The Spoke Terms of Service (“ToS”) is a legal agreement between “you” or “Client” and Unboxed Technology, LLC “Unboxed Technology”, a Virginia limited liability company.
The ToS governs your acquisition and use of our Spoke software (“Software”) directly from Unboxed Technology or indirectly through an Unboxed Technology authorized affiliate or referral partner (a “Referral Affiliate”).
Please read the ToS carefully before using the Spoke software. It provides a Software as a Service (SaaS) subscription to use the Spoke software and contains warranty information and liability disclaimers.
If you register for a free trial of the Spoke software, the ToS will also govern that trial. By installing and/or using the Spoke software, you are confirming your acceptance of the Software and agreeing to become bound by the terms of the ToS. At the end of the free trial, both parties will agree to a Spoke Statement of Work (“SOW”) to continue services.
If you are entering into the ToS on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions. If you do not have such authority or if you do not agree with the terms and conditions of the ToS, do not install or use the Software, and you must not accept the ToS.
The ToS shall apply only to the Software supplied by Unboxed Technology herewith regardless of whether other software is referred to or described herein. The terms also apply to any Unboxed Technology updates, supplements, and support services for the Software, unless other terms are detailed in the SOW.
1. SERVICE LEVEL AGREEMENT
Unboxed Technology uses its best efforts to provide the following:
A. A reputable, highly secure, and scalable online hosting platform from leading hosting companies to support agreed upon deliverables. Unboxed will continue to evaluate the best hosting companies and options as technology changes and make modifications to ensure the highest level of performance. Unboxed or its third-party hosting provider shall be up and available for use by Client at least 99.9% of the time each month between the hours of 8:00am and 9:00pm Eastern Standard Time, and to the extent reasonably possible Unboxed shall provide Client advance notice of any time periods when Unboxed anticipates or knows their system or third-party hosting provider accessed by Client may be down or unavailable (e.g., scheduled maintenance).
B. All bug fixes and other patches, correction, or upgrades that remediate coding errors and other software problems that prevent the Deliverables from properly functioning.
C. Spoke and Spoke Reports will be functional with the following web browsers and operating systems:*
i) Internet Explorer – current version and one version prior
ii) Microsoft Edge – current version and one version prior
iii) Chrome – current version and one version prior
iv) Safari – current version and one version prior
v) iOS (iPad and iPhone) – current version and one version prior
vi) Android (tablet and phone) – current version and one version prior
vii) Mac – current version and one version prior
viii) Windows – current version and one version prior
*If a critical security vulnerability is identified on one of the platforms above, Unboxed may need to update to a patched version and may be unable to test one version prior.
2. SUBSCRIPTION RIGHTS
Unboxed Technology hereby grants you a personal, non-transferable, non-exclusive subscription to use the Spoke software on your devices in accordance with the ToS.
Your users are permitted to access the Spoke software (for example a PC, laptop, mobile or tablet) under your control. You are responsible for ensuring your device meets the minimum requirements of the Spoke software.
You are not permitted to:
A. Edit, alter, modify, adapt, translate, prepare derivative works of, or otherwise change the whole or any part of the Software nor permit the whole or any part of the Software to be combined with or become incorporated in any other software, nor decompile, disassemble or reverse engineer the Software or attempt to do any such things
B. Reproduce, copy, distribute, resell, assign or otherwise use the Software for any commercial purpose
C. Allow any third party to use the Software on behalf of or for the benefit of any third party without written approval from Unboxed Technology
D. Use the Software in any way which breaches any applicable local, national or international law
E. Use the Software for any purpose that Unboxed Technology considers is a breach of the ToS
3. SUBSCRIPTION & SERVICE FEES
In consideration for the subscription granted by Unboxed Technology under the ToS, Client shall pay Unboxed Technology a subscription fee and fees for any additional services in the amount and terms set forth in the respective SOW (“Subscription & Service Fees”). Subscription & Service Fees are subject to change upon the first day of each Renewal Term. Subscription & Service Fees are non-refundable.
Client shall, in addition to the other amounts payable under the ToS, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by the ToS, excluding only taxes based on Unboxed Technology’s net income. Client agrees to indemnify, defend, and hold Unboxed Technology, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Client’s failure to report or pay any such taxes, duties or assessments.
5. PAYMENT TERMS
All amounts payable to Unboxed Technology under the ToS will be paid according to the pricing and payment terms, as set forth in the Spoke SOW. Unboxed Technology may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. Any change to our pricing or payment terms shall be governed by the SOW. Overdue payments will be subject to interest at the rate of 1.5% per month, or the maximum allowable under applicable law, whichever is less.
The ToS is effective from the date you first use the Software and shall continue until terminated. You may terminate it at any time upon 30-days written notice to Unboxed Technology prior to your renewal date.
It will also terminate immediately if you fail to comply with any term of the ToS. Upon such termination, the subscriptions granted by the ToS will immediately terminate and you agree to stop all access to and use of the Software, immediately destroy or permanently delete all copies, full or partial of the Software, and provide written notice, signed by your authorized representative, that you have complied with the foregoing obligations. The provisions that by their nature continue and survive will survive any termination of the ToS including timely payment of your Subscription & Service Fees.
7. INTELLECTUAL PROPERTY AND OWNERSHIP
Unboxed Technology shall at all times retain ownership of the Software and all subsequent updates of the Software. The Software (and the copyright, and other intellectual property rights of whatever nature in the Software, including any modifications made thereto) are and shall remain the property of Unboxed Technology.
Unboxed Technology reserves the right to grant subscriptions to use the Software to other parties.
As between Client and Unboxed Technology, the Client shall retain all right, title and interest in and to the Client Data and all Intellectual Property Rights therein. Nothing in the ToS will confer on Unboxed Technology any right of ownership or interest in the Client Data or the Intellectual Property rights therein.
8. PRIVACY, SECURITY AND DATA BACKUP
“Process” means to perform any operation or set of operations on any data, information, material, work, expression or other content, including to (i) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other improvements or derivative works, (ii) process, retrieve, output, consult, use, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or (iii) block, erase or destroy.
“User Data” means any and all information, data, materials, works, expressions or other content, including any that are (i) uploaded, submitted, posted, transferred, transmitted or otherwise provided or made available by or on behalf of Client or any of its customers or their respective users through the Services subscribed hereunder, or (ii) collected, downloaded or otherwise received by Unboxed or the Services subscribed hereunder for Client or any of its customers or their respective users pursuant to the Spoke SOW or at the written request or instruction of Client or any of its customers or their respective users. All output, copies, reproductions, improvements, modifications, adaptations, translations and other derivative works of, based on, derived from or otherwise using any User Data are themselves also User Data.
Permitted Use. Unboxed shall not cause or permit any User Data to be Processed in any manner or for any purpose other than the performance of the Services subscribed hereunder in compliance with the restrictions set forth in the ToS and all applicable laws. Unboxed represents, warrants and covenants that it shall not Process or otherwise undertake or refrain from any act with respect to any User Data in any manner, including any actual or attempted Processing thereof, except for the sole purpose of performing the Services subscribed hereunder and in compliance with: (i) the express terms and conditions of the SOW or as Client may hereafter expressly direct in advance in writing; (ii) Client’s then current privacy, security and backup policies; and (iii) all applicable laws.
Privacy and Security. Unboxed shall maintain and enforce a privacy and information security program, including safety and physical and technical security policies and procedures, with respect to its User Data and Client’s Confidential Information.
Compliance with Laws; Privacy. You also are responsible for complying with all applicable governmental regulations of any non-U.S. countries. You shall not transmit any personally identifiable information to Unboxed Technology with the exception of information required to setup user accounts. Additionally, you should not transmit to Unboxed Technology any Social security numbers, credit card information, web data such as IP addresses cookies, RFID tags, biometric data, racial or ethnic data, political opinion or sexual orientation.
Data Backup. Unboxed shall conduct backups of User Data and store such backup User Data in a commercially reasonable location and manner consistent with industry practices and standards.
Nondisclosure. Each Party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other Party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under the ToS and only to the extent necessary for such purposes; shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know; and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. Confidential Information includes, but is not limited to, all information, whether written or oral, and in any form, including without limitation, information relating to the ToS, research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, and third-party proprietary information. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. All third parties to whom the Receiving Party discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as the ToS. Notwithstanding the foregoing, it shall not be a breach of the ToS for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
Exceptions. Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of the ToS by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in the ToS.
Remedies. The Receiving Party agrees that a breach of this Section may result in immediate and irreparable harm to the Disclosing Party and that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
Unboxed Technology shall indemnify, defend and hold you harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses arising from a claim that Spoke violates any applicable statute, regulation or law, or infringes any intellectual property right or other legal right of any third party (a “Claim”). This indemnity does not apply to, and Unboxed Technology will have no obligation to Client for, any infringement or misappropriation claim that arises from (i) modifications to Spoke by anyone other than Unboxed Technology, (ii) modifications to Spoke based upon specifications furnished by Client, (iii) Client’s use of Spoke other than as specified in the ToS or in the applicable documentation, (iv) use of Spoke in conjunction with third-party software, hardware or data other than that approved by Unboxed Technology or (v) any combination of the foregoing. You shall indemnify, defend and hold Unboxed Technology and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses arising from a claim that the User Data violates any applicable statute, regulation or law, or infringes any intellectual property right or other legal right of any third party (a “Claim”), and shall give Unboxed Technology all reasonable information and assistance regarding such claim.
The indemnified Party shall promptly notify the indemnifying Party in writing of any Claim; provided that the failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying Party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any Claim; provided, however, that (i) the indemnifying Party shall keep the indemnified Party informed of, and consult with the indemnified Party in connection with the progress of such litigation or settlement and (ii) the indemnifying Party shall not settle any such Claim in a manner that does not unconditionally release the indemnified Party without the indemnified Party’s written consent.
In the event any portion of Spoke is held or believed by Unboxed Technology, or any portion of the User Data is held or believed by Client, to infringe or misappropriate Intellectual Property Rights of any third party (such portion to be deemed the “Infringing Materials”) in any place where Spoke is used or accessed, then in addition to any other rights, Unboxed Technology (where the Infringing Materials are Spoke) or Client (where the Infringing Materials are the User Data) shall, at its sole expense and at its option: (i) obtain from such third party the right for the other party to continue to use the Infringing Materials; or (ii) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; or (iii) upon mutual agreement with the other party, remove and disable the Infringing Materials; or (iv) if none of the foregoing remedies is commercially feasible, terminate the ToS.
THIS SECTION SETS FORTH EACH PARTY’S ENTIRE LIABILITY AND OBLIGATION, AND EACH PARTY’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS.
11. LIMITED SOFTWARE WARRANTY
Scope of Limited Warranty. Unboxed Technology warrants to Client that during the Term, the Software will perform substantially in accordance with the Spoke Tech Specifications. The foregoing warranty shall not apply to performance issues of Unboxed Technology (i) caused by factors outside of Unboxed Technology’s reasonable control; (ii) that result from any actions or inactions of Client or any third parties; or (iii) that result from Client’s data structure, operating environment or equipment.
Sole Remedy. Should the Software not perform or function as expressly warranted herein, Unboxed Technology shall use its commercially reasonable efforts to correct the nonconformities giving rise to such breach. The foregoing remedy is available only if Client notifies Unboxed Technology in writing of such non-conformity within fifteen (15) days of its discovery by Client, and Unboxed Technology’s examination of the Software discloses that such non-conformity exists. The foregoing remedies shall be Client’s sole and exclusive remedies and Unboxed Technology’s entire liability for any breach of the warranty set forth herein.
Disclaimer of Any Other Warranties. EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED, UNBOXED TECHNOLOGY MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SUBSCRIBED MATERIALS, UNBOXED TECHNOLOGY, OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED HEREUNDER. UNBOXED TECHNOLOGY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND OF UNINTERRUPTED OR ERROR-FREE SERVICE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS.
12. SOLE REMEDY
Your sole and exclusive remedies for (i) any damages or loss in any way connected with the Software provided by Unboxed Technology, and (ii) any and all performance or non-performance of the Software provided hereunder, if any, whether or not due to Unboxed Technology’s negligence or breach of any other duty, shall be updating the Software. Unboxed Technology will not be responsible under the ToS for the correction of any program errors as a result of modification or misuse of the Software by you. Under no condition will Unboxed Technology be responsible under the ToS for preparation or conversion of data into the form required for use with the Software.
Notices shall be in writing and shall be deemed to have been received by each of the parties hereto on: (i) the date when delivered by hand, receipt of which is acknowledged in each instance; (ii) the business day immediately following the day when delivered to Federal Express (or a comparable overnight courier service) for overnight or next day delivery to the address below, with respect to notices to Unboxed Technology, and the address provided by you to Unboxed Technology for purposes of invoicing with respect to notices to you (or such notice address as each party may provide to the other from time to time, or (iii) three (3) business days after the date when mailed by United States certified mail (postage prepaid, return receipt requested) to:
2201 West Broad Street, Suite 202
Richmond, Virginia 23220
Notice may also be provided, and is effective the date provided, by e-mail to the appropriate Client Manager on behalf of Unboxed Technology and to you at the email you provide below.
14. GOVERNING LAW
The ToS, and any dispute arising out of or in connection with the ToS, shall be governed by and construed in accordance with the laws of Virginia. Jurisdiction and venue for any action arising under the ToS shall be only in a Virginia court located in Richmond, Virginia before a judge sitting without a jury. BOTH PARTIES KNOWINGLY WAIVE THE RIGHT TO A JURY TRIAL AND THE RIGHT TO MOVE FOR A CHANGE OF JURISDICTION OR VENUE.
15. ENTIRE AGREEMENT; AMENDMENT; WAIVER
The ToS constitutes this entire Agreement between the parties pertaining to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties, whether oral or written. No amendment, supplement, modification, waiver, or termination of the ToS shall be binding unless executed in writing by the party to be bound thereby. No waiver of any of the provisions of the ToS shall be deemed or shall constitute a waiver of any other provision of the ToS, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
The possible invalidity of individual provisions of the ToS does not invalidate the ToS as a whole.
17. NO AGENCY
The ToS does not constitute an agency, partnership, or joint venture between the Parties, and neither Party shall have the authority or power to obligate or bind the other Party in any manner whatsoever, except as specifically provided herein in the ToS.
18. DIGITAL SIGNATURE PROVISION
Digital Signature Provision. Client represents and warrants that the individual electronically agreeing to the ToS is empowered to agree to the ToS on behalf of Client. Client agrees that an electronic signature as defined in the Electronic Signatures in Global and National Commerce Act validly binds Client.
Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under the ToS without the prior written consent of the other Party. Notwithstanding the foregoing, Unboxed Technology may, without the consent of Clients, assign the ToS to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee shall assume all rights and obligations under the ToS. Any permitted assignment of the ToS shall be binding upon and enforceable by and against the Parties’ successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of the ToS.
20. FORCE MAJEURE
Neither party shall be entitled to recover damages or terminate this Agreement by virtue of any delay or default in performance by the other party (other than a delay or default in the payment of money) if such delay or default is caused by Acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected; provided that the party experiencing the difficulty shall give the other prompt written notice following the occurrence of the cause relied upon, explaining the cause and its effect in reasonable detail. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
Version 2.2 – September 24, 2018