Spoiler Alert Terms & Conditions
These Terms & Conditions are in effect between Material Impact Inc. (herein “Spoiler Alert” or “SA”) and any businesses (herein “Customer”) with which it has an active service agreement (herein “Agreement”). Any terms included in an Agreement signed between Spoiler Alert and its Customer shall supersede the terms included in these Terms & Conditions.
1.1 “Confidential Information” shall mean any and all information or proprietary materials (in every form and media) not generally known to the public and which has been or is hereafter disclosed or made available by either party (the “disclosing party”) to the other (the “receiving party”) in connection with the efforts contemplated hereunder, including (i) all trade secrets, (ii) the Platform and any portion thereof, and (iii) the Customer Data.
1.2 “Customer” shall have the meaning set forth in the introductory paragraph of these Terms & Conditions and/or any Agreement.
1.3 “Customer Data” shall have the meaning set forth in Section 4.3 hereto.
1.4 “Effective Date” shall have the meaning set forth in the introductory paragraph to any Agreement.
1.5 “Fees” shall have the meaning set forth in the Agreement.
1.6 “Force Majeure” shall have the meaning set forth in Section 9.3 hereof.
1.7 “Intellectual Property Rights” means any patent, patent application, copyright, moral right, trade name, trademark, service mark, trade secret, and any applications or right to apply for registration therefor, computer software programs or applications, tangible or intangible proprietary information, or any other intellectual property right, in any media, whether registered or unregistered, and whether first made or created before or after the Effective Date.
1.8 “Platform” means the Spoiler Alert platform made available by SA from time to time, as further described in any Agreement.
1.9 “Services” means the services set forth in any Agreement.
1.10 “Subscription Period” means the period set forth in any Agreement.
1.11 “Term” shall have the meaning set forth in Section 9.1 hereof.
1.12 “User” means any employee, agent and/or representative acting on behalf of Customer that has been registered by Customer and authorized to access the Platform by SA and for whom Customer has issued a username and password supplied by SA. Each User shall be issued a separate username and password, which shall be used only by such User.
2. Spoiler Alert Platform Access and Implementation
2.2 Users; Login Credentials. Customer shall be permitted concurrent access and use of the Platform for the number of concurrent Users set forth in any Agreement. SA will assign an initial password to Customer, and Customer must then assign a username and password to each individual User. Customer’s assigned username and passwords shall be maintained as confidential by Customer and shall not be distributed or disclosed, except to employees of SA with a need to know in accordance with any Agreement. It is Customer’s responsibility to immediately terminate a username and/or password upon its knowledge or belief that such username and/or password is or may be subject to a breach of any Agreement, including without limitation a breach of confidentiality. Customer is responsible for all acts and omissions of its Users. At SA’s request, Customer will promptly terminate a User’s access to the Platform if SA reasonably believes that such individual is in breach of system security or is otherwise misusing or abusing the Platform or access to the Platform. SA reserves the right to suspend or terminate any part or portion of the Platform if it reasonably believes that Customer is misusing or abusing the Platform or is otherwise in breach of any Agreement. Nothing in this Section 2.2 imposes on SA an obligation to supervise or monitor use of the Platform.
2.3 Restrictions. Customer shall not, and shall not permit any person or entity to: (i) use the Platform on a service bureau, time sharing or any similar basis, or for the benefit of any other person or entity; (ii) alter, enhance, or make derivative works of the Platform; (iii) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code from, the Platform or any software component of the Platform; (iv) use, or allow the use of, the Platform for any unfair or deceptive practices or in contravention of any federal, state, local, foreign, or other applicable law, or rules and regulations of regulatory or administrative organizations; (v) introduce in or to the Platform any virus or implement a denial of service attack or introduce or implement any other code or routine which results in disruption or damage to the Platform, alter, damage or delete any data or retrieve or record information about the Platform or its uses; and/or (vi) act in a fraudulent, tortious malicious, or negligent manner when using the Platform.
2.4 Access to Internet. Customer shall, at its own cost and expense, provide all equipment, operating systems, and software (including Web browser) needed for Customer to use and access the Platform in accordance with the technical requirements in SA’s documentation. Customer shall also provide, at its own cost and expense, all connections from its computer systems to the Platform.
2.5 Changes to Access. SA shall provide Customer with thirty (30) days written notification in the event of any: (a) material change in or to the Platform; or (b) change in or modification to the method that Customer accesses the Platform, or in any method of accessing, inputting, or downloading data into, via, or from the Platform.
3.1 Fees. Fees shall be payable by Customer to SA in accordance with any Agreement.
3.2 Late Payments. In the event of any late payment, SA may add a monthly interest charge equal to the lesser of (i) one and one-half percent (1.5%) per month, or (ii) the highest lawful rate allowed, on the unpaid balance of an invoice. SA may add the cost of reasonable attorney’s fees required to collect on the unpaid balance of the invoice. SA may suspend Platform if Customer does not pay fees promptly.
3.3 Taxes. Customer is responsible for paying all applicable fees and taxes it may incur in connection with Customer’s access to and use of the Platform. Customer agrees to pay amounts equal to any federal, state or local sales, use, excise, privilege or other taxes or assessments, however designated or levied, relating to any amounts payable by Customer to SA hereunder, any Agreement, or the Platform provided by SA to Customer pursuant hereto, and any taxes or amounts in lieu thereof paid or payable by SA, excluding taxes based on SA’s net income.
4.1 Platform. Customer acknowledges that the structure, organization, and code used in conjunction with the Platform are proprietary to SA and/or SA’s licensors, and that SA and/or its licensors retain exclusive ownership of the Platform, documentation, and any other Intellectual Property Rights relating to the Platform, including all modifications, enhancements, derivatives, and other software and materials relating to the Platform, and all copies thereof. Customer shall not sell, transfer, publish, disclose, display or otherwise make available the Platform, including any modifications, enhancements, derivatives, and other software and materials provided hereunder by SA or copies thereof to others in violation of any Agreement. The Platform shall be deemed to be Confidential Information hereunder and subject to the confidentiality restrictions set forth in Section 5. Except as otherwise expressly permitted hereunder, Customer agrees not to copy or otherwise reproduce the Platform, including any modifications, enhancements, derivatives, and other software and materials developed or provided hereunder by SA, in whole or in part. Customer shall not remove any proprietary, copyright, trademark, or service mark legend from the Platform, including any modifications, enhancements, derivatives, and other software and materials provided by SA. Customer agrees to make all necessary and reasonable efforts to comply with the above provisions in the same manner which Customer takes to secure and protect its own confidential information, but no less than reasonable care, in order to maintain SA’s rights therein and to take appropriate action by instruction or agreement with its Users who are permitted access to the Platform.
4.2 SA Marks. Customer acknowledges that “Spoiler Alert” and any other trademarks and service marks adopted by SA to identify the Platform and other SA services belong to SA.
4.3 Customer Data. As between Customer and SA, Customer shall own all rights in and to all data inputted by Customer or a Customer User into or via the Platform or otherwise provided by Customer to SA (“Customer Data”). Customer Data shall be the Confidential Information of Customer. Customer grants SA the right to use and access the Customer Data solely to the extent necessary to provide the Platform or as provided in Section 5.5. Customer covenants that it will supply SA and the Platform only with data that Customer has the right to supply for purposes set forth in any Agreement.
5.1 Restrictions on Use and Disclosure. Both parties acknowledge that either may receive Confidential Information from the other during the Term of any Agreement. The receiving party shall disclose the other party’s Confidential Information only to persons within the receiving party having the need to know the information for the purposes of any Agreement. The receiving party shall treat Confidential Information as it does its own valuable and sensitive information of a similar nature, and, in any event, with not less than reasonable care. Upon the disclosing party’s written request, the receiving party shall return or certify the destruction of all Confidential Information provided to it by the disclosing party.
5.2 Exceptions. The obligations of either party under Section 5.1 will not apply to information that the receiving party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party, (iii) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the receiving party, (iv) is independently developed by the receiving party without regard to the Confidential Information of the other party. Further, the receiving party may disclose Confidential Information to the extent such disclosure is required by law or order of a court of competent jurisdiction or regulatory authority, provided that the receiving party shall furnish prompt written notice of such required disclosure and reasonably cooperate with the disclosing party, at the disclosing party’s cost and expense, in any effort made by the disclosing party to seek a protective order or other appropriate protection of its Confidential Information.
5.3 Equitable Relief. Failure on the part of the receiving party to abide by this Section 5 shall cause the disclosing party irreparable harm for which damages, although available, may not be an adequate remedy at law. Accordingly, the disclosing party has the right to seek an injunction to prevent any violations or attempted violations of this Section 5 and seek to recover court costs and reasonable attorney’s fees incurred by the disclosing party in the enforcement of this section.
5.4 Aggregated Data. Customer acknowledges and agrees that SA may store and use Customer Data in Anonymized Form, as defined below, for marketing, analytics or other business purposes. For purposes of any Agreement, “Anonymized Form” shall refer to data and information that, to the extent previously identifiable, has been irreversibly aggregated, masked, deleted, suppressed, or otherwise de-identified, in whole or in relevant portion, by SA so that a third party accessing such data could not link it to Customer, a specific Customer User, or any individual or entity.
6.1 By Customer. Customer shall defend, indemnify and hold SA, its directors, officers, employees, licensors, agents, successors, and assigns harmless from and against all third party liabilities, losses, costs, expenses, (including reasonable attorney’s fees), and damages awarded to a third party by a court of competent jurisdiction or in a settlement approved by Customer relating to or arising from or in connection with a third party claim based on (i) the use of the Platform other than in compliance with any Agreement by Customer or any of its Users; or (ii) any information or results obtained through Customer’s use of the Platform or access to the Platform.
6.2 By SA. SA shall defend, indemnify and hold Customer, its directors, officers, employees, licensors, agents, successors, and assigns harmless from and against all third party liabilities, losses, costs, expenses, (including reasonable attorney’s fees), and damages awarded to a third party by a court of competent jurisdiction or in a settlement approved by SA relating to or arising from or in connection with a third party claim alleging that the Platform, or Customer’s use of the Platform in compliance with any Agreement, directly infringes or misappropriates the intellectual property of any third party.
6.3 Procedure. A party’s obligations to indemnify the other party with respect to any third party claim, action or proceeding shall be conditioned upon the indemnified party: (i) providing the indemnifying party with prompt written notice of such claim, action or proceeding, provided that any failure to give or delay in giving notice shall relieve the indemnifying party of its obligations only to the extent it materially prejudices the indemnifying party’s ability to defend the applicable claim; (ii) permitting the indemnifying party to assume and solely control the defense of such claim, action or proceeding and all related settlement negotiations, with counsel chosen by the indemnifying party, and (iii) cooperating at the indemnifying party’s request and expense with the defense or settlement of such claim, action or proceeding, which cooperation shall include providing reasonable assistance and information. No indemnified party shall enter into any settlement agreement for which it will seek indemnification under any Agreement from the indemnifying party without the prior written consent of the indemnifying party. Nothing herein shall restrict the right of a party to participate in a claim, action or proceeding through its own counsel and at its own expense.
7. Limited Warranties
7.1 Platform. SA warrants that, during the Term of any Agreement, the Platform will, under normal operation as set forth in SA’s help screens and when used as authorized herein, perform substantially in accordance with the documentation provided to Customer. SA’s sole obligation and Customer’s exclusive remedy for any breach of this warranty is limited to (i) repair or replacement of the Platform by SA, or (ii) in the event that SA is unable to repair or replace the specific non-conforming portion of the Platform after using its commercially reasonable efforts, refund of any prepaid unused amounts, prorated to the date the nonconformity first arose. SA’s obligations hereunder for breach of the warranty are conditioned upon Customer notifying SA of the breach in writing within fourteen (14) days after the breach occurs, and, unless impossible, providing SA with sufficient documentation of such non-conformity to enable SA to reproduce and verify the same.
7.2 Results at Customer’s Risk. Customer acknowledges that any reports, data or information generated, obtained or acquired through the use of the Platform are at Customer’s sole risk and discretion. SA and its licensors are not liable or responsible for any results generated through the use of the Platform.
7.3 Disclaimer. EXCEPT AS PROVIDED IN THIS SECTION 7, SA AND ITS LICENSORS MAKE AND GIVE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND GUARANTIES, WHETHER ORAL OR WRITTEN, IMPLIED OR STATUTORY, WITH REGARD TO THE PLATFORM AND ANY COMPONENTS THEREOF, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NEITHER SA NOR ITS LICENSORS WARRANT OR REPRESENT THAT THE PLATFORM OR ACCESS TO THE PLATFORM WILL BE ERROR-FREE, UNINTERRUPTED OR SECURE. OPERATION OF THE PLATFORM MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF SA’S AND ITS LICENSORS’ CONTROL.
8. Limitation of Liability
8.1 DISCLAIMER. Under no circumstances shall EITHER PARTY be liable to THE OTHER for any indirect, incidental, special, exemplary, punitive, or consequential damages in connection with, or relating to, any Agreement, however caused, whether based in contract, tort, warranty, or other legal theory, and even if SUCH PARTY has been informed in advance of the possibility of such damages or such damages could have been reasonably foreseen.
8.2 LIMITATION. in the event that EITHER PARTY IS held to be liable to THE OTHER for any cause, whether for negligence, tort, breach of contract, or for any other cause of action, SUCH PARTY’S aggregate liability for all claims arising from any Agreement shall not exceed the Fees paid by Customer hereunder during the immediately preceding SIX (6) months from when the claim for liability arose.
8.3 Exceptions. The parties agree that (i) the limitations of this Section 8 shall not limit the parties’ indemnification obligations pursuant to Section 6, or apply to either party’s breach of the confidentiality obligations set forth in Section 5 or the misuse or misappropriation of the Platform or any intellectual property rights of SA by Customer or any of its Users; and (ii) the limitations specified in Section 7 and Section 8 will survive and apply even if any limited remedy specified in any Agreement is found to have failed of its essential purpose. Customer acknowledges that SA has set the Fees and entered into any Agreement in reliance on the disclaimers of warranty and the limitations of liability set forth in any Agreement and that the same forms an essential basis of the bargain between the parties.
9. Term and Termination
9.1 Term. Any Agreement shall have a term (“Term”) that commences on the Effective Date and expires at the end of the Subscription Period as set forth on the Agreement.
9.2 Termination for Breach. Each party may terminate any Agreement upon thirty (30) days prior written notice to the other party if the other party materially breaches any Agreement and fails to correct the breach within such thirty (30) day period; provided, however, that SA may terminate any Agreement upon fifteen (15) days prior written notice in the event Customer fails to pay the Fees when due and fails to correct such non-payment within such fifteen (15) day period. Furthermore, each party may terminate any Agreement upon written notice if the other party ceases to conduct business (except for Force Majeure), becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to its liquidation or insolvency which is not dismissed within sixty (60) days, or makes an assignment for the benefit or its creditors. Notwithstanding anything herein to the contrary, in the event of termination under this Section 9.2 by SA, all amounts due under any Agreement shall be paid within ten (10) days of such termination.
9.3 Force Majeure. Neither party shall be liable to the other for failure or delay in the performance of a required obligation if such failure or delay is caused by riot, fire, natural disaster, utilities and communications failures, governmental acts or orders or restrictions, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the non performing party (“Force Majeure”), provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible.
9.4 Other Remedies. Termination will be in addition to and not in lieu of any equitable remedies available to the parties. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other arising from or incident to any suspension or termination of any Agreement by such party or any expiration hereof which complies with the terms of any Agreement, whether or not such party is aware of any such damage, loss or expenses.
9.5 Survival. Upon expiration or termination of any Agreement, all the provisions of this Agreement shall terminate, except that Sections 1, 3, 4, 5, 6, 7.2, 7.3, 8, 9 and 10 will survive termination or expiration of any Agreement for any reason according to their respective terms.
10.1 Governing Law. Any Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to its principles of conflicts of law where such principles would permit the application of the law of any other jurisdiction. Each party expressly consents to the jurisdiction of the state and Federal courts located in the Commonwealth of Massachusetts to resolve any dispute arising from any Agreement and waives any defense of inconvenient or improper forum. The parties acknowledge and agree that any Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, will not be governed by the Uniform Commercial Code of any state having jurisdiction and shall not be governed by the United Nations Convention on the International Sale of Goods.
10.2 Assignment. Neither party may assign or transfer any Agreement in whole or in part to any third party, except as part of a merger, acquisition, or other change in ownership. Any Agreement shall bind and inure to the benefit of the parties to any Agreement and their respective successors, permitted transferees, and permitted assigns. No provision of any Agreement shall be deemed to confer upon any person or entity any remedy, claim, liability, reimbursement, cause of action, or other right whatsoever.
10.3 Non-Solicit. Neither party shall hire or directly solicit for employment any employee of the other party actively involved in performing or receiving the Services or other services in connection with the development and use of the Platform during the Term and for six (6) months thereafter; provided, however, that either party may advertise or recruit generally in any media or outlet, and shall not be prohibited from hiring any individual or contractor who responds to such advertisement or recruitment effort.
10.4 Subcontractors. Notwithstanding anything herein to the contrary, SA may fulfill any of its obligations under any Agreement through third party service providers and suppliers, provided that SA shall remain responsible for such obligations to the same extent as if performed by SA.
10.5 Severability. If any provision of any Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term, and all other provisions shall continue in full force and effect.
10.6 Independent Contractors. SA and Customer are not partners or in a joint venture; neither party is the agent, representative or employee of the other party; and nothing in any Agreement will be construed to create any relationship between them other than an independent contractor relationship. Neither party will have any responsibility nor liability for the actions of the other party except as expressly provided herein. Neither party will have any right or authority to bind or obligate the other party in any manner or make any representation or warranty on behalf of the other party. Customer’s employees are not and shall not be deemed to be employees of SA. Customer shall be solely responsible for the payment of all compensation to its employees, including provisions for employment taxes, workers’ compensation and any similar taxes associated with employment of Customer’s personnel.
10.7 Notices. All notices and other legal communications permitted or required to be given under any Agreement shall be deemed to have been duly given if such notice or communication shall be in email with return receipt confirmation or in writing and sent by personal delivery or other commercial means of rapid delivery, postage or costs of transmission and delivery prepaid, to the parties at addresses specified herein until such time as either party hereto shall give the other party hereto written notice of a change of address in accordance with the provisions hereof.
10.8 Entire Agreement. Each party acknowledges and agrees that any Agreement is the complete statement of the agreement between the parties, and that any Agreement supersedes all prior proposals, understandings and arrangements, oral or written, between the parties relating to any Agreement.
10.9 Headings. The headings of the sections and paragraphs of any Agreement shall be for convenience only.