4Spires – Customer Agreement

IMPORTANT. PLEASE READ THIS SUBSCRIPTION AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE 4Spires SOFTWARE. BY ACCESSING THE 4Spires SOFTWARE VIA THE ONLINE SERVICE AND/OR EXECUTING A SALES ORDER FORM INCORPORATING THIS AGREEMENT, YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREEING TO BE BOUND BY ITS TERMS.

1. License Grant, Restrictions, and Ownership

1.1. General

Subject to the terms and conditions of this Agreement, 4Spires, or its designee, shall host the 4Spires Software (the “Service”) for the purpose of providing you, the customer with access through the Internet.

4Spires hereby grants you a non-exclusive, non-transferable right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by 4Spires and its licensors.

1.2. Restrictions

You are not permitted to, directly or indirectly, (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or the related documentation; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual registered User.

You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material which violates any third party privacy rights; (iii) send or store material containing software viruses, worms, or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

1.3. Hours of Availability

4Spires shall use commercially reasonable efforts to make the Service available twenty-four (24) hours per day. Notwithstanding the foregoing, 4Spires reserves the right to suspend Customer’s access to the Service (i) in the event that Customer materially fails to fulfill its obligations under this Agreement, (ii) for purposes of scheduled maintenance, or (iii) for purposes of emergency maintenance work at any time as deemed appropriate by 4Spires.

1.4. Ownership

You retain all right, title and interest to any and all information provided, input or uploaded to the Service by you. 4Spires (and its licensors, where applicable) shall retain all right, title and interest in and to the Service and any associated documentation, and all modifications and/or enhancements to the Service, regardless of the source of inspiration for any such enhancement or modification and regardless of whether you have provided input regarding such modifications and/or enhancements. You acknowledge that 4Spires will retain all right, title and interest to transactional and performance statistics related to use of the Service which 4Spires may collect, use and disclose for its business purposes (including software use optimization and product marketing) provided that such use does not reveal your identity, any of your Confidential Information or any personally identifiable information that belongs to you. Any custom developed documents, designs, computer programs, computer documentation and other tangible materials authored or prepared for you by 4Spires (“Deliverables”) as required by a statement of work are hereby licensed, solely for your internal use, for the term of this Agreement. 4Spires retains ownership of and may reuse any Deliverables, provided that such use does not reveal your identity or your Confidential Information.

1.5. Support

4Spires operates a help desk between the hours of 8:00AM and 6:00PM, PST, Monday through Friday, exclusive of holidays (which are: New Year’s Day, Easter, Memorial Day, July 4th, Labor Day, Thanksgiving, and Christmas Day). The help desk will accept inquiries by electronic mail. 4Spires will use its best efforts to respond to inquiries within 24 hours after receipt. Support Services include (i) unlimited email support during Support Hours, and (ii) access to all production enhancements made to the Service during the term of this Agreement.

1.6. Security

4Spires will use industry standard security procedures to secure the transmission of all information to and from the Service. Such security precautions will include, at a minimum, user identification and access controls designed to limit access to information to authorized users.

1.7. Consulting Services

You may elect to purchase consulting services associated with the implementation and optimization of the Service (“Consulting Services”). Such Consulting Services shall be set forth in a mutually executed statement of work that references and incorporates the terms of this Agreement. Fees for Consulting Services will accrue on a time and materials basis and shall be paid in US dollars, unless otherwise agreed. All fees for Consulting Services shall be invoiced monthly in arrears and paid net 30 days from receipt of invoice.

2. Payment

2.1. Fees and Taxes

During the term of this Agreement, you agree to pay 4Spires the fees associated with use of the Service in accordance with the fees, charges, and billing terms in effect at the time. The initial charges will be equal to the current number of total User licenses requested multiplied by the User license fee currently in effect. Except as may otherwise be provided, fees are non-refundable. All payments, fees and other charges payable by Customer to 4Spires under this Agreement are exclusive of all applicable federal, state, local and foreign taxes, levies and assessments.

An authorized License Administrator may add licenses by executing an additional written Order Form. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month.

4Spires reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you. In the event that your account is delinquent, we reserve the right to suspend your access to the Service, with no liability to us, until such amounts are paid in full. You agree that 4Spires may impose a charge to restore archived data from delinquent accounts. Unpaid charges (except those charges under reasonable and good faith dispute) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.

2.2. Billing and Renewal

4Spires charges and collects in advance for use of the Service. We will automatically renew and issue an invoice to you or bill your credit card each year on the subsequent anniversary or as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of total User licenses multiplied by the then-current license fee in effect during the prior term, unless 4Spires has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal. You agree to provide 4Spires with complete and accurate billing and contact information. For corporate accounts, this information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any changes. If the contact information you have provided is false or fraudulent, we reserve the right to terminate your access to the Service.

3. Confidentiality

3.1. Confidential Information

Confidential Information shall mean confidential or other proprietary information that is disclosed by one party to the other party under this Agreement including, without limitation, business and product plans, customer information, marketing materials, employee names and other confidential business information. Confidential Information shall not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the party receiving the Confidential Information hereunder; (ii) is independently developed by the receiving party without use of the other party’s Confidential Information; or (iii) is already known on an unrestricted basis to the receiving party at the time of disclosure under this Agreement.

3.2. Protection of Confidential Information

Each party agrees not to transfer or otherwise disclose the Confidential Information of the other party to any third party. Each party shall (i) give access to such Confidential Information solely to those employees or agents with a need to have access thereto for purposes of this Agreement, and (ii) take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own confidential information, but, in no event, shall a party apply less than a reasonable standard of care to prevent such disclosure or unauthorized use. Nothing in this Agreement shall prevent either party from disclosing the Confidential Information of the other party pursuant to any judicial or governmental order, provided that the party gives the other party reasonable prior notice of such disclosure (to the extent it is permitted to do so under such order) to contest such order.

4. Term and Termination

4.1. Term

This Agreement commences on the Effective Date. The Initial Term will be as you elect during the subscription process or as otherwise mutually agreed upon in an Order Form, commencing on the date you agree to pay for the Service by completing the subscription form, or on the start date of the Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year). Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the event this Agreement is terminated (other than by reason of your breach), 4Spires will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that 4Spires has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.

5. Limited Warranty

5.1. Limited Warranty

4Spires warrants that the Service when operated on a Supported System will be free from Material Defects (defined below) during the Term. 4Spires’ sole responsibility under this warranty shall be, at 4Spires’ option, to either repair or replace the Material Defect in the Service, or to return to Customer a pro-rata refund of fees paid hereunder, limited to the time period during which the Material Defect impaired Customer’s use of the Service. 4Spires represents and warrants that: (1) the Service will perform in accordance with its documentation and specifications in existence as of the date hereto; (2) all of the services to be performed will be rendered using sound, professional practices and in a competent and professional manner consistent with the standards of service in its industry using appropriately trained and qualified personnel. 4Spires shall have no liability resulting from (a) the combination, operation or use of the Service with equipment, devices or software not supplied or approved by 4Spires; or (b) the alteration or modification of the Service that was not made or authorized (in advance, and in writing) by 4Spires. A "Material Defect" shall mean any reported malfunction, error or other defect in the Service that: (i) can be reproduced by 4Spires; and (ii) constitutes a material nonconformity with the specifications for the Service or prevents or severely impairs Customer’s use of the Service for its intended purposes.

5.2. Warranty Disclaimer

BOTH PARTIES HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE.

6. Limitation of Liability

6.1 Statement of Limitation of Liability

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICE OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO 4Spires HEREUNDER DURING THE PRECEDING SIX MONTHS. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

7. General Provisions

7.1. Relationship of the Parties

The relationship established between the parties by this Agreement is that of independent contractors.

7.2. Complete Understanding; Modification

This Agreement constitutes the complete and exclusive agreement of the parties and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by both parties.

7.3. Severability

If any provision of this Agreement is held to be invalid or unenforceable under the circumstances, such provision’s application in any other circumstances and the remaining provisions of this Agreement shall not be affected thereby.

7.4. Nonassignability and Binding Effect

Neither party shall assign this Agreement to any third party without the prior written consent of the other party which will not be unreasonably withheld, except that either party may assign this Agreement to any successor to all or substantially all of its stock or assets.

7.5. Notices

All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand or by facsimile transmission, or upon receipt when mailed by registered or certified mail (return receipt requested), postage prepaid, to the parties at the addresses first listed above (or at such other address for a party as shall be specified by like notice).

7.6. Force Majeure

Neither party shall be liable for any loss resulting from a cause over which it does not have reasonable control including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect or Internet problems, severe weather, earthquakes, or natural disasters, wars, or governmental restrictions. To the extent any such event continues for a period of more than thirty (30) days, Customer may terminate this Agreement without liability of any kind.

7.7. Waiver

No failure or delay on the part of any party in exercising any right hereunder, irrespective of the length of time for which such failure or delay shall continue, will operate as a waiver of, or impair, any such right. No single or partial exercise of any right hereunder shall preclude any other or further exercise thereof or the exercise of any other right. No waiver of any right hereunder will be effective unless given in a signed writing.

7.8. Governing Law

This Agreement is governed by the substantive laws of the State of California. The federal and state courts sitting in San Mateo County, California shall have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.