensitive Personal Data in connection with the Platform or your receipt of Services; (c) none of your Authorized Users will be a competitor of SpendHQ, where “competitor” means a resource or third party that provides any procurement-related product or consulting services that is substantially similar to the Services received under the Agreement; (d) you have the necessary rights and licenses, consents, permissions, waivers and releases to use and display your Customer Data; (e) your Customer Data (i) does not violate, misappropriate or infringe any of our rights or the rights of third parties, (ii) does not constitute defamation, invasion of privacy or publicity, or otherwise violates the rights of a third party, and (iii) is not designed for use in any illegal activity or to promote illegal activities, including, without limitation, use in a manner that might be libelous or defamatory or otherwise malicious, illegal, harmful to any person or entity or discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age; or (f) your Customer Data, to the best of your knowledge, does not contain any unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
9.3 SpendHQ Limited Warranty. We represent and warrant that: (a) the Platform and Services, as delivered, will substantially conform to the Documentation during the Term; (b) we own the appropriate rights to license or sublicense the Platform and Services; and (c) to the best of our knowledge, the Platform and Services will be provided free of viruses, malware, spyware, ransomware or other harmful code. You must notify us of a claim under this limited warranty within 45 days of the date on which the condition giving rise to the claim first appeared. To the extent permitted by law, your sole and exclusive remedy, and our sole liability under or in connection with this warranty, will be the replacement of the Platform or Services affected, or, if there has been a service level failure under an applicable Service Level Agreement, then your sole and exclusive remedy will be as set forth in the Service Level Agreement.
9.4 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.3 ABOVE, THE PLATFORM AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. WE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT YOUR ACCESS TO THE PLATFORM OR USE OF SERVICES WILL BE UNINTERRUPTED OR BUG, VIRUS OR ERROR-FREE. WE ALSO DO NOT WARRANT THAT WE WILL INDEPENDENTLY REVIEW YOUR CUSTOMER DATA FOR ACCURACY OR LEGALITY. WE AND OUR AFFILIATES EXPRESSLY DISCLAIM ALL LIABILITY FOR THIRD-PARTY SERVICES AND HARDWARE OR HARDWARE CONFIGURATION ISSUES.
If you are a California resident, you waive California Civil Code § 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
We will not be liable for any Special Damages regardless of the form of action and even if advised of the possibility of Special Damages. You waive the right to recover Special Damages from us, our Affiliates or any SpendHQ Partner. “Special Damages” means indirect, special, incidental, speculative, remote, exemplary, punitive or consequential damages, lost profits, loss of business or goodwill, tax or late payment penalties and damages, including any related to system or equipment issues, access to any online services, service providers and problems or delays using the Services.
11. TIMELY FILING OF CLAIMS
You must file a Claim in connection with the Agreement with a tribunal or court of competent jurisdiction within two (2) years of the event giving rise of the Claim. Failure to do so will mean you waive the Claim against us.
12. MUTUAL INDEMNIFICATION
12.1 Indemnification by Customer. You agree to unconditionally release, indemnify, defend and hold harmless us, our Team and our Affiliates, and each of their directors, officers, agents and employees, from and against all losses and liabilities (including, without limitation, attorneys’ fees and court costs) arising from or related to: (a) your violation of any applicable law or regulation; (b) your breach of the Agreement, including, without limitation your misuse of the Platform or Services in violation of the License Restrictions described in Section 3.4; (c) your Customer Data; (d) your fault in any incident resulting in the loss or unauthorized access to data belonging to another SpendHQ customer; or (e) any other indemnifiable event described elsewhere in the Agreement.
12.2 Indemnification by SpendHQ. We agree to release, indemnify, defend and hold you and your officers, directors, agents and employees harmless from and against all losses and liabilities (including, without limitation, attorneys’ fees and court costs) arising from or related to our infringement or alleged infringement of U.S. intellectual property rights of a third party due to your access to the Platform or use of the Services, but excluding infringement or alleged infringement that results from: (a) your access to the Platform or use of Services in a manner not permitted by the Agreement; (b) any modification to the Platform or Services made by you; (c) use of the Services in combination with any other service, platform, process or materials with which the Platform or Services is not intended to be combined; (d) your continued use of the infringing or allegedly infringing Platform or Service (or any part or component alleged to be infringing thereof) after you have been provided with modifications or other remedies to avoid the alleged infringement; or (e) Customer Data.
12.3 Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (a) prompt written notice of any claim for which indemnification may be sought under this Agreement; (b) control over the defense and settlement of any such claim with counsel of the Indemnifying Party’s choice; and (c) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such claim. Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a claim. Indemnifying Party is not permitted to enter into any settlement with respect to a claim other than one for purely money paid by Indemnifying Party with a full release of liability with respect to Indemnified Party without Indemnified Party’s prior written consent, which will not be unreasonably withheld.
EXCEPT FOR LIABILITY WHICH, BY LAW, CANNOT BE LIMITED (“EXCLUDED CLAIMS”), TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, OUR TOTAL AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THE AGREEMENT, THE PLATFORM OR ANY OF OUR SERVICES (INCLUDING, WITHOUT LIMITATION, PROFESSIONAL SERVICES) SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU OVER A PERIOD OF SIX (6) MONTH CALCULATED FROM THE TIME IMMEDIATELY PRECEDING THE occurrence GIVING RISE TO SUCH LIABILITY. MULTIPLE CLAIMS WILL NOT INCREASE THE MAXIMUM AGGREGATE LIMIT DESCRIBED HEREIN. YOU ACKNOWLEDGE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THE AGREEMENT AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES CHARGED, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY GREATER LIABILITY OTHER THAN AS SET FORTH HEREIN. YOU AGREE THAT THE LIABILITY LIMITS SET FORTH HEREIN ARE A MATERIAL BASIS OF THE BARGAIN AND ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
14. DISPUTE RESOLUTION
If a dispute of any kind arises under the Agreement, we want to understand and address your concerns quickly and to your satisfaction. If you have a question or concerns about the Platform or the Services, please direct this inquiry to email@example.com. If the concern is legal in nature, please direct this communication to firstname.lastname@example.org. If we cannot resolve your concerns directly, then you agree to engage with us in a non-binding mediation process using a third-party neutral to assist in brokering a mutually agreeable solution. As the Parties agree, mediation may take place in-person or be conducted remotely through videoconference. Each Party will bear their own costs associated with mediation and will split the mediator’s cost evenly.
During the Term, and for a period of one (1) year after expiration or termination of the Agreement, you will not (on you own behalf or on behalf of any other person or entity) solicit, induce or encourage any SpendHQ employee to leave their employment; however, the restrictions set forth in this Section will apply only to current SpendHQ employees with whom you had contact during the Term of this Agreement. Notwithstanding the foregoing, this Section does not restrict your right to solicit or recruit generally in the media and does not prohibit you from hiring a SpendHQ employee who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by you.
16.1 Notices to Customer. All legal notices provided by us to you under the Agreement will be delivered: (a) in writing by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address listed in your Order Form; or (ii) by email to the email address for the primary contact provided in your SpendHQ account.
16.2 Notices to SpendHQ. All legal notices provided by you to us under the Agreement must be delivered: (a) in writing by Courier or U.S. mail to SpendHQ, LLC, Attn: Legal, 5555 Triangle Pkwy., Ste. 250, Peachtree Corners, GA 30092; or (b) by email to email@example.com. All other notices provided by you to us under the Agreement must be delivered to firstname.lastname@example.org.
16.3 Delivery of Notices. All notices shall be deemed to have been given immediately upon delivery by email, or, otherwise if delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
17. EXPORT CONTROLS
The software supporting the Platform or Services may be subject to U.S. Export Control Laws and Regulations and other applicable export laws and regulations (“Export Control Laws”). Export Control Laws have been set up by the U.S. government to keep certain goods and services from reaching other countries, usually because of security concerns or trade agreements. None of our software may be downloaded or otherwise exported (or re-exported) in violation of Export Control Laws. You agree that you will not, directly or indirectly, allow the Services or the software supporting the Platform to be accessed or generated from within, or distributed or sent to, any prohibited or embargoed country as mentioned in any Export Control Laws. In addition, you certify that neither you nor any of your principals, officers, directors or any person or entity you know to be directly involved with your use of the Platform or Services designated on any U.S. government list of prohibited or restricted persons.
By accepting the Agreement, you grant us the right to identify you as a customer of SpendHQ and to use your name and/or logo in connection with our marketing activities and/or press releases; provided, however, that we shall not publicly release any detailed information concerning any specifics, including but not limited to cost, scope, or volume of your spend without your express written consent. You may withdraw your consent at any time by providing us with written notice.
19. E-SIGN DISCLOSURE & CONSENT
By accepting the Agreement, you agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, “Communications”) that we or the Platform provide in connection with your use of the Services. We or the Platform will provide these Communications to you by email at the contact listed in your SpendHQ account. We may also provide certain Communications to you by U.S. mail to the physical address listed on your Order Form. You agree that your electronic signature has the same effect as your manual, physical signature. You may withdraw your consent to receive Communications electronically by contacting email@example.com, or in writing to 5555 Triangle Pkwy., Ste. 250, Peachtree Corners, GA 30092. If you withdraw your consent to receive Communications electronically, we may restrict or close your SpendHQ account or charge you additional fees for paper copies.
This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. Neither Party may assign this Agreement without the advance written consent of the other, except that we may assign this Agreement in its entirety in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of our assets or voting securities to a successor. We may also assign this Agreement in its entirety to an Affiliate. Each Party shall promptly provide notice of any such assignment. Any attempt to transfer or assign this Agreement except as expressly authorized under this section will be null and void.
21. FORCE MAJEURE
We shall not be in default under any provision of the Agreement or be liable for any delay, failure of performance or interruption in the Platform or Services resulting from any cause beyond our reasonable control, including, but not limited to: earthquake, lightning or other acts of God; fire or explosion; electrical faults; vandalism; cable cut; water; hurricanes; fire; flooding; severe weather conditions; actions of governmental or military authorities; national emergency; volcanic eruptions; insurrection; riots or war; terrorism or civil disturbance; global pandemics; strikes; lock-outs; work stoppages or other labor difficulties; supplier failure; shortage; or telecommunication or other internet provider failure (each, a “Force Majeure Event”).
22. GOVERNING LAW & VENUE
The Agreement shall be governed by the laws of the jurisdiction as set forth in the Order Form (“Governing Law”), without reference to conflict of laws principles. Any disputes under the Agreement shall be resolved in a court of general jurisdiction in the venue as set forth in the Order Form (“Venue”). You hereby expressly agree to submit to the exclusive personal jurisdiction of the Venue for the purpose of resolving any dispute relating to this Agreement, your access to the Platform or your use of Services.
23. PARTY RELATIONSHIP
The parties will be considered independent contractors in the performance of each and every part of the Agreement. Nothing in the Agreement is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for their respective employees and agents and respective labor costs and expenses arising in connection with those employees and agents.
24. ENTIRE AGREEMENT
The Parties acknowledge that this Agreement was initially prepared by SpendHQ. Both Parties, however, have had an opportunity for legal review of all terms. The Parties therefore agree that, in interpreting any issues which may arise, any rules of construction related to which party prepared the Agreement will be inapplicable, each Party having contributed or having had the opportunity to clarify any issues. These Terms of Service, together with the Order Form, the Privacy Statement, and any applicable Addenda, as may be amended, make up the entire Agreement between you and us in relation to its subject matter and supersedes all prior agreements, representations and understandings between the Parties. Any direct conflict in terms will be resolved in favor of the later-signed Addenda.
25. OTHER PROVISIONS
If any provision of the Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. Section headings are inserted for convenience only and shall not affect the construction of the Agreement. Wherever the context requires, the singular shall include the plural, the masculine gender shall include the feminine and neuter gender, and “and” shall include “or.” No failure or delay by either Party in exercising any right under the Agreement including, without limitation, these Terms of Service, will constitute a waiver of that right.