Terms and Conditions
Terms and conditions as of January 1, 2020
“Program” means the software specified on the Schedules in object code format only. “System” means the Program, all components provided by SiteSpect to the Customer as specified on the Schedules, all related licensed materials as specified on the Schedules, and all documentation (but specifically excluding source code) relating to any of the foregoing. “Visit” means a series of interactions that a unique visitor makes during a period of activity. A visit ends after the visitor clears their cookies or is inactive for 30 minutes. “Subsidiary” means any entity in which a party directly holds majority ownership or control and any entity under common control with a party. “Downtime” means the SiteSpect environment is unavailable for both Control Panel access and execution of campaigns for live end users, excluding periods of scheduled maintenance.
(a) (i) SiteSpect grants the Customer a nonexclusive, non-transferable license, subject to the termination provisions, to use the System solely for internal use by Customer and its Subsidiaries with websites owned or controlled by Customer or its Subsidiaries and (ii) Customer shall have the right to receive certain entitlements (“Entitlements”) and services (“Services”) as specified in the Schedules or the Purchase Order. (b) Customer shall be responsible for ensuring that each Subsidiary that uses the System or the Program shall comply with and is bound by the applicable terms. Each such Subsidiary shall be considered a customer of the Customer and not a customer or licensee of SiteSpect; no Subsidiary shall have any rights or cause of action directly against SiteSpect hereunder, provided, however, that SiteSpect reserves the right to enforce the terms against each such Subsidiary. Customer represents and warrants that it is not a SiteSpect Competitor or an entity or individual that will access or use the Program on behalf of a SiteSpect Competitor. (c) Customer acknowledges that the licenses granted do not provide Customer with title to or ownership of the System, the Program (or any copy thereof) or any component of any thereof, but only a right of limited use. All rights not expressly granted hereunder are reserved to SiteSpect. (d) SiteSpect reserves the right to monitor the Customer’s use of the Program to verify compliance. If the usage of the Program indicates a possible threat to the stability of the System, SiteSpect, at its sole discretion, may suspend the Customer’s ability to access the System until such threat no longer exists and shall make best efforts to notify the Customer.
All fees are specified in the Schedules. Unless otherwise specified Payment terms are Net 30 days from invoice and any additional fees or charges that occur during the term will be automatically applied to the renewal. Invoices for renewals will be sent 30 days prior to renewal date. The Customer agrees to pay all fees in accordance with the terms set forth in the Schedules and invoices.
(a) The Initial Term is as negotiated beginning on the Effective Date. Implementation and onboarding process will begin upon signature. Following the Initial Term, the contract shall automatically renew for successive twelve (12) month terms unless otherwise agreed. (b) SiteSpect may, by written notice to Customer, suspend the Customer’s access to the Service immediately on (i) a violation of the terms of the license granted pursuant to the Grant of License; Provision of Technical Services Section; (ii) a violation of provisions of the Confidentiality Section; or (iii) if Customer’s account becomes delinquent. (c) Either party may terminate immediately by written notice for any breach hereof by the other party that is not cured within 30 days after written notice of such breach. (e) Sections 2 (“Grant of License; Provision of Technical Services”); 3 (“Fees and Payment Terms”); 4 (“Term, Suspension and Termination”); 6 (“Limitation of Liability; Indemnification”); 7 (“Confidentiality and Customer Data”); 8 a. compliance with laws; and 8 d. governing law and jurisdiction will survive suspension of services, together with (a) any payment obligations of either party accruing hereunder prior to the expiration or termination, (b) any other provision that is necessary to interpret the respective rights and obligations of the parties hereunder, and (c) those other provisions as by their nature or effect are required or intended to be observed, kept or performed after the suspension of services.
SiteSpect represents and warrants that it will provide the Program and Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Program will perform substantially in accordance with the SiteSpect documentation. SiteSpect shall use reasonable commercial efforts to correct any failure of the unaltered Program to perform as so warranted; provided that the Program is being correctly used on equipment and software furnished by, or meeting the specifications of SiteSpect. If SiteSpect does not correct any failure hereunder, Customer’s sole remedy shall be the refund of the fees paid in accordance with the Schedules for the period in which the breach of warranty occurred. The warranty set forth in this section is in lieu of, and SiteSpect hereby expressly disclaims all other warranties, express or implied, including, but not limited to, non-infringement, merchantability and fitness for a particular purpose.
(a) (i) Except for (x) SiteSpect’s intellectual property indemnification payment obligations under this Section, (y) the customer’s breach of Section 3 Fees & Payment Terms, or (z) either party’s breach of Section Confidentiality hereof, the cumulative liability of each party to the other for all claims relating to the System, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the total amount of fees paid or payable during the most recently completed payment period. (ii) Except for (x) the customer’s breach of Section Grant of License or (y) either party’s breach of Section Confidentiality hereof, under no circumstances is either party, its suppliers, officers, directors, employees or agents liable for special, consequential, incidental, or indirect damages, even if informed of their possibility. (b) SiteSpect shall indemnify, defend and hold harmless Customer from and against any and all third-party losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys’ fees) assessed against Customer to the extent arising from third-party claims against Customer alleging that the Program infringes any U.S. patent, U.S. copyright, U.S. trademark or trade secret. In the event of any such claim, Customer shall provide prompt written notice of any such action to SiteSpect; SiteSpect shall take control of the defense and settlement of such claim (provided that no settlement of a claim involving a remedy other than the payment of money by SiteSpect shall be entered into without Customer’s consent, which consent shall not unreasonably be withheld); and Customer shall reasonably cooperate, at SiteSpect’s cost, in any investigation, defense or settlement of such claim This Section shall not apply to infringement claims to the extent arising from (1) use of the System not in accordance with the provisions hereof; (2) designs, specifications or modifications originated or requested by Customer, or (3) the combination of the Program or any part thereof with other equipment, software or products not supplied by SiteSpect if such infringement or misappropriation would not have occurred but for such combination. If any claim which SiteSpect is obligated to defend has occurred or, in SiteSpect’s reasonable opinion is likely to occur, SiteSpect shall, at its option: (i) procure for Customer the right to continue using the Program; (ii) replace the Program with non-infringing alternates or modify the Program so that it becomes non-infringing without materially diminishing its functionality; or (iii) reasonably failing the above, terminate the license hereunder and pay to the Customer any prepaid license fees, prorated to the termination date, upon the satisfaction of the negotiated termination provisions. This paragraph states the entire liability of SiteSpect and the sole and exclusive remedy of Customer with respect to infringement of any intellectual property rights by the Program or the System.
(a) Each party may have access to information of the other that is confidential (“Confidential Information”). Confidential Information shall include any information that is clearly identified as confidential at the time of disclosure and shall include, but not be limited to, the Program, Program documentation, the terms and pricing, and the results of any comparative or other benchmarking tests with respect to the Program, in each case regardless of whether such information is identified as Confidential; Confidential Information does not include information that is or becomes a part of the public domain through no act or omission by the recipient, was in the recipient’s lawful possession prior to the disclosure without any restriction on disclosure, is obtained by the recipient from a third party without a breach of such third party’s obligations of confidentiality, or is independently developed by the recipient without use of or reference to such Confidential Information. The obligations of confidentiality shall survive any termination for a period of three (3) years, provided that such obligations with respect to any Confidential Information which constitute a trade secret shall continue with respect to that information for so long as such Confidential Information remains a trade secret. (b) Each party agrees, unless required by law, not to make Confidential Information available in any form to any third party except to its employees or agents who are required to know to allow such party to exercise its rights, or to use the Confidential Information for any purpose other than in the performance of this Service. (c) SiteSpect agrees that it will have no right, title, or interest in or to Customer’s data, except that SiteSpect may: (i) capture and maintain statistical data in connection with SiteSpect's provision of Services to the Customer, provided that such data shall not contain any personally identifiable or private information of any customers or clients of the Customer; and (ii) compile aggregated statistics regarding the performance of the Program solely for SiteSpect’s internal use (e.g. to evaluate and improve the Program and Services).
(a) Customer shall comply with all applicable laws and regulations, including, without limitation, laws with respect to the privacy and transmission of information and data. (b) Unless otherwise agreed, these Terms and Conditions, together with Schedules and invoices, supersedes all prior written and oral understandings, between the parties with respect to its subject matter. If any provision of the Terms and Conditions is held to be invalid or unenforceable, the remaining provisions of this Terms and Conditions shall remain in full force and effect to the extent permitted by applicable law. The Terms and Conditions may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. (c) The Terms and Conditions may be freely assigned by either party to an acquirer of all or substantially all of its assets, or to a successor by merger, consolidation or other corporate reorganization. Any purported assignment or transfer in violation of this Section shall be void.
B1. PCI Compliant – SiteSpect is PCI Compliant as demonstrated by our 3rd Party QSA Audited Certificate. SiteSpect does not store any PII customer data (email address, credit card, name address, phone number) The Customer is responsible for ensuring its compliance with the Payment Card Industry (PCI) Data Security Standard (DSS). SiteSpect maintains and supports its Software and subsequent updates, upgrades, and bug fixes such that the Software is, and remains secure from those vulnerabilities as described in The Open Web Application Security Project’s (OWASP) “Top Ten Project” - see http://www.owasp.org; or The CWE/SANS Top 25 Programming Errors – see http://cwe.mitre.org/top25/ or http://www.sans.org/top25-programming errors/.
B2. GDPR - SiteSpect is compliant with GDPR.
B3. General Security - SiteSpect provides and maintains up-to-date security consistent with established standards and best practices with respect to (i) the services contracted, (ii) the applications or systems used to provide and maintain services, (iii) SiteSpect physical facilities, and (iv) SiteSpect’s computer infrastructure and networks, to prevent unauthorized internal or external access to Customer’s information or to the systems and/or applications that are used to store, process, or transmit Customer information. SiteSpect installs all patches, fixes, upgrades, updates and new versions of any security software it employs in a timely manner. SiteSpect maintains appropriate safeguards to restrict access to Customer information to only those employees, agents, contractors or service providers who require access to the information to deliver the services within the Terms and Conditions. For information disclosed in electronic form, SiteSpect maintains safeguards including electronic barriers (e.g. “firewalls” or similar barriers) and secure access controls.
B4. Breach Notification - SiteSpect complies with all applicable laws that require the notification of individuals in the event of unauthorized release of personally identifiable information or other event requiring notification. In the event of a breach requiring notification under applicable law, SiteSpect will notify Customer via telephone and e-mail within 24 hours of discovery.
B5. Annual Security Audit - Upon request, SiteSpect will share the results of its annual security audit with Company, but no more than once in any twelve month period.
B6. Information Transmission – Any electronic transmission or exchange of system and application data with Company shall be done via secure means using HTTPS or SFTP or equivalent.
B7. Information Re-Use - Any and all information exchanged shall be used expressly and solely for the purposes enumerated in this Terms and Conditions.
B8. Information Destruction - Following termination, the Customer will destroy all the Program documentation and all copies made of it within ten days and certify its compliance to SiteSpect in writing, and SiteSpect shall restore any network settings under its control to their state at the time prior to the delivery of the program and services under the Terms and Conditions. Upon request and within 30 days of suspension of the service SiteSpect shall erase, destroy, and render unrecoverable all Customer data.
C1. SiteSpect Standard Support - Standard support includes basic validation of initial website or site identity setup, and any troubleshooting or collaboration required to analyze, validate, and correct issues to restore the environment to operational state. If root cause is determined to be outside of SiteSpect’s control, this effort may be subject to Professional Services fees. (a) Technical support is available by email or telephone during normal business hours, or during after-hours at a special emergency support telephone number provided by SiteSpect. (b) Emergency technical support solely covers issues that affect Customer’s ability to effectively conduct business on its website. This includes instances of unavailability or performance degradation. (c) If Customer reports errors in the System, SiteSpect will make its best efforts to provide an initial response within 15 minutes of receipt acknowledging the report by Customer. Thereafter, SiteSpect will use diligent efforts to provide a response within 12 hours.
C2. Maintenance - For any non-emergency maintenance outage during which the System shall be unavailable, SiteSpect shall make its best efforts to provide the Customer with at least 48 hours advance notice.
C3. System Availability - The System shall be available twenty-four (24) hours per day, seven (7) days per week, with System availability of 99.99%. Should the cumulative Downtime during any 4 week period exceed 30 minutes, then SiteSpect shall refund to Customer a percentage of the Subscription Fee in proportion to the said Downtime. SiteSpect guarantees that during any time of unavailability, whether scheduled or unscheduled, the service shall be put into a safe bypass state.
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