These Spin 360 Cloud Terms of Service (these “Terms”) describe your rights and responsibilities as a customer of our Cloud Products. These Terms are between you and the Spin 360 entity that owns or operates the Cloud Product that you are using or accessing listed on our website (“Spin 360”, “we” or “us”). “You” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please do not click “I agree” (or similar button or checkbox) that is presented to you. PLEASE NOTE THAT IF YOU SIGN UP FOR A CLOUD PRODUCT USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (C) THE WORD “YOU” IN THESE TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY. These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access a Cloud Product, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms by clicking “I agree” (or similar button or checkbox) at the time you register for a Cloud Product, create a Cloud Product account directly with us or registered through federated social signin accounts, or place an Order. For No-Charge Products, you also indicate your assent to these Terms by accessing or using the applicable No-Charge Product.
3. What's included in your Cloud Product subscriptions; what are the restrictions. 3.1. Access to Cloud Products. Subject to these Terms and during the applicable Subscription Term, you may access and use the Cloud Products for your own business purposes or personal use, as applicable, all in accordance with these Terms, the applicable Order and the Documentation. This includes the right, as part of your authorized use of the Cloud Products, to download and use the client software associated with the Cloud Products. The rights granted to you in this Section 3.1 are non-exclusive, non-sublicensable and non-transferable. 3.2. Support. During the Subscription Term, we will provide Support for the Cloud Products in accordance with the terms and the applicable Order. 3.3. Restrictions. Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the Cloud Products; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Cloud Products to a third party; (c) use the Cloud Products for the benefit of any third party; (d) incorporate any Cloud Products into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the Cloud Products intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Cloud Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any Cloud Product; (h) use the Cloud Products for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Cloud Products; or (j) encourage or assist any third party to do any of the foregoing.
5. Terms that apply to Your Data. 5.1. Using Your Data to provide Cloud Products to You. You retain all right, title and interest in and to Your Data in the form submitted to the Cloud Products. Subject to these Terms, and solely to the extent necessary to provide the Cloud Products to you, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your Data for display in a Cloud Product constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may also access your accounts, End User Accounts, and your Cloud Products with End User permission in order to respond to your support requests. 5.2. Your Data Compliance Obligations. You and your use of Cloud Products (including use by your End Users) must comply at all times with these Terms, the Acceptable Use Policy and all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Your Data to the Cloud Products and to grant the rights granted to us in these Terms and (ii) Your Data and its submission and use as you authorize in these Terms will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Your Data. Other than our express obligations under Section 4 (Our security and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the Cloud Products. 5.3. No Sensitive Data. You will not submit to the Cloud Products (or use the Cloud Products to collect) any Sensitive Data. You also acknowledge that we are not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA). The Cloud Products are neither HIPAA nor PCI DSS compliant. Notwithstanding any other provision to the contrary, we have no liability under these Terms for Sensitive Data.
5.4. Your Indemnity. You will defend, indemnify and hold us (and our Affiliates, officers, directors, agents and employees) harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to (i) your breach of Section 2.3 (End User Consent) or any claims or disputes brought by your End Users arising out of their use of Cloud Products, (ii) your breach (or alleged breach) of Sections 5.2 (Your Data Compliance Obligations) or 5.3 (No Sensitive Data); or (iii) Your Materials. This indemnification obligation is subject to you receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such claim and (c) all reasonable necessary cooperation by us at your expense.
5.5. Removals and Suspension. We have no obligation to monitor any content uploaded to the Cloud Products. Nonetheless, if we deem such action necessary based on your violation of these Terms, including Our Policies, or in response to takedown requests that we receive following our guidelines for Reporting Copyright and Trademark Violations, we may (1) remove Your Data from the Cloud Products or (2) suspend your access to the Cloud Products. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Cloud Product or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to any Cloud Products as described in this Section 5.5
6. Using third-party products with the Cloud Products. 6.1. Third-Party Products. You (including your End Users) may choose to use or procure other third party products or services in connection with the Cloud Products, including Third Party Apps (see Section 6.2 (Marketplace Apps)) or implementation, customization, training or other services. Your receipt or use of any third party products or services (and the third parties’ use of any of Your Data) is subject to a separate agreement between you and the third party provider. If you enable or use third party products or services with the Cloud Products (including Third Party Apps as referenced in Section 6.2 (Marketplace Apps)), we will allow the third party providers to access or use Your Data as required for the interoperation of their products and services with the Cloud Products. This may include transmitting, transferring, modifying or deleting Your Data, or storing Your Data on systems belonging to the third party providers or other third parties. Any third party provider’s use of Your Data is subject to the applicable agreement between you and such third party provider. We are not responsible for any access to or use of Your Data by third party providers or their products or services, or for the security or privacy practices of any third party provider or its products or services. You are solely responsible for your decision to permit any third party provider or third party product or service to use Your Data. It is your responsibility to carefully review the agreement between you and the third party provider, as provided by the applicable third party provider. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OR VENDORS. 6.2. Marketplace Apps. Spin 360 Apps for Cloud Products are considered “Cloud Products” under these Terms (unless we specify otherwise through the Spin 360 Marketplace). Third Party Apps are not Cloud Products and remain subject to their own applicable Vendor Terms. We may enable interoperation of the Cloud Products with Third Party Apps as set forth in Section 6.1 (Third-Party Products). 8. Additional Services. 8.1. Additional Services. Subject to these Terms, you may purchase Additional Services that we will provide to you pursuant to the applicable Order. Additional Services may be subject to additional policies and terms as specified by us. 8.2. Our Deliverables. We will retain all right, title and interest in and to Our Deliverables. You may use any of Our Deliverables provided to you only in connection with the Cloud Products, subject to the same usage rights and restrictions as for the Cloud Products. For clarity, Our Deliverables are not considered Cloud Products, and any Cloud Products are not considered to be Our Deliverables. 8.3. Your Materials. You agree to provide us with reasonable access to Your Materials as reasonably necessary for our provision of Additional Services. If you do not provide us with timely access to Your Materials, our performance of Additional Services will be excused until you do so. You retain your rights in Your Materials, subject to our ownership of any Cloud Products, any of Our Deliverables or any of Our Technology underlying Your Materials. We will use Your Materials solely for purposes of performing the Additional Services. You represent and warrant that you have all necessary rights in Your Materials to provide them to us for such purposes. 8.4. Training Not Covered. Your purchase, and our provision, of Training is subject to our Training Terms and Policies, which is a separate agreement. 9. Billing, renewals, and payment. 9.1. Monthly and Annual Plans. Except for No-Charge Products, all Cloud Products are offered either on a monthly subscription basis or an annual subscription basis. 9.2. Renewals. Except as otherwise specified in your Order, unless either party cancels your subscription prior to expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term. You will provide any notice of non-renewal through the means we designate, which may include account settings in the Cloud Products or contacting our support team. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Cloud Product continuing to be offered and will be charged at the then-current rates. 9.3. Adding Users. You may add users, increase storage limits, or otherwise increase your use of Cloud Products by placing a new Order or modifying an existing Order. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term. 9.4. Payment. You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. If a PO number is required in order for an invoice to be paid, then you must provide such PO number to Spin 360 by emailing the PO number to firstname.lastname@example.org. For Additional Services provided at any non-Spin 360 location, unless otherwise specified in your Order, you will reimburse us for our pre-approved travel, lodging and meal expenses, which we may charge as incurred. Other than as expressly set forth in Section 10 (Our return policy), 18.3 (Warranty Remedy), Section 20 (IP Indemnification) or Section 24 (Changes to these Terms), all amounts are non-refundable, non- cancelable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, additional users, overages to set limits or scopes of use, expenses, and unpaid fees, as applicable. 9.5. Delivery. We will deliver the login instructions for Cloud Products to your account or through other reasonable means no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your Order has been processed. All deliveries under these Terms will be electronic. 10. Our return policy. As part of our commitment to customer satisfaction and without limiting the Performance Warranty in Section 18 (Warranties and Disclaimer), you may terminate your initial Order of a Cloud Product under these Terms, for no reason or any reason, by providing notice of termination to us no later than thirty (30) days after the Order date for such Cloud Product. In the event you terminate your initial Order under this Section 10, at your request (which may be made through your account with us), we will refund you the amount paid under such Order. This termination and refund right applies only to your initial Order of the Cloud Product and only if you exercise your termination right within the period specified above, and does not apply to Additional Services. You understand that we may change this practice in the future in accordance with Section 24 (Changes to these Terms).
11. Taxes not included. 11.1. Taxes. Your fees under these Terms exclude any taxes or duties payable in respect of the Cloud Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under these Terms. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide us with such exemption information, and we will use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available. 11.2. Withholding Taxes. You will pay all fees net of any applicable withholding taxes. You and we will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If we qualify for a tax exemption, or a reduced treaty withholding rate, we will provide you with reasonable documentary proof. You will provide us reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.
12. If you purchased through a Reseller. If you make any purchases through an authorized partner or reseller of Spin 360 (“Reseller”): (a) Instead of paying us, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller. We may suspend or terminate your rights to use Cloud Products if we do not receive the corresponding payment from the Reseller. (b) Your order details (e.g., the Cloud Products you are entitled to use, the number of End Users, the Subscription Term, etc.) will be as stated in the Order placed with us by the Reseller on your behalf, and Reseller is responsible for the accuracy of any such Order as communicated to us. (c) If you are entitled to a refund under these Terms, then unless we otherwise specify, we will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you. (d) Resellers are not authorized to modify these Terms or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in these Terms.
13. No contingencies on other products of future functionality. You acknowledge that the Cloud Products and Additional Services referenced in an Order are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of Cloud Products and Additional Services are separate and not contingent on each other, even if listed on the same Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Cloud Products beyond the current Subscription Term), or dependent on any oral or written public comments we make regarding future functionality or features.
14. Evaluations, trials, and betas. We may offer certain Cloud Products (including some VINVAN PTY LTD Apps) to you at no charge, including free accounts, trial use and Beta Versions as defined below (collectively, “No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted during the Subscription Term we designate (or, if not designated, until terminated in accordance with these Terms). Except as otherwise set forth in this Section 14, the terms and conditions of these Terms governing Cloud Products, including Section 3.3 (Restrictions), fully apply to No-Charge Products. We may modify or terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre- release and beta Cloud Products, and any pre-release and beta features within generally available Cloud Products, that we make available (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Cloud Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 14. All information regarding the characteristics, features or performance of any No-Charge Products (including Beta Versions) constitutes our Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support, warranty and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, OUR MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS WILL BE US$100.
15. IP Rights in the Cloud Products and Feedback. Cloud Products are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the Cloud Products). From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
16. Confidentiality. Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to the Cloud Products will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 16 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 16. The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
17. Term and Termination. 17.1. Term. These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Subscription Terms. 17.2. Termination for Cause. Either party may terminate these Terms (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). 17.3. Termination for Convenience. You may choose to stop using the Cloud Products and terminate these Terms (including all Orders) at any time for any reason upon written notice to us, but, unless you are exercising your right to terminate early pursuant to Section 10 (Our return policy), upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable. 17.4. Effects of Termination. Upon any expiration or termination of these Terms, you must cease using all Cloud Products and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable Subscription Term), so you should make sure to export Your Data using the functionality of the Cloud Products during the applicable Subscription Term. If you terminate these Terms in accordance with Section 17.2 (Termination for Cause), we will refund you any prepaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. If we terminate these Terms in accordance with Section 17.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise. 17.5. Survival. The following provisions will survive any termination or expiration of these Terms: Sections 3.3 (Restrictions), 5.4 (Your Indemnity), 6.1 (Third-Party Products), 9.4 (Payment), 11 (Taxes not included), 14 (Evaluations, trials, and betas) (disclaimers and use restrictions only), 15 (IP Rights in the Cloud Products and Feedback), 16 (Confidentiality), 17 (Term and Termination), 18.4 (Warranty Disclaimer), 19 (Limitations of Liability), 20 (IP Indemnification) (but solely with respect to claims arising from your use of Cloud Products during the Subscription Term), 22 (Dispute Resolution) and 26 (General Provisions).
18 Warranties and Disclaimer. 18.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms. 18.2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the Cloud Products (but we are not responsible for harmful materials submitted by you or End Users) (the “Performance Warranty”). 18.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the Cloud Product for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to No-Charge Products. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 18. 18.4. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 18, ALL CLOUD PRODUCTS, SUPPORT AND ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE CLOUD PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE CLOUD PRODUCTS NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA 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. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
19. Limitation of Liability. 19.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. 19.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. 19.3. Excluded Claims. “Excluded Claims” means (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in these Terms, and (3) your breach of Section 3.3 (Restrictions) or of Section 2 (Combining the Products with Open Source Software) of Third Party Code in Spin 360 Products. 19.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 19 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
20. IP Indemnification. We will defend you against any claim brought against you by a third party alleging that the Cloud Products, when used as authorized under these Terms, infringe a patent right granted in the United States, Australia or a member nation of the European Union or a copyright registered in such a jurisdiction (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the Cloud Products is (or in your opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of the Cloud Product in accordance with these Terms; (ii) substitute a substantially functionally similar Cloud Product; or (iii) terminate your right to continue using the Cloud Product and refund any prepaid amounts for the terminated portion of the Subscription Term. Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your subscription to a Cloud Product in the twelve (12) month period immediately preceding the Claim is less than US$100,000; (2) if the Cloud Product is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if the Cloud Product is used in combination with any non-Spin 360 product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Cloud Products; (5) to any Claim arising as a result of (y) Your Data or circumstances covered by your indemnification obligations in Section 5.4 (Your Indemnity) or (z) any third-party deliverables or components contained with the Cloud Products or (6) if you settle or make any admissions with respect to a Claim without our prior written consent. THIS SECTION 20 (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY CLOUD PRODUCT OR OTHER ITEMS WE PROVIDE UNDER THESE TERMS.
21. Publicity Rights. We may identify you as an Spin 360 customer in our promotional materials. We will promptly stop doing so upon your request sent to email@example.com
22. Dispute Resolution. 22.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 22.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 22.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions. 22.2. Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the New South Wales, Australia, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Sydney, New South Wales, Australia, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Sydney, New South Wales, Australia, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees. 22.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 22.1 (Informal Resolution) and 22.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction. 22.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.
23. Export Restrictions. The Cloud Products are subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your access to, use of, and download of the Cloud Products (or any part thereof). You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Cloud Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country and (ii) none of Your Data is controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Cloud Products for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.
24. Changes to these Terms. We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 26.1 (Notices) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications. 24.1. No-Charge Products. You must accept the modifications to continue using the No-Charge Products. If you object to the modifications, your exclusive remedy is to cease using the No- Charge Products. 24.2. Paid Subscriptions. Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 9.2 (Renewals). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the affected Cloud Products for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order. 24.3. Our Policies. We may modify Our Policies to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.
25. Changes to the Cloud Products. You acknowledge that the Cloud Products are on-line, subscription-based products, and that in order to provide improved customer experience we may make changes to the Cloud Products, and we may update the applicable Documentation accordingly. Subject to our obligation to provide Cloud Products and Additional Services under existing Orders, we can discontinue any Cloud Products, any Additional Services, or any portion or feature of any Cloud Products for any reason at any time without liability to you.
26. General Provisions. 26.1. Notices. Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to Spin 360, 20-26 Orara Street, Waitara, New South Wales, Australia Attn: General Counsel. Your notices to us will be deemed given upon receipt. 26.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. 26.3. Assignment. You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns. 26.4. Entire Agreement. These Terms are the entire agreement between you and us relating to the Cloud Products and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Cloud Products or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect. 26.5. Conflicts. In event of any conflict between the main body of these Terms and either Our Policies or Product-Specific Terms, Our Policies or Product-Specific Terms (as applicable) will control with respect to their subject matter. 26.6. Waivers; Modifications. No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 24 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party. 26.7. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect. 26.8. Independent Contractors. The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
USER CONTENT. 3.1. Ownership of the Service. You agree that we or our suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Service. Except as expressly set forth in these Terms, no rights in the Service are granted to you. 3.2. Feedback. We look forward to receiving your comments, requests and other feedback regarding the Service and you agree that we are free to incorporate and use your feedback without restriction of any kind, including in our promotional materials, in a manner that is attributable back to you. 3.3. User Content. The Service may enable you to share your content, such as projects, assignments, and the like (“User Content”), with us, instructors, and/or other users. For the avoidance of doubt, any User Content does not constitute “Materials” for the purposes of these Terms. You retain all intellectual property rights in, and are responsible for, the User Content you share. Your use of the Service and all User Content must comply with our Acceptable Use Policy at all times. To the extent that you provide User Content, you grant us a royalty-free, perpetual, sublicensable, transferable, non-exclusive, worldwide license to copy, distribute, modify, create derivative works of, publicly perform, publicly display, and otherwise use the User Content. We do not promise to store or make available on the Service any User Content for any length of time. We reserve the right to remove or modify User Content for any reason, including User Content that we believe violates these Terms. 3.4. No Confidential Information. You should not provide to us any information that you consider confidential (including in any feedback or User Content you provide) and you agree that we are not subject to any confidentiality obligations or use restrictions related to information or materials that you may provide to us in relation to the Service. 4. FEES & PAYMENT; REFUNDS. 4.1. Fees and Payment. Fees for Courses are as set forth on the Information Page. You are responsible for paying all fees for Courses you purchase as set forth in the applicable Order with a payment mechanism permitted during the Order process. You are required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on our income. If your payment method fails or your account is past due, we may collect fees using other collection mechanisms. Fees may vary based on your location and other factors, and we reserve the right to change any fees at any time at our sole discretion. Any fee change will be effective immediately upon posting through the Service. 4.2. Refunds. Our refund policies are set forth on the Information Page. 5. TERM AND TERMINATION. 5.1. Term and Terminations. These Terms are effective as of the earlier of (a) the date you first access or use the Service or (b) the date of your first Order, and continue in effect while you are accessing the Courses. We may terminate these Terms and your access to the Service at any time upon notice to you if you breach these Terms. 5.2. Effect of Termination. Upon any expiration or termination of these Terms, you will immediately cease any and all use of and access to the Service. Provided these Terms were not terminated for your breach, you may retain copies of any Materials, so long as you do not copy, distribute or otherwise use them in violation of these Terms. Except where an exclusive remedy is specified, the exercise of either party of any remedy under these Terms, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise. 5.3. Survival. The following Sections will survive any expiration or termination of these Terms: 1.3 (General Restrictions), 3 (Ownership and User Content), 4 (Fees & Payment; Refunds), 5 (Term and Termination), 6 (Warranty Disclaimer), 8 (Limitation of Remedies and Damages), 9 (Indemnity), 10 (Dispute Resolution) and 11 (General Terms). 6. WARRANTY DISCLAIMER. The service is provided “as is”. we and our suppliers do not make any warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose or noninfringement. We do not warrant that your use of the service will be uniterrupted or error-free. We shall not be liable for delays, interruptions, website failures or other problems inherent in use of the internet and electronic communications or other systems outside our reasonable control. The courses are provided for guidance only, and we make no warranties as to its accuracy or reliability. The service is accessed and used at your own discretion and risk and we shall not be responsible for any damage caused to your computer or data or for any bugs, viruses, trojan horses or other destructive code resulting from access to or use of the service. You may have other statutory rights, but the duration of statutorily required warranties, if any, shall be limited to the shortest period permitted by law.
7. SUPPORT. If you have any support inquiries regarding the Service, please see our online support resources available on our website. For the avoidance of doubt, the Service does not include support services.
8. LIMITATION OF REMEDIES AND DAMAGES. 8.1. Consequential Damages Waiver. Except for claims arising from your breach of section 1.3 (general restrictions) or your indemnification obligations under section 9, neither party nor its suppliers shall have any liability arising out of or related to these terms for any loss of use, lost or inaccurate data, lost profits, failure of security mechanisms, interruption of business, costs of delay or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of the possibility of such damages in advance. 8.2. Liability Cap. Our and our suppliers’ entire liability to you arising out of or related to these terms shall not exceed the amount actually paid by you to us for the service during the prior twelve (12) months under these terms. 8.3. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 8 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
9. INDEMNITY. You will defend, indemnify, and hold us harmless from and against any claim by a third party arising from or related to: (a) your use or attempted use of the Service in violation of these Terms, (b) your violation of any law or rights of any third party, or (c) any User Content, including without limitation any claim of infringement, misappropriation, or violation of any intellectual property, privacy, or other rights.
10. DISPUTE RESOLUTION. 10.1. Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to these Terms, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, any unresolved controversy or claim arising out of or relating to these Terms shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in the following city between the parties: Sydney (Australia). All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English. 10.2. Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the New South Wales, Australia, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 10.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Sydney, NSW, Australia and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Sydney, NSW, Australia generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Spin 360 may bring a claim for equitable relief in any court with proper jurisdiction. 10.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 10.1 (Dispute Resolution; Arbitration), nothing in these Terms shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction. 10.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms regardless of when or where adopted.
11. GENERAL TERMS. We may provide you with required or permitted notices via email or the Service, as determined by us in our discretion. Any notices you give to us under these Terms will be deemed given only when personally delivered, delivered by reputable international courier requiring signature for receipt, or three (3) business days after being deposited in the mail, first class, postage prepaid, in each case to:
Spin 360 Pty 20-26 Orara Street, Waitara, NSW 2077, Australia Attn: General Counsel.
The parties are independent contractors, and there is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. If a court having proper authority decides that any portion of these Terms is invalid, only the part that is invalid will not apply, and the rest of these Terms will still be in effect. If we waive any of our rights under these Terms in any particular instance, it does not mean that we are waiving our rights generally or in the future. Furthermore, just because we may not enforce all our rights all of the time, it does not mean that we are waiving our rights, as we may decide to enforce them at a later date. Except as set forth herein, all amendments to these Terms must be in writing and signed by both parties. These Terms are the entire agreement between the parties with respect to its subject matter and supersede any prior agreements relating to such subject matter. These Terms, and any rights and licenses granted under these Terms, may not be transferred or assigned by you without our prior written consent, but may be assigned by us without restriction. We won’t be liable to you for any delay or failure to perform any obligation we have under these Terms if the delay or failure is due to events which are beyond our reasonable control, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency. We may use the services of subcontractors and permit them to exercise the rights granted to us in order to provide the Service under these Terms. From time to time, we may add, remove, or change the Courses we offer to you or otherwise modify the Service. We will use reasonable efforts to notify you of any addition or removal of Courses.
For more information about privacy in general, you can visit the Australian Information Commissioner’s website at www.oaic.gov.au