Self-Serve Subscription Agreement
Effective March 15, 2022
PLEASE READ THE FOLLOWING CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS. THIS SELF-SERVE SUBSCRIPTION AGREEMENT (“SUBSCRIPTION AGREEMENT”), SUPPLEMENTAL TERMS, DOMAIN REGISTRATION AGREEMENT, ANY PLAN OR FEATURE LIMITS, PRODUCT DISCLAIMERS, OR OTHER RESTRICTIONS PRESENTED TO YOU ON THE SPEIR DIGITAL INC. WEBSITE OR DOCUMENTATION, AND ALL OTHER APPLICABLE TERMS (COLLECTIVELY, THE “AGREEMENT”) GOVERN YOUR USE OF OUR SERVICES (AS DEFINED BELOW), INCLUDING BUT NOT LIMITED TO, ANY FREE, TRIAL, OR PAID SPEIR DIGITAL INC. SERVICES OR SOFTWARE WHERE THE SUBSCRIPTION AGREEMENT APPEARS OR IS LINKED TO. THE SUPPLEMENTAL TERMS AND DOMAIN REGISTRATION AGREEMENT (EACH WHERE APPLICABLE), WHICH MAY BE UPDATED BY US FROM TIME TO TIME, ARE HEREBY INCORPORATED BY REFERENCE INTO THE SUBSCRIPTION AGREEMENT.
THIS AGREEMENT CONTAINS PROVISIONS REQUIRING THAT YOU AGREE TO THE USE OF ARBITRATION TO RESOLVE ANY DISPUTES ARISING UNDER THIS AGREEMENT RATHER THAN A JURY TRIAL OR ANY OTHER COURT PROCEEDINGS, AND TO WAIVE YOUR PARTICIPATION IN CLASS ACTION OF ANY KIND AGAINST SPEIR DIGITAL INC.
By clicking on the “Create Account” button (or any similar button) that is presented to you at the time of sign-up, by using or accessing the Services (as defined below), or by otherwise indicating your acceptance of this Agreement, you agree to be bound by this Agreement. Speir Digital Inc. may modify this Agreement from time to time, subject to the terms in Section 14 (Changes to this Agreement) below.
If you are entering into this Agreement on behalf of a company, organization, or another legal entity (an “Entity”), you are agreeing to this Agreement for that Entity and representing to Speir Digital Inc. that you have the authority to bind such Entity to this Agreement, in which case the terms “you,” “your,” “Customer”, or a related capitalized term herein will refer to such Entity. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and must not use the Services (as defined below).
This Agreement governs the use of Speir Digital Inc.’s cloud-based solutions that are provided as part of a subscription or require a Speir Digital Inc. account, along with any software made available by Speir Digital Inc. in connection with such services, including software development kits and Speir Digital Inc.’s application programming interfaces (“APIs”) made available in connection with such cloud-based solutions (collectively, the “Services”).
2.1 Access to Services
Subject to your compliance with this Agreement (including, without limitation, all payment obligations), Speir Digital Inc. hereby grants to you a limited, revocable, non-exclusive, non-transferable, and non-sublicensable (except to Affiliates) right, to access and use the Services. If you are agreeing to this Agreement on behalf of an Entity, such Entity’s Affiliates may also access and use the Services provided that such Affiliates agree to be bound by the terms of this Agreement, and the Entity remain fully liable for such Affiliates’ actions and omissions in connection with this Agreement as if the Entity had performed such acts and omissions itself. “Affiliate” means any means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
Unless otherwise expressly permitted in writing by Speir Digital Inc., you will not, and you have no right to:
(a) rent, lease, loan, export, or sell access to the Services to any third party, or sign up for the Services on behalf of a third party;
(b) interfere with, disrupt, alter, or modify the Services or any part thereof, or create an undue burden on the Services or the networks or services connected to the Services, including, but not limited to, causing (whether directly or indirectly) traffic for your Speir Digital Inc.-proxied domain to be sent to an IP address that was not assigned by Speir Digital Inc. for the domain;
(c) utilize any framing techniques to enclose any Speir Digital Inc. trademark, logo, service mark, or other trade dress (“Speir Digital Inc. Marks”) or Materials (defined below) or use any meta tags or other “hidden text” utilizing the Speir Digital Inc. Marks or Materials without Speir Digital Inc.’s written consent
(d) introduce software or automated agents or scripts into the Services so as to produce multiple accounts, generate automated searches, requests or queries, or to strip or mine data from the Services;
(e) cover or obscure any page or part of the Services via HTML/CSS, scripting, or any other means;
(f) reverse engineer the Services;
(g) process or collect personal or business credit card information on any web property that is receiving Free Services (as defined below); or
(h) use the Services to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103 without Speir Digital Inc.’s written consent.
You are permitted to perform benchmark tests of our Services. If you disclose results of any benchmark tests of our Services performed by you or a third party under your direction, you (i) will include in any disclosure or otherwise make available all information necessary to replicate such benchmark tests, and (ii) agree that we may perform and disclose the results of benchmark tests of your services, irrespective of any restrictions on benchmarks in the terms governing your services.
You are responsible for maintaining the confidentiality of all usernames, passwords, and other access credentials (such as API tokens and OAuth credentials) created by or assigned to you (“Credentials”) and are solely responsible for all activities that occur with such Credentials.
If you permit third parties to access your Speir Digital Inc. account (e.g., by providing your API token or using OAuth), you do so at your sole risk and Speir Digital Inc. will not be directly or indirectly responsible or liable to you in any manner, for any harms, damages, loss, lost profits, special or consequential damages, or claims, arising out of or in connection with such permission. You acknowledge that by permitting a third party to access your Speir Digital Inc. account, the third party may obtain, modify, or delete your account data and settings.
You agree to notify Speir Digital Inc. promptly of any actual or suspected unauthorized use of any Credentials. Speir Digital Inc. reserves the right to terminate any Credentials that Speir Digital Inc. reasonably determines may have been accessed or used by an unauthorized third party and will provide immediate notice of such to you. For your added security, we strongly encourage you to enable two-factor authentication in conjunction with your Credentials.
2.4 Subscription Terms, Renewals, and Cancellations
All Services that are provided to you as Paid Services (each a, “Paid Service”) will be provided to you on a subscription basis for the length of term that you specified during the initial sign-up process (“Subscription Term”). All of your subscriptions to Paid Services will automatically renew for periods equal to your initial Subscription Term, and you will be charged at our then-current rates unless you cancel your subscription through the Services’ account dashboard prior to your next scheduled billing date.
2.5 Customer Content and Network Data
You must obtain all necessary rights, releases and permissions to provide Customer Content to Speir Digital Inc., and Customer Content and its transfer must not violate any applicable local, state, federal and international laws and regulations (“Laws”) (including without limitation those relating to export control or electronic communications). Other than our security obligations under Section 6.2 (Security), we assume no responsibility or liability for Customer Content, and you will be solely responsible for the consequences of using, disclosing, storing, transferring or transmitting Customer Content.
Speir Digital Inc. may modify certain components of Customer Content on or transmitted to or from your website to enhance your website’s performance or security or the functionality of the Services. For example, depending on the Services you select or the Apps that you enable, Speir Digital Inc. may: (i) intercept requests determined to be threats and take actions, such as, presenting them with a challenge page, dropping the request, presenting alternative content, redirecting and other similar measures; (ii) add cookies to your domain to track visitors, such as those who have successfully passed the CAPTCHA on a challenge page; (iii) add scripts to your pages to perform additional performance tracking; (iv) add firewall rules to your website; and (v) make other changes to increase the performance, security or analytic capabilities of your website. Speir Digital Inc. will make it clear whenever a feature will materially modify Customer Content and, whenever possible, provide you a mechanism to allow you to disable the feature.
By transmitting Customer Content to or through the Services, you represent and warrant that Customer Content does not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.
Speir Digital Inc. retains all right, title, and interest in all models, observations, reports, analyses, statistics, databases, and other information created, compiled, analyzed, generated or derived by Speir Digital Inc. from server, network or traffic data generated by Speir Digital Inc. in the course of providing the Service (“Network Data”), and shall have the right to use Network Data for purposes of providing, maintaining, developing, and improving its Services. Speir Digital Inc. may monitor and inspect the traffic on the Speir Digital Inc. network, including any related logs, as necessary to perform the Services. To the extent the Network Data includes any Personal Data (as defined below), Speir Digital Inc. will handle such Personal Data in compliance with applicable data protection laws.
2.6 Free & Trial Services
We may offer free or trial versions of the Services (“Free Services”) from time to time. With respect to each such Free Service, we will make each such Free Service available to you free of charge until the earlier of (a) the end of the free trial period (if applicable) for which you registered to use the Free Service; (b) the start date of your Subscription Term for the Paid Services version of such Free Service; or (c) termination of the Free Service by Speir Digital Inc. in our sole discretion. We will have no liability for any harm or damage arising out of or in connection with any Free Services.
2.7 Acceptable Use
By using the Services you are agreeing, among other things, that you will not use the Services to (a) falsely imply any sponsorship or association with Speir Digital Inc.; (b) post, transmit, store or link to any files, materials, data, text, audio, video, images or other content that infringe on any person’s intellectual property rights or that are otherwise unlawful; or (c) engage in any activities that are illegal, including disseminating, promoting or facilitating child sexual abuse material or engaging in human trafficking.
2.8 Limitation on Serving Non-HTML Content
The Services are offered primarily as a platform to cache and serve web pages and websites. Unless explicitly included as part of a Paid Service purchased by you, you agree to use the Services solely for the purpose of (i) serving web pages as viewed through a web browser or other functionally equivalent applications, including rendering Hypertext Markup Language (HTML) or other functional equivalents, and (ii) serving web APIs subject to the restrictions set forth in this Section 2.8. Use of the Services for serving video or a disproportionate percentage of pictures, audio files, or other non-HTML content is prohibited, unless purchased separately as part of a Paid Service or expressly allowed under our Supplemental Terms for a specific Service. If we determine you have breached this Section 2.8, we may immediately suspend or restrict your use of the Services, or limit End User access to certain of your resources through the Services.
3. Third-Party Products and Services
You may access or use, at your sole discretion, certain third-party products and services that interoperate with the Services (“Third-Party Products”), including, but not limited to, third-party apps provided on Speir Digital Inc. Apps, third-party service integrations made available through the Speir Digital Inc. dashboard or APIs, and third-party products or services that you authorize to access your Speir Digital Inc. account using OAuth or other Credentials. Speir Digital Inc. does not make any representations, warranties, or guarantees regarding the Third-Party Products and the providers thereof, including, but not limited to, as to their continued availability, security, and integrity. If Speir Digital Inc. makes a Third-Party Product available to you, it is on an “AS IS” and “AS AVAILABLE” basis, and Speir Digital Inc. may cease providing it without entitling you to any refund, credit, or other compensation. Each Third-Party Product is governed by the terms of service, end user license agreement, privacy policies, and/or any other applicable terms and policies of the third-party provider. Your access or use of a Third-Party Product is solely between you and the applicable Third-Party Product provider. Speir Digital Inc. will not be directly or indirectly responsible or liable to you in any manner, for any harms, damages, loss, lost profits, special or consequential damages, or claims, arising out of or in connection with the installation of, use of, or reliance on the performance of any of the Third-Party Products. Further information related to the apps available via Speir Digital Inc. Apps is available on the Speir Digital Inc. Apps page located here.
4.1 Recurring Billing
In order to access those Services for which we require a fee (“Paid Services”) you will be required to provide Speir Digital Inc. with your credit card information (“Payment Method”). By providing a Payment Method you are authorizing us to charge your Payment Method on a monthly, annual, or pay-as-you-go basis, or as otherwise applicable for the fees associated with the Paid Services that you sign up for. Any Payment Method that you provide us must be valid and kept current by you during the Subscription Term. By providing us with a Payment Method, you represent and warrant that you are authorized to use such Payment Method. Speir Digital Inc. will begin billing your Payment Method for the Paid Services on the day that you sign up for such Paid Services, regardless of whether you have fully configured the Paid Services as of that date.
4.2 Price Changes
We reserve the right to change the fees that we charge for the Service, at any time in our sole discretion, provided that we give you at least thirty (30) days’ prior notice of such changes. Unless otherwise specified in such notice to you, any changes to the subscription fees will take effect in the billing period immediately following our notice to you.
4.3 No Refunds
FEES ARE NONREFUNDABLE. YOU WILL BE BILLED IN FULL FOR THE SUBSCRIPTION TERM IN WHICH YOU CANCEL AND NO REFUNDS WILL BE PROVIDED FOR THE UNUSED PORTION OF SUCH SUBSCRIPTION TERM. Following any cancellation, however, you will continue to have access to the Paid Services through the end of your current Subscription Term. We may, in our sole discretion, provide a refund, discount, or credit (“Credits”) to you in a specific instance, however the provision of Credits in a specific instance does not entitle you to Credits in the future for similar instances or obligate us to provide additional Credits.
Unless otherwise stated, our charges do not include any taxes, levies, duties, or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes, except those assessable against Speir Digital Inc. as measured by our net income. Unless you provide us with evidence of an exemption, we will invoice you for such Taxes if we believe we have a legal obligation to do so, and you agree to pay such Taxes if so invoiced.
5. Beta Services
From time to time, we may make non-production Services (“Beta Services”) that are under development available to you at no charge. You may access these Beta Services at your sole discretion. Beta Services are intended for testing purposes only and may be subject to additional terms that will be presented to you at the time of sign-up. Speir Digital Inc. is not obligated to provide you with support for the Beta Services or correct any bugs, defects, or errors in the Beta Services. Unless otherwise stated, any Beta Services testing period will expire upon the earlier of one year from the testing start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue, suspend, or remove Beta Services (including any of Customer Content stored as part of the Beta Services) or your access thereto at any time in our sole discretion and may never make them generally available. You understand that any information you obtain regarding Beta Services is Speir Digital Inc. confidential information, and you agree not to disclose such information until a Beta Service becomes generally available, except as required by law, and to only use such information in connection with your use of the Beta Services. Notwithstanding Section 12, we will have no liability for any harm or damage arising out of or in connection with any Beta Services.
6. Data Processing and Security
6.1 Data Processing
If Customer Content includes the personal data of European data subjects as those terms are defined by EU and UK Data Protection Laws and all data defined as ‘personal information’ under the California Consumer Privacy Act (“CCPA”) (collectively, “Personal Data”), then Speir Digital Inc. is a data processor or sub-processor, as applicable, and Speir Digital Inc. will handle such Personal Data in compliance with Speir Digital Inc.’s Data Processing Addendum (“Data Processing Addendum”), which is hereby incorporated by reference into this Agreement. “EU and UK Data Protection Laws” means all Laws and regulations of the European Union, the European Economic Area, their member states, Switzerland, and the United Kingdom, applicable to the processing of Personal Data including (where applicable), the Swiss Federal Act on Data Protection, the UK Data Protection Act and the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data).
We implement security procedures to help protect Customer Content from security threats. However, you understand that your use of the Service necessarily involves transmission of Customer Content over networks that are not owned, operated, or controlled by us, and we are not responsible for any of Customer Content that is lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Customer Content will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers.
7.1 Compliance with Laws
You will comply with all Laws. You agree that you are responsible for determining whether use of the Service will satisfy your individual compliance obligations. You will not use the Service for any reason if you or any party that owns or controls you (if you are a legal entity), are subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, the United Kingdom, or other applicable government authority. You will not use the Service to export or re-export any information or technology to any country, individual, or entity to which such export or re-export is restricted or prohibited. You further acknowledge that performance of the Agreement may be subject to U.S. and non-U.S. anti-corruption and anti-bribery Laws, rules, and regulations. You therefore covenants that you will make no payments, including charitable donations, of money or anything of value, nor will such be offered, promised or paid, directly or indirectly, to any person or entity (a) to improperly influence the acts of such person or entity, (b) to induce such person or entity to use its influence with a government to obtain or retain business, or (c) to gain an improper advantage in connection with any business venture or contract in which Speir Digital Inc. is a participant.
7.2 Government Restrictions
If you are an agency, department or entity of the United States Government (“Government”), you understands and agrees, that (a) your rights to use, reproduce, release, modify or disclose the Services, or any part thereof, is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies, (b) the Services consists of “commercial computer software” and “commercial computer software documentation,” respectively, as defined in FAR Section 12.212 and DFARS Section 227.7202, or their successor provisions, as applicable and (c) use of the Services by any Government agency, department or other agency of the Government may further restricted as set forth in the Agreement.
8. Termination of Use; Discontinuation and Modification of the Service
You will lose your license to use the Service if you violate any provision of this Agreement. Speir Digital Inc.’s policy is to investigate violations of this Agreement. We reserve the right to suspend or terminate your user account upon receiving any number of DMCA notifications from content owners regarding your website(s), or upon learning through other means that you are a repeat infringer. Additionally, we may at our sole discretion terminate your user account or suspend or terminate your access to the Service at any time, with or without notice for any reason or no reason at all. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time through the Service’s account dashboard.
9. Ownership; Proprietary Rights
The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by Speir Digital Inc. are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of Speir Digital Inc. or our third-party licensors. Except as expressly authorized by Speir Digital Inc. you may not make use of the Materials. Speir Digital Inc. reserves all rights to the Materials not granted expressly in this Agreement.
You hereby grant Speir Digital Inc. a non-exclusive, royalty-free, worldwide, transferable, irrevocable, sublicensable, and perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations, corrections, or other feedback (“Feedback”) you provide to Speir Digital Inc. relating to the Services.
10.1 By Speir Digital Inc.
Speir Digital Inc. will defend you against any third party claim brought against you, to the extent that such claim is based on an allegation that a Paid Service, when used as authorized under this Agreement, infringes a United States or European Union patent or registered copyright (a “Claim“), and we will indemnify you against any damages and costs (including reasonable legal fees) finally awarded by a court of competent jurisdiction attributable to such a Claim or agreed to a settlement by Speir Digital Inc.. If any portion of a Paid Service becomes, or in Speir Digital Inc.’s opinion is likely to become, the subject of an infringement claim, Speir Digital Inc. may, at Speir Digital Inc.’s option: (a) procure the right for you to continue using the Paid Service; (b) replace the Paid Service with non-infringing services which do not materially impair the functionality of the Paid Service; (c) modify the Paid Service so that it becomes non-infringing; or (d) terminate the Paid Service and refund any pre-paid subscription fees covering the remainder of the Subscription Term, and upon such termination, you will immediately cease all use of the Paid Service. Speir Digital Inc. will have no obligation under this Section 10 or otherwise with respect to any infringement claim based upon: (w) any use of a Paid Service not in accordance with this Agreement or the applicable Speir Digital Inc. documentation; any use of a Paid Service in combination with third-party products or services not supplied by Speir Digital Inc.; or (z) any modification of a Paid Service by any person other than Speir Digital Inc. or its authorized agents. THIS SUBSECTION SETS FORTH SPEIR DIGITAL INC.’S SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
10.2 By You
You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless Speir Digital Inc. and its officers, directors, employees, consultants, Affiliates (as defined above), subsidiaries and agents (collectively, the “Speir Digital Inc. Entities“) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with your access to, use of, or alleged use of the Service; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
11. Disclaimers; No Warranties
THE SERVICE ARE MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE SPEIR DIGITAL INC. ENTITIES HAVE NO OBLIGATION TO MONITOR, CONTROL, OR VET USER CONTENT OR DATA. AS SUCH, YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. THE SPEIR DIGITAL INC. ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE SERVICES, ITS SAFETY OR SECURITY, OR THE SERVICES CONTENT. ACCORDINGLY, THE SPEIR DIGITAL INC. ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SERVICE’S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES.
THE SPEIR DIGITAL INC. ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
12. Limitation of Liability
IN NO EVENT WILL THE SPEIR DIGITAL INC. ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE SPEIR DIGITAL INC. ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE SPEIR DIGITAL INC. ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES) OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNTS YOU HAVE PAID TO SPEIR DIGITAL INC. TO ACCESS AND USE THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
13. Governing Law
This Agreement will be governed by the laws of the State of Arizona without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Speir Digital Inc. agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California for the purpose of litigating all such disputes.
14. Changes to this Agreement
Speir Digital Inc. reserves the right to make modifications to this Agreement at any time. If a revision materially alters your rights, we will use reasonable efforts to contact you, including sending a notification to the e-mail address(es) associated with your account. In some instances, such as with Free Services, you may be required to indicate your consent to the revised terms in order to continue accessing the Service. Unless otherwise specified, any modifications to this Agreement will take effect at the start of Subscription Term following the notice. If you do not agree with the revised terms, your sole and exclusive remedy will be not to renew your Subscription.
The authoritative version of this document is available at: www.Speir Digital Inc..com/subscriptionagreement. While translations of this document may be provided in multiple languages for your convenience, the English language version hosted at the link above is binding for all users of the Service.
This Agreement constitutes the entire and exclusive understanding and agreement between you and Speir Digital Inc. regarding your use of and access to the Service. You may not assign or transfer this Agreement or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement at any time without notice. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this Subscription Agreement is for convenience only and will not have any impact on the interpretation of particular provisions. In the event that any part of this Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of this Agreement, any provision that by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 2.5.1 and Sections 9 through 19.
17. Dispute Resolution and Arbitration
In the interest of resolving disputes between you and Speir Digital Inc. in the most expedient and cost-effective manner, you and Speir Digital Inc. agree that any and all disputes arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes but is not limited to all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SPEIR DIGITAL INC. ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding Subsection 17.1, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
Any arbitration between you and Speir Digital Inc. will be governed by the Commercial Arbitration Rules and Mediation Procedures (“AAA Rules“) of the American Arbitration Association (“AAA“), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.
17.4 Notice; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice“). Speir Digital Inc.’s address for Notice is: Speir Digital Inc., Inc., 3848 N 3rd Ave Unit 1033 Phoenix Arizona 85013. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand“). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Speir Digital Inc. may commence an arbitration proceeding.
Any arbitration hearings will take place at a location to be agreed upon in Phoenix, AZ provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Speir Digital Inc. for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
17.6 No Class Actions
YOU AND SPEIR DIGITAL INC. AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Speir Digital Inc. agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
In the event that Speir Digital Inc. makes any future change to this arbitration provision (other than a change to Speir Digital Inc.’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Speir Digital Inc.’s address for Notice, in which case your account with Speir Digital Inc. will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
Notwithstanding Section 16, if Subsection 17.1 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 13 will govern any action arising out of or related to this Agreement.
18. Consent to Electronic Communications
You agree to allow us to identify you as a customer, to use your website’s name in connection with proposals to prospective customers, to hyperlink to your website’s home page, to display your logo on the Speir Digital Inc. website, and to otherwise refer to you in print or electronic form for marketing or reference purposes. If you do not wish for Speir Digital Inc. to use your name or logo in any of the preceding ways, please contact [email protected]
20. Contact Information
The Service is offered by Speir Digital Inc., Inc., located at 3848 N 3rd Ave Unit 1033 Phoenix Arizona 85013. You may contact us by sending correspondence to the foregoing address or by emailing us at [email protected] If you are a California resident, you may have this Agreement mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for this Agreement.