DecisionWise/Spectiv General or Master Terms of Service
Spectiv is a registered d/b/a of DecisionWise and is used to identify DecisionWise’s online software platform.
DecisionWise also performs services for clients on a project-by-project basis. Typically, a separate contract is used for each of these projects. In the event you access any information online from DecisionWise, these Master Terms shall control unless otherwise covered by a specific contract between you and DecisionWise. If you receiving Consulting Services (as defined below) from us and those services are not covered by a separate contract, then you agree that those Consulting Services shall be subject to these Master Terms of Service.
PLEASE READ THESE MASTER TERMS OF SERVICE CAREFULLY!
Spectiv is a registered d/b/a of DecisionWise, LLC, a Utah limited liability company. These Spectiv Master Terms of Service (“Master Terms”) is a contract that governs our customers’ use of the Spectiv services, and sometimes may be referred to as our “General Terms and Conditions” or “General Terms of Service.” It consists of the following parts:
- Master Terms: This document contains the core legal and commercial terms that apply to your subscription, which also includes your Order Form.
- Data Processing Agreement (DPA): This explains how we process your data and includes the EU Standard Contractual Clauses.
- Acceptable Use Policy (AUP): This establishes what you can and can’t do while using our products and services.
Your Order Form (or “Order”) is our approved form created to document your purchase of one of our products or services through our purchasing process. It contains all the details about your purchase, including your subscription term, features and products purchased, and your fees. Your Order Form is subject to and accompanies these Master Terms. Your Order and these Master Terms are sometimes referred to as (“the Agreement”) in this document.
This is a legally binding contract. By using the Subscription Service, or receiving Consulting Services that are not subject to their own contractual terms and conditions under a separate agreement, then you are agreeing to these Master Terms. We update these Master Terms from time to time. If you have an active subscription, we will let you know when we update these Master Terms.
Last modified: August 15, 2022
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“Add-Ons” means additional product enhancements (including limit increases, capacity packs, and other add-ons) that are made available for purchase and are listed in the ‘Add-Ons and Technical Limits’ section of our Products and Services Catalog.
“Affiliate“ means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement“ or “Master Terms of Service” or “Master Terms” means these Spectiv Master Terms of Service and all materials referred or linked to in here, including your Order Form.
“Billing Period“ means the period for which you agree to prepay fees under an Order Form. This may be the same length as the Subscription Term specified in the Order Form, or it may be shorter. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential. Confidential Information includes all information concerning: the Disclosing Party’s customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.
“Contact“ means a single individual (other than a User) whose Contact Information is stored by you in the Subscription Service.
“Contact Information“ means the name, email address, phone number, online username(s), telephone number, and similar information uploaded by you as you use the Subscription Service.
“Consulting Services“ means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
“Customer Data“ means all information that you submit or collect via the Subscription Service. Customer Data does not include Spectiv Content.
“Customer Materials“ means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
“DPA” means the Spectiv Data Processing Agreement at https://spectiv.com/legal.
“Free Services” means the Subscription Service or other products, or features made available by us to you on an unpaid trial or free basis.
“Order“ or “Order Form“ means the Spectiv-approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services.
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
“Product and Services Catalog” means Spectiv’s Product and Services Catalog available at spectiv.com/services, as updated by us from time-to- time.
“Sensitive Information“ means credit or debit card numbers; financial account numbers or wire instructions, government issued identification numbers (such as Social Security numbers, passport numbers), biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under GDPR or any other applicable law relating to privacy and data protection.
“Subscription Fee“ means the amount you pay for the Subscription Service.
“Subscription Service“ means all of our web-based applications, tools and platforms that you have subscribed to under an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via http://Spectiv.com or another designated URL, and any ancillary products and services, including website hosting, that we provide to you.
“Subscription Term“ means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
“Third-Party Products“ means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-Spectiv apps available from, for example, our marketplaces, directories, and links made available through the Subscription Service and non-Spectiv services listed on spectiv.com/services.
“Third-Party Sites“ means third-party websites linked to from within the Subscription Service, including Communications Services.
“Total Committed Subscription Value” means the aggregate amount of Subscription Fees paid or payable to us during your then-current Subscription Term(s) for all of your Spectiv accounts, but this amount excludes fees for renewals, Consulting Services and applicable taxes.
“Users“ means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
“Spectiv“, “we”, “us” or “our” means DecisionWise, LLC, a Utah limited liability company, doing business as “Spectiv”.
“Spectiv Content“ means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services.
“You“, “your“ or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.
2. Use of Services
During the Subscription Term, we will provide your Users access to use the Subscription Service as described in this Agreement and the applicable Order. You must ensure that all access, use and receipt by your Users is subject to and in compliance with this Agreement. We may also provide your Users access to use our Free Services at any time by activating them in your Spectiv account. We might provide some or all elements of the Subscription Service through third party service providers. Your may provide access and use of the Subscription Service to your Affiliate’s Users or allow them to receive the Consulting Services purchased under this Order; provided that, all such access, use and receipt by your Affiliate’s Users is subject to and in compliance with the Agreement and you will at all times remain liable for your Affiliates’ compliance with the Agreement.
2.2 Additional Features
You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your Spectiv account (if this option is made available by us.). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your Spectiv account.
2.3 Service Uptime Commitment
For details of Spectiv’s Service Uptime Commitment, please see your Order.
The limits that apply to you will be specified in your Order Form, this Agreement or in our Product and Services Catalog, and for our Free Subscriptions, these limits may also be designated only from within the product itself. For further information on the limits that apply to your subscription, please refer to your Order. You must be 18 years of age (or 20 years of age, if you are subject to the laws of Japan) or older to use the Subscription Service.
Depending on your Spectiv product, you may be entitled to downgrade your subscription. For further information on the downgrade terms that apply to your subscription, please refer to your Order.
We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. For further information on our modification rights that apply to your subscription, please refer to the your Order.
2.7 Customer Support
For information on the customer support terms that apply to your subscription, please refer to your Order.
2.8 Acceptable Use
You will comply with our Acceptable Use Policy at https://spectiv.com/legal (“AUP”).
2.9 Prohibited and Unauthorized Use
You will not use the Subscription Service in any way that violates the terms of the AUP or for any purpose or in any manner that is unlawful or prohibited by this Agreement. You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (FISMA), so you may not use the Subscription Service where your communications would be subject to such laws. You may not use the Subscription Service in a way that would violate the Gramm-Leach-Bliley Act (GLBA). Nothing contained in this section limits the usage restrictions specific to Sensitive Information under the Agreement. You will notify us promptly of any unauthorized use of your Users’ identifications and passwords or your account by following the instructions available at spectiv.com.
2.10 No Sensitive Information
YOU ACKNOWLEDGE THAT THE SUBSCRIPTION SERVICES HAVE NOT BEEN DESIGNED TO PROCESS OR MANAGE SENSITIVE INFORMATION AND ACCORDINGLY YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE AND WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT, PROCESS OR MANAGE SENSITIVE INFORMATION.
2.11 Free Trial
If you register for a free trial, we will make the applicable Subscription Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid subscription. Unless you purchase a subscription to the applicable Subscription Service before the end of the free trial, all of your data in the Subscription Service may be permanently deleted at the end of the trial, and we will not recover it. If we include additional terms and conditions on the trial registration web page, those will apply as well.
2.12 Legacy Products
If you have a legacy Spectiv product, some of the features and limits that apply to that product may be different than those that appear in these Master Term or your Order. If you have legacy Spectiv products, we may choose to move you to our then-current products at any time. If you determine that you are using a legacy product and would like to upgrade to a current version, you must execute a new Order.
3.1 Subscription Fees
The Subscription Fee will remain fixed during the initial term of your subscription unless: (i) you exceed your Maximum Contacts, Email Send Limit, User or other applicable limits (see the ‘Limits’ section above), (ii) you upgrade products or base packages, (iii) you subscribe to additional features or products, including additional Contacts, or (iv) otherwise agreed to in your Order. We may also choose to decrease your fees upon written notice to you.
3.2 Fee Adjustments at Renewal
Upon renewal, we may increase your fees up to our then- current list price set out in our Product and Services Catalog. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal and the increased fees will apply at the start of the next renewal term. If you do not agree to this increase, either party can choose to terminate your subscription at the end of your then-current term by giving the notice required in the ‘Notice of Non-Renewal’ section below.
3.3 Payment by Credit Card
If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
3.4 Payment against invoice
If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
3.5 Payment Information
You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made in your account settings within your Spectiv account. All payment obligations are non-cancelable, and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.
3.6 Sales Taxes
All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST. If you are located in Canada, all fees are exclusive of GST, PST and HST.
3.7 Withholding Tax
If you are required to deduct or withhold tax from payment of your Spectiv invoice, you may deduct this amount from the applicable Subscription Fee due to the extent it is due and payable as assessed withholding tax required under laws that apply to you (the “Deduction Amount”). You will not be required to repay the Deduction Amount to us, provided that you present us with a valid tax receipt verifying payment of the Deduction Amount to the relevant tax authority within ninety (90) days from the date of the invoice. If you do not provide this tax receipt within the specified time period, then all fees, inclusive of the Deduction Amount, will be immediately due and payable, and failure to pay these fees may result in your account being suspended or terminated for non-payment.
4. Term and Termination
4.1 Term and Renewal
Your initial subscription term will be specified in your Order, and, unless otherwise specified in your Order, your subscription will automatically renew for the shorter of the subscription term, or one year.
4.2 Notice of Non-Renewal
Unless otherwise specified in your Order, to prevent renewal of your subscription, you or we must give written notice of non-renewal. The deadline for sending us your non-renewal notice is thirty (30) day prior to the renewal taking place. If you decide not to renew, you may send us a written request to cancel at firstname.lastname@example.org.
4.3 Early Cancellation
You may choose to cancel your subscription early at your convenience provided that, we will not provide any refunds of prepaid fees or unused Subscription Fees, and you will promptly pay all unpaid fees due through the end of the Subscription Term. See the ‘Notice of Non-Renewal’ section for information on how to cancel your subscription.
4.4 Termination for Cause
Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
4.5.1 Suspension for Prohibited Acts
We may suspend any User’s access to any or all Subscription Services without notice for:
220.127.116.11 use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement
18.104.22.168 use of the Spectiv email send service that results in excessive hard bounces, SPAM complaints via feedback loops, direct spam complaints (to our abuse desk), or requests for removal from a mailing list by recipients, or
22.214.171.124 repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
126.96.36.199 We may, without notice, review and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty (unless applicable laws or regulations provide otherwise) to prescreen, control, monitor or edit your Customer Data or Customer Materials.
4.5.2 Suspension for Non-Payment
We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
4.5.3 Suspension for Present Harm
If your website, or use of, the Subscription Service:
188.8.131.52 is being subjected to denial of service attacks or other disruptive activity,
184.108.40.206 is being used to engage in denial of service attacks or other disruptive activity,
220.127.116.11 is creating a security vulnerability for the Subscription Service or others,
18.104.22.168 is consuming excessive bandwidth, or
22.214.171.124 is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service.
126.96.36.199 We will make commercially reasonable efforts to (a) limit the suspension to the affected portion of the Subscription Service and (b) promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
4.5.4 Suspension and Termination of Free Services
We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
4.6 Effect of Termination or Expiration
If your paid subscription is terminated or expires, we will continue to make available to you our Free Services provided however, this may not be the case if your Agreement was terminated for cause. You will continue to be subject to this Agreement for as long as you have access to a Spectiv account. Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and Spectiv Content. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
5. Customer Data
5.1 Customer’s Proprietary Rights
You own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as otherwise permitted by this Agreement. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
5.2 Limits on Spectiv
We will not use Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Subscription Service and Consulting Services to you and only as permitted by applicable law and this Agreement.
5.3 Data Practices and Machine Learning
5.3.1 Usage Data
We may collect information about you and your Users when you interact with the Subscription Service as permitted by the Agreement. We may aggregate and anonymize this information and share it with third parties provided that we do not include any Customer Data or identify any Users.
5.3.2 Machine Learning
We may, as permitted by the Agreement, use Customer Data in an anonymized manner for machine learning to support certain product features and functionality within the Subscription Service.
5.4 Protection of Customer Data
The terms of the DPA are hereby incorporated by reference and will apply to the extent any Customer Data includes Personal Data. The DPA sets out how we will process Personal Data on your behalf in connection with the Subscription Services provided to you under this Agreement. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data as described in the DPA, including our security measures in Annex 2 of our DPA.
5.5 Regional Data Housing
We will store your Customer Data in a specific location or geographical region (e.g. North America or Europe) as part of your subscription subject to the terms of this Agreement and our Regional Data Hosting Policy.
5.6 Customer Data Transfers
5.7 Retention, Deletion and Retrieval of Customer Data
6. Intellectual Property
This is an agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Spectiv Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks include those marks that have been registered with the United States Patent and Trademark Office or those that have been identified as a trademark using the “™” symbol. you may not use any of these trademarks without our prior written permission.
We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.
The Receiving Party will: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party (except those third party service providers used by us to provide some or all elements of the Subscription Service or Consulting Services), and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; (ii) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and (iii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure.
You grant us the right to add your name and company logo to our customer list and website. You can opt-out of this by sending a request to email@example.com.
You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action“) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us or our Affiliates to the extent that such Action is based upon or arises out of
9.1.1 unauthorized or illegal use of the Subscription Service by you or your Affiliates,
9.1.2 your or your Affiliates’ noncompliance with or breach of this Agreement,
9.1.3 your or your Affiliates’ use of Third-Party Products, or
9.1.4 the unauthorized use of the Subscription Service by any other person using your User information
We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You will not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
10. Disclaimers; Limitation of Liability
10.1 Performance Warranty
We warrant that: (i) the Subscription Service and Consulting Services will be provided in a manner consistent with generally accepted industry standards, and (ii) we will not knowingly introduce any viruses or other forms of malicious code into the Subscription Service; provided however, this warranty will not apply to you if you only use the Free Services. In the event of non-conformance with this warranty, we will use commercially reasonable efforts to correct such non-conformance. If we cannot correct such non-conformance within sixty (60) days from the date when you notified us of the non-conformity (the “Remedy Period”), then either party may terminate this Agreement by providing the other party written notice within thirty (30) days after the end of the Remedy Period. If you terminate the Agreement for this reason, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. We will not have any obligation or liability under this section if the non-conformance is caused by or based on: (i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, or (iii) use of the Subscription Service in violation of or outside the scope of this Agreement. THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.
10.2 Disclaimer of Warranties
EXCEPT AS SET FORTH IN THE ‘PERFORMANCE WARRANTY’ SECTION AND WITHOUT LIMITING OUR OBLIGATIONS IN THE ‘PROTECTION OF CUSTOMER DATA’ SECTION OF THIS AGREEMENT, WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ACCURACY OR COMPLETENESS OF THE SUBSCRIPTION SERVICE, DATA SYNCHED TO OR MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, SPECTIV CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, SPECTIV CONTENT AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
10.3 No Indirect Damages
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY; PROVIDED THAT, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
10.4 Limitation of Liability
EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
10.5 Third Party Products
WE AND OUR AFFILIATES DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
10.6 Agreement to Liability Limit
YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
10.7 Additional Coverage Terms
If your Total Committed Subscription Value exceeds twenty-five thousand U.S. dollars (USD$25,000), then the Spectiv Additional Coverage Terms will apply. If these terms apply to you, then they are incorporated into this Agreement.
11.1 Amendment; No Waiver
We may modify any part or all of the Agreement by posting a revised version at https://spectiv.com/legal. The revised version will become effective and binding the next business day after it is posted. We will provide you notice of this revision by email or in-app notification. If you would like to receive an email notification when we update the Agreement, complete the form found at https://spectiv.com/legal. If you do not agree with a modification to the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, after which the current terms posted at https://spectiv.com/legal will apply. However, if we can no longer reasonably provide the subscription to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Subscription Services will terminate upon our notice to you and we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
11.2 Force Majeure
Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.3 Actions Permitted
Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
11.4 Relationship of the Parties
You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
11.5 Compliance with Laws
We will comply with all U.S. state and federal laws (where applicable) in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury in your use and receipt of the Subscription Service and Consulting Services. You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.
If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
To Spectiv: Notice will be sent to the contact address set forth in the Jurisdiction Specific Terms, and will be deemed delivered as of the date of actual receipt. To you: your address as provided in our Spectiv Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
11.8 Entire Agreement
You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any Spectiv affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
11.10 No Third Party Beneficiaries
Nothing in this Agreement, express or implied, is intended to or will confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
11.11 Contract for Services
This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, will not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not govern this Agreement or the rights and obligations of the parties under this Agreement.
Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. You further warrant and represent that you have the authority to procure your Affiliates compliance with the terms of this Agreement.
During the term of this Agreement, we will, at our own cost and expense, obtain and maintain in full force and effect, with reputable insurers having A.M. best ratings of at least A (VII) or better, liability insurance with coverage and minimum limits of liability as follows: (i) Commercial General Liability Insurance (Primary & Umbrella) or equivalent, with minimum limits of $1,000,000 Each Occurrence and $2,000,000 Aggregate; (ii) Workers’ Compensation & Employers Liability Insurance (as required by the state), with minimum limits of $500,000 Each Accident, $500,000 Disease-Policy Limit and $500,000 Disease-Each Employee; (iii) Professional Liability (cyber/errors and omissions liability insurance), with a limit of $5,000,000; and (iv) Umbrella/Excess Liability Insurance, with a minimum limit of $2,000,000.
11.14 U.S. Government Entities
If you are a U.S. local, state or federal government entity, then the Spectiv Government Customer Additional Terms available at Appendix 2 to these Master Terms will apply to your Agreement. If these terms apply to you, then they are incorporated into the Agreement and shall control in the event of any conflict with the Agreement.
The following sections will survive the expiration or termination of this Agreement: ‘Definitions’, ‘Fees’, ‘Prohibited and Unauthorized Use’, ‘Early Cancellation’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of Termination or Expiration’, ‘Intellectual Property’, ‘Customer’s Proprietary Rights’, ‘Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.
In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order will control, but only as to that Order.
11.17 Retrieval of Customer Data
We will not provide you with any access to data in the Subscription Services after termination or expiration of your subscription. If you want to retain any data after your Subscription Term ends, we recommend you export that data from your Spectiv account in advance.
11.18 Unified Database
By using the Subscription Service, you understand that all data will be stored in a unified database, which is segregated logically, but not physically.
11.19 Subscription Limits
For all Products, we may change the limits that apply to you at any time in our sole discretion by updating the Product and Services Catalog.
11.20 Data Sync
Spectiv allows you to sync data from other third party platforms and applications into the Subscription Service. You are responsible for ensuring the completeness, accuracy and configuration of all data transferred using the Spectiv data sync feature. You are also responsible for ensuring you have all necessary licenses and consents to share the synched data with us.
11.21 Consulting Services and Other Data Matters
You may purchase Consulting Services by placing an Order with us. Unless we otherwise agree, the Consulting Services we provide are described in the Product and Services Catalog and will be delivered in English. Fees for these Consulting Services are in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew in accordance with your subscription.
All Consulting Services are performed remotely, unless you and we otherwise agree. For Consulting Services performed on-site, you will reimburse us our reasonable costs for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice.
If there are a specific number of hours included in the Consulting Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the “Expiration Period”). If there are deliverables included in the Consulting Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Delivery Period”). If there is no Expiration Period or Delivery Period indicated, then it will be one hundred and eighty (180) days from purchase. If the Consulting Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the end of the Delivery Period. If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services.
11.21.4 Third Party Providers
We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
We may offer educational seminars or certifications. The descriptions of these educational seminars and certifications, and the terms and conditions that apply to your participation, are available at http://training.spectiv.com/.
11.21.6 HR Sensitive Information
If the Order provides, we may administer individual psychometric assessments. We will not be liable for damages caused by the actions of employees, contractors, or third parties as a result of any psychological triggering or adverse employment consequences arising from any individual assessment administered as part of the Order. You understand that individual assessments must not be used as the sole source of information from which to make strategic, administrative, personnel, employment, or other decisions, or otherwise be used in a discriminatory fashion in contravention of applicable law.
The Subscription Services may ask individuals to provide open-ended comments, and such individuals may choose to disclose information to Spectiv that should otherwise be reported directly to your human resources or legal functions (“HR Feedback”). In connection with HR Feedback, you acknowledge that: (i) Spectiv is under no obligation to review any of the comments it receives in order to identify HR Feedback for you, and you agree to review all comments to determine if it contains HR Feedback; and (ii) Spectiv shall not be liable for any damages suffered by you as a result of the HR Feedback.
11.22 Survey Responses Confidentiality
You acknowledge and agree that all survey responses collected in connection with the Subscription Services are to be confidential and any personally identifiable information shall be held confidential by us and shall not be given to the you without the express written consent of the individual at question unless such information is needed:
11.22.1 To prevent the commission of a crime
11.22.2 Because the material health or safety of an individual is at stake.
11.22.3 Where required by law.
11.22.4 Where you have agreed in writing (under a separate contract) with us to maintain the same level of confidentiality required of us under these Master Terms.
11.23 Normative Data
Additional Terms for Certain Subscriptions
If your Total Committed Subscription Value exceeds twenty-five thousand U.S. dollars (USD$25,000), then these Additional Terms for Certain Subscriptions (“Additional Terms”) apply. If, at any point during your Subscription Term, your Total Committed Subscription Value is below this amount, then these terms will not apply. We may update or change these terms in the same way as we can update or change our Agreement, as we describe in the ‘Amendment; No Waiver’ section of the Master Terms.
1. Spectiv Indemnification
We will indemnify, defend and hold you harmless, at our expense, against any Action brought against you (and your officers, directors, employees, agents, service providers, licensors, and Affiliates) by a third party not affiliated with you to the extent that such Action is based upon or arises out of (1) an allegation that the Subscription Service infringes a valid patent in a member state of the Patent Cooperation Treaty, registered trademark, or registered copyright (“IP Indemnification”), or (2) our breach of our confidentiality obligations or our use of Customer Data in violation of this Agreement (“Confidentiality and Data Misuse Indemnification”).
You will: notify us in writing within thirty (30) days of you becoming aware of any such claim; give us sole control of the defense or settlement of such a claim; and provide us (at our expense) with any and all information and assistance reasonably requested by us to handle the defense or settlement of the claim. We will not accept any settlement that (i) imposes an obligation on you; (ii) requires you to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on you without your prior written consent.
We will not have any obligation or liability under this section if the alleged claim is caused by or based on: (i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, (iii) use of the Subscription Service in violation of or outside the scope of this Agreement, (iv) an allegation that the Subscription Service consists of a function, system or method traditionally utilized in marketing, sales or services software that is not commercially unique to the Subscription Service, and the commercially unique aspects of the Subscription Service are not identified in the allegation giving rise to the claim, or (v) user interface or related user design elements not provided by us.
Notwithstanding the foregoing, in the event of such a claim, or if we believe that such a claim is likely, we may, at our sole option and expense: (a) modify the Subscription Service or provide you with substitute Subscription Service that is non-infringing; or (b) obtain a license or permission for you to continue to use the Subscription Service, at no additional cost to you; or (c) if neither (a) nor (b) is, in our judgment, commercially practicable, terminate your access to the Subscription Service (or to a portion of the Subscription Service as necessary to resolve the claimed infringement) and refund any prepaid but unused fees covering use of the Subscription Service after termination. THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.
2. Limitation of Liability
The ‘Limitation of Liability’ sub-section in the ‘Disclaimers; Limitations of Liability’ section of the Master Terms is revised to read as follows:
“EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, OUR LIABILITY ARISING FROM OUR IP INDEMNIFICATION OBLIGATIONS UNDER THE ‘SPECTIV INDEMNIFICATION’ SECTION AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM”.
U.S. Government Customer Additional Terms
If you are a U.S. local, state or federal government entity, including public institutions of higher education, that uses the Spectiv products or services (a “Government Customer”), then these Spectiv Government Customer Additional Terms apply. We may update or change these terms in the same way as we can our Agreement as we describe in the ‘Amendment; No Waiver’ section of our Master Terms.
These terms apply to the extent required by applicable law.
1. Government Customer Purpose
Government Customer may only use the Subscription Service and Consulting Services for a governmental-related purpose. These terms will not apply in the event the Subscription Service and/or Consulting Services are used for any private, personal, or non-governmental-related purpose.
Government Customer’s obligations in the ‘Indemnification’ section of the Master Terms will only apply to the extent permitted by applicable law.
3. Limitation of Liability
The ‘Limitation of Liability’ sub-section in the ‘Disclaimers; Limitations of Liability’ section of the Master Terms applies to the extent permitted by applicable law. The following sentence is also added to the end of the ‘Limitation of Liability’ sub-section in the ‘Disclaimers; Limitations of Liability’ section of the Master Terms, or to the amended ‘Limitation of Liability’ section in the Spectiv Additional Coverage Terms in Appendix 1 to the Master Terms, if applicable: “ALSO PROVIDED HOWEVER, THIS LIMITATION WILL NOT APPLY TO EITHER PARTIES’ LIABILITY ARISING FROM ITS NEGLIGENCE THAT RESULTS IN BODILY INJURY, DEATH, OR DAMAGE TO TANGIBLE PROPERTY.”
4. Contracting Entity and Applicable Law
The ‘Contracting Entity and Applicable Law’ section of the Jurisdiction Specific Terms is revised to read as follows:
You are contracting with Spectiv, Inc. and this Agreement is governed by the laws applicable to you as a Government Customer, or if no such laws are specified, then the laws of the State of Utah without reference to conflicts of law principles. Government Customer agrees that we have standing and privity of contract to bring a claim directly against Government Customer in a court or body of competent jurisdiction.
Service Level Commitment
For the purposes of this ‘Service Level Commitment’ section, the following definitions shall apply: “Priority 1” means a critical full outage/severe issue that constitutes a catastrophic problem that causes complete inability to use the Subscription Service, excluding Free Services, across a significant portion of the production environment (e.g. crash or hang), resulting in production downtime and where there is no workaround or solution to the problem. “Excluded” means the following: (i) unavailability caused by circumstances beyond our reasonable control, including, without limitation, act of God, acts of government, emergencies, natural disasters, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), or any other force majeure event or factors; (ii) any problems resulting from Customer’s combining or merging the Subscription Service with any hardware or software not supplied by us or not identified by us in writing as compatible with the Subscription Service; (iii) interruptions or delays in providing the service resulting from telecommunications or internet service provider failures outside of our datacenter as measured by our third party website availability monitoring provider; and (iv) any interruption or unavailability resulting from the misuse, improper use, alteration, or damage of the Subscription Service. “Service Uptime” means (total hours in calendar month – unscheduled maintenance which causes unavailability – Priority 1 issue durations – scheduled maintenance – Excluded) / (Total hours in calendar month – scheduled maintenance – Excluded) X 100%.
We will use commercially reasonable efforts to meet a Service Uptime of 99.00% for our Subscription Service in a given calendar month. All availability calculations will be based on our system records. Notwithstanding anything to the contrary in this Agreement, as Customer’s sole and exclusive remedy for failure to meet availability or support commitments, in the event there are two (2) or more consecutive calendar months during which the Service Uptime falls below 99.00% in a given calendar month, Customer will be entitled to receive a credit equal to the pro-rated amount of fees applicable to the downtime as measured within two (2) or more consecutive calendar months during which the Service Uptime fell below 99.00%, which credit shall be applied against an invoice or charge for the following renewal Subscription Term, provided Customer requests such credit within twenty (20) days of the end of the relevant calendar month. Notwithstanding anything to the contrary in the Agreement or this section, this ‘Service Level Commitment’ section does not apply to our Free Services.
3 Customer Support
If you pay us a Subscription Fee for our Free services, email and in-app support is included at no additional cost. If you pay us a Subscription Fee for our other products, then phone, email and in-app support is included at no additional cost.
3.1 Phone Support
Phone support is available from 8am-5pm (Mountain Time): +1 (801) 515-6500
3.2 Email and In-app Support
Email and in-app responses are provided during phone support hours only. We attempt to respond to email and in-app support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time. We may limit or deny your access to support if we determine, in our reasonable discretion, that you are acting, or have acted, in a way that results or has resulted in misuse of support or abuse of Spectiv representatives.
3.3 Support Limitations
Issues resulting from your use of API’s or your modifications to code in the Subscription Service may be outside the scope of support. We will only provide support for integrations which are listed in-app as being supported by Spectiv.