These Terms of Service (the “TOS”) and the Agreement constitute the entire agreement between SpokeHub, Inc. (“SpokeHub”) and Customer on behalf of Customer’s self and any entity that Customer represents (“Customer”), as the user of SpokeHub’s proprietary software that functions as a platform on demand (“PoD”) and recipient of SpokeHub’s services, including without limitation, real-time feedback, augmented reality experiences, data on demand, push notification services, and hub sponsorship app opportunities (collectively referred to as the “Services” or the “PoD Services”). This TOS governs Customer’s use of the PoD Services provided by SpokeHub.
By activating the PoD Services, Customer acknowledges that Customer has read, acknowledges and agrees to these terms and conditions.
By subscribing to or using PoD Services, Customer agrees to these TOS. If Customer does not wish to accept these TOS, do not subscribe to or use any PoD Services or associated software.
When Customer accepts these TOS by signing up for, subscribing to, downloading and installing any SpokeHub software or using the SpokeHub Services, Customer represents and warrants that: (i) Customer possesses the legal right and capacity to enter into the agreement with SpokeHub and to perform all of Customer’s obligations thereunder; (ii) Customer is of legal age to enter into this Agreement; (iii) Customer has full power and authority to execute and deliver any agreement documents and to perform all of Customer’s obligations thereunder; (iv) if Customer accepts on behalf of an organization, Customer is hereby informing SpokeHub that Customer is authorized to bind that organization, and references to “Customer” in these TOS expressly includes without limitation the entity Customer represents; and (v) Customer shall be bound by the Agreement.
Any capitalized terms set forth below not otherwise defined have the meanings set forth in Section 19 (the “Definitions”) below.
Pursuant to these TOS, Customer is purchasing a subscription for the PoD Services set forth in Customer’s initial Order, and agreeing to use and pay for the same as set forth in these TOS for the entire period in the initial Order (the “Initial Term”), and any Renewal Terms, as applicable. Customer agrees to be financially responsible for Customer’s use of the Services, including the authorized or unauthorized use of Customer’s Account. In order to use the Services, Customer must have properly configured and working Internet service or broadband connection as set forth in Section 4 (IP Network Sufficiency), below. SpokeHub does not provide any access to the Internet. Upon purchasing a subscription for the PoD Services, SpokeHub shall provide to Customer a written plan of implementation in connection with the Services (“Implementation Plan”).
Upon signing up for the PoD Services and at subsequent times as requested by SpokeHub, Customer or Customer’s Authorized Users may be required to provide certain information, including but not limited to, name, address, phone number, and email address, in order to begin using the Services, activate features, or add or modify any Service (e.g., activating an Account or Authorized User) (“Registration Information”). Customer hereby grants to SpokeHub permission and a perpetual, worldwide, royalty-free, fully paid-up, non-exclusive, non-transferable right and license to copy, reproduce, store, record, disclose, transmit, display, access, and use Registration Information in connection with the activation, provision, support, improvement, administration, or management of Customer’s Services, as set forth in these TOS or otherwise permitted by Law. Customer represents and warrants that all Registration Information provided to SpokeHub by or on behalf of Customer or any Authorized User will be true, accurate, current, and complete, and that Customer will promptly confirm, update, or supplement Registration Information on file upon SpokeHub’s request or in the event that such Registration Information changes.
The Authorized User(s) that Customer designates as account administrators (“Account Administrator(s)”) of Customer’s Services will have rights to: (i) add up to five (5) Account Administrators; (ii) create new hubs in SpokeHub; (iii) edit existing hubs that Customer owns; (iv) export certain data reports from the Admin Portal. Customer is responsible for all acts and omissions of Customer’s Account Administrators, and any other Authorized Users, including without limitation any changes or purchases such individuals may make to Customer’s Account.
Customer shall have the right to purchase add-ons to its PoD Services to include additional augmented reality experiences, hub sponsorship app opportunities and push notifications (each an “Add-On” or collectively “Add-Ons”). All Add-Ons shall be set forth in the applicable Order. Account Administrators may purchase additional Add-Ons for the applicable Account at any time by placing an Order for the additional augmented reality experiences, hub sponsorship app opportunities and/or push notifications by contacting the SpokeHub’s designated customer success representative for that Account. Each Add-On added to Customer’s Account shall be subject to the terms of these TOS. The Term of the Add-Ons shall run conterminously with the Term of Customer’s initial purchase.
Customer’s license to the PoD Services is provided for the Initial Term and any subsequent Renewal Terms.
The Initial Term for all Service plans shall renew automatically for successive terms of the same length (each, a “Renewal Term”) without further action by or notice to Customer. If Customer wishes to cancel or terminate Customer’s Services, Customer shall notify its designated SpokeHub’s customer success representative by written notice of Customer’s intent not to renewal at least sixty (60) days prior to the end of the Initial Term or then-current Renewal Term. The Initial Term together with any Renewal Terms are collectively referred to as the “Term”.
Customer hereby grants to SpokeHub a non-exclusive license to use any and all of Customer’s logos and trademarks in association with the provision of any of the Services provided under these TOS and Agreement.
Customer agrees that Customer shall be responsible for all Access Credentials that Customer or any Authorized User uses with the PoD Services. Customer further agrees to ensure that all such Access Credentials: (i) shall be immediately changed in the event that Customer or Customer’s Authorized Users learn of or suspect that any Account Security Incident has occurred; (ii) shall not be transmitted or stored in any unsecure manner (including without limitation through any auto-storage, caching, “remember,” or auto-fill feature); (iii) shall be protected against any unauthorized access to or use of the Services; and (iv) shall be protected from theft or unauthorized access, use, or disclosure with at least a reasonable degree of care and diligence.
Customer has and shall retain sole responsibility for: (a) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (b) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (c) all access to and use of the Services and Implementation Plan directly or indirectly by or through the Customer’s or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
Customer acknowledges that some PoD Service security features may require activation or installation of software updates, and software may be de-activated or uninstalled. Customer agrees to promptly download and install all updates to software used in conjunction with the Services, and generally to ensure the activation and use of all features that are necessary or appropriate to protect the Accounts, users, Authorized Users, or Customer’s organization’s assets and operations. Customer acknowledges and agrees that if Customer decides not to install updates, this may result in the functionality of the Services to be diminished and unstable.
Customer acknowledges and agrees that Authorized Users that Customer designates as Account Administrators may have the ability to make purchases and enter into transactions on Customer’s behalf and/or to perform acts related to Customer’s Services, or Customer’s Account, including any ancillary services, that may significantly affect Customer or the operation of Customer’s Services; payment method(s); adding, removing, or modifying ancillary services; and/or modifying settings. Customer is responsible for any such changes made to Customer’s account. Customer agrees to maintain sole and exclusive control over Customer’s Services or Customer’s Account at all times and to ensure that all Account rights, permissions, and settings, and all use and Usage, are effectively managed as necessary to prevent any unauthorized access to, use of, or transaction or activity through or relating to Customer’s Services, including without limitation by implementing the following measures and practices:
Customer acknowledges and agrees that: (i) the PoD Services require a properly-configured, high performance, enterprise-grade broadband IP network and connection; and (ii) use of the Services with any lesser network, services, or connection may result in partial or complete unavailability, interruption, or underperformance of the Services or other services utilizing the same network, services, or connection. Accordingly, Customer agrees to provide and maintain, at Customer’s cost, an IP network, services, and connection meeting the foregoing standard and all equipment necessary for the Services to connect to and use such network, services, and connection. SpokeHub is not liable for any unavailability, interruption, or underperformance of the Services related to Customer’s IP network or connection.
IMPORTANT INFORMATION: If Customer’s IP network or connection fails, Customer’s Services will also fail. Customer’s Services may cease to function if there is a power cut or failure. These failures may be caused by reasons outside of SpokeHub’s control.
CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT DESIGNED, MANUFACTURED, INTENDED, OR RECOMMENDED FOR USE FOR ANY HIGH-RISK OR FAIL-SAFE PURPOSE OR ACTIVITY OR IN ANY ENVIRONMENT WHERE FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY COULD RESULT IN SUBSTANTIAL LIABILITY OR DAMAGES, PHYSICAL HARM OR PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR PROPERTY OR ENVIRONMENTAL DAMAGE. CUSTOMER REPRESENTS AND WARRANTS THAT CUSTOMER AND CUSTOMER’S AUTHORIZED USERS WILL NOT USE THE SERVICES FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT.
NEITHER CUSTOMER NOR ANY OF CUSTOMER’S AUTHORIZED USERS SHALL USE THE SERVICES FOR ANY ILLEGAL, FRAUDULENT, IMPROPER, OR ABUSIVE PURPOSE OR IN ANY WAY THAT INTERFERES WITH SPOKEHUB’S ABILITY TO PROVIDE HIGH QUALITY SERVICES TO OTHER CUSTOMERS, PREVENTS OR RESTRICTS OTHER CUSTOMERS FROM USING THE SERVICES, OR DAMAGES ANY OF SPOKEHUB’S OR OTHER CUSTOMERS’ PROPERTY.
A breach of obligations in this Section 4 constitutes a material breach of these TOS, such that SpokeHub may suspend the Services, terminate the Agreement immediately, or take any other action SpokeHub deems necessary to provide the Services to Customer and others; to protect Customer, the Services, and the SpokeHub networks; and to enforce the terms of this Section.
Neither Customer nor any Authorized User may use or allow use of the Services in any of the following ways:
Customer represents and warrants that all use of the Services, and Customer Account(s), will at all times comply with all applicable Laws, including but not limited to the rules, policies and regulations of the Federal Communications Commission (“FCC”).
Please note that all prices, Taxes, surcharges, and fees are subject to change at any time, except to the extent such charges are set by agreement between Customer and SpokeHub for a specified term. Customer is responsible for paying all charges for Customer’s Account, including but not limited to all Taxes, surcharges, and fees imposed on Customer’s Account as a result of Customer’s use of the Services. Customers with a past due balance on previous or multiple accounts will be charged the full balance, including but not limited to any fees or Taxes as defined in this TOS, any late fees, and fees for chargebacks, upon opening a new account or updating Customer’s credit card information on file.
SpokeHub offers several different plan options for the Services. Customer may change Customer’s Service plan at any time; provided, however, during the Term Customer may only upgrade to an existing Service plan. During the Term, Customer may not downgrade an existing Service plan to a Service plan with lower monthly fees. In addition, upon execution of the Agreement, if Customer chooses to pay SpokeHub on an annual basis in full in advance for all the Services for the entire Term, Customer shall be entitled to a fifteen percent (15%) discount of the Services. Otherwise Customer shall be obligated to pay SpokeHub all prices and fees set forth on Customer’s Order. Customer hereby authorizes SpokeHub to charge Customer’s credit card on file for all of the Services.
In exchange for the PoD Services, Customer shall pay SpokeHub the base recurring fees as set forth in the initial Order (the “Fee”) and all other applicable charges and Taxes. Any applicable monthly recurring Fees, charges, support charges, Taxes, and other fees are billed in full in advance on a monthly basis or annual basis, as applicable.
All fees for Services advertised or otherwise listed on the SpokeHub website are exclusive of any Taxes. Customer agrees to pay all Taxes and similar liabilities that may now or hereafter be levied on the Services and related software by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, as well as any administrative and recovery fees and charges levied on the Services by SpokeHub, whether or not mandated by law or regulation. Should SpokeHub pay or be required to pay such liabilities (including any Taxes that were due but not charged or previously collected), Customer agrees that SpokeHub may charge Customer’s credit card on file for such payments.
In the event that any transaction involving or resulting in an annually-incurred, or monthly-incurred, as applicable, Fee for Services that occurs subsequent to the beginning of an annual billing cycle, or monthly billing cycle, as applicable, SpokeHub may at that time bill Customer conterminously with each subsequent cycle. For example, in the event that Customer agrees to be billed on a monthly basis and Customer’s Initial Term commences on the 15th of the month, then Customer will be billed fees that will be due and payable on the 15th of each subsequent month.
Customer agrees and acknowledges that time is of the essence for payment of all Fees and charges. Any Fees or charges not paid when due shall incur interest at a rate of the lesser of: (i) fifteen percent (15%) per month; or (ii) the highest rate allowed by Law. SpokeHub’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as “Paid in Full,” “Accord and Satisfaction,” or similarly)) shall not waive, limit, or prejudice in any way SpokeHub’s rights to collect any amount due. SpokeHub may terminate the Services for non-payment if any Fees or charges are not paid within thirty (30) days of the due date without incurring any obligation or liability to Customer or any other person by reason of such termination.
All amounts payable to SpokeHub under this Agreement and these TOS shall be paid by Customer to SpokeHub in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
All Fees and charges are payable to SpokeHub by check, ACH, Wire or credit card or debit card. Customer agrees to be liable for a processing fee in the amount of the lesser of: (i) fifty dollars ($50.00); or (ii) the highest amount allowed by Law for any credit card chargeback or check or other payment returned for nonpayment.
When Customer subscribes to Services, Customer will provide SpokeHub a payment method, such as a valid credit card, and authorize SpokeHub to collect from the payment method provided. Any authorization to charge a provided credit card will remain valid until thirty (30) days after Customer withdraws the authorization, or immediately upon provision of a replacement valid credit card. Upon termination of this Agreement, SpokeHub will charge Customer any Fees and any other outstanding charges and disconnect Customer’s Service. Customer agrees to advise and notify SpokeHub of any changes to Customer’s payment method, such as credit card account number or expiration date changes. If the credit card or other payment method on Customer’s Account is declined or fails for any reason, SpokeHub will use reasonable efforts to contact Customer and advise Customer of the failed billing attempts. Notwithstanding the foregoing, SpokeHub reserves the right to disconnect Customer’s Service and terminate Customer’s Account if Customer’s payment method is declined or fails for any reason, or if Customer withdraws authorization to charge a valid credit card and does not provide an alternative payment method, and SpokeHub reserves the right to continue to attempt charging Customer’s credit card for any outstanding Service charges and additional fees and pursue any other legal remedies available to SpokeHub.
Customer will waive the right to dispute any billed amount if Customer does not dispute such amount within thirty (30) days of the date of its billing. If Customer fails to provide a written statement explaining in reasonable detail Customer’s reasons for disputing the charge within such time period, Customer hereby irrevocably waives any objection and further recourse with regard to such charges. In the event that Customer timely disputes a billed amount and SpokeHub confirms that Customer was over-billed, SpokeHub shall credit the applicable Account in the amount of the over-billing (“Billing Credits”). Billing Credits shall be SpokeHub’s sole and exclusive obligation and Customer’s sole and exclusive remedy with respect to any erroneous billing.
Notwithstanding the foregoing, if Customer requests that Customer’s bank or credit card company perform a chargeback without first contacting SpokeHub to dispute the charge, and SpokeHub subsequently determines that the charges at issue are not erroneous, SpokeHub reserves the right to terminate Customer’s Account immediately and take any available legal action.
Customer is solely liable for any transactions or usage on Customer’s Account, whether by Customer, any Authorized User, or any other user of Customer’s Services, and in no event shall SpokeHub be liable for any unauthorized use of Customer’s Account.
SpokeHub and Customer hereby acknowledges and agrees that: (i) SpokeHub’s role with respect to any personal identifiable information that Customer or Customer’s Authorized Users transmit, receive, and/or store through the Services (“Registration Information”) is governed by the SpokeHub Privacy Notice at http://spokehub.co/privacy-policy/.
Customer acknowledges and agrees that: (i) neither SpokeHub nor any SpokeHub affiliated entity shall have any obligation to store, retain, back-up, or ensure the availability of any stored Customer Registration Information or Account Data; (ii) to the extent that Customer wishes to retain any Customer Registration Information or Account Data or other information relating to Customer’s Services or Customer’s Account(s), Customer shall ensure that such information is downloaded, saved, and/or backed-up outside of Customer’s Services or Account(s), as necessary or appropriate for Customer and/or the Authorized Users’ purposes; (iii) Customer shall not rely on Customer’s Services or Account(s) as a repository for or means by which to retain, store, or back-up Customer Registration Information or Account Data or any other data, information, or materials; (iv) SpokeHub may delete or purge any and all copies and versions of any stored Customer Registration Information or Account Data or other data at any time, without notice, including without limitation after Customer deletes any such information from an Account or after termination of the Agreement or closure of an Account; and (v) SpokeHub may, in its sole discretion and option and without notice, implement reasonable limits as to the size or duration of storage of Customer Registration Information or Account Data.
Customer and Customer’s Authorized Users can obtain any stored Customer Registration Information or Account Data with Customer’s Access Credentials in the relevant SpokeHub Admin Portal. Customer acknowledges and agrees that, notwithstanding anything to the contrary in these TOS, neither SpokeHub nor any SpokeHub affiliates: (i) shall have no obligation to access, view, or review any stored Customer Registration Information or to perform any task or undertake any role that would entail or require any of the foregoing; and (ii) may not have access to stored Customer Registration Information or Account Data, or such access may be incomplete, limited, restricted, or subject to certain conditions. SpokeHub, and its affiliates, shall have the right to limit, restrict, condition, or eliminate the ability of any party to access any stored Customer Registration Information or Account Data in its sole discretion and without notice.
Customer acknowledges and agrees that the Services do not include the performance of any of the following tasks or work by SpokeHub, and in no event shall SpokeHub be obligated under these TOS to perform any of the following tasks or work: (i) the investigation, access, correction, alteration, gathering, compilation, review, verification, or production of any Account Data, or any other records, documents, information, or evidence related to Customer or Customer’s Services or transmitted, received, or stored through an Account; (ii) the provision of legal or other counsel; or (iii) the provision of assistance, cooperation, or information beyond that which is directly and specifically related to SpokeHub’s fulfillment of its obligations under these TOS or pursuant to applicable Law.
For the avoidance of doubt, except as provided herein or required by Law, SpokeHub shall not be obligated to: (i) determine, prove, or disprove any fact or claim; (ii) pursue or defend against any claim, allegation, action, lawsuit, demand, or proceeding; (iii) substantiate any party’s compliance with any Law or Legal Process; (iv) respond to or comply with any request or demand; (v) identify any party; or (vi) conduct any surveillance.
Customer acknowledges and agrees that any stored Customer Registration Information or Account Data, or other information or reports that Customer exports will not be under SpokeHub’s control and will not be subject to or protected by SpokeHub’s security controls. Customer and any Customer’s Authorized Users, as applicable, shall comply with all applicable Law relating to the use, disclosure, access, or export of data from Customer’s Account(s).
Customer acknowledges and agrees that SpokeHub shall be the sole and exclusive owner of all data generated from Customer’s Services and all Account Data.
Customer hereby releases, discharges, and holds harmless SpokeHub its agents, representatives, officers, directors, and affiliates from and against any and all liability relating to or arising from its acts or omissions in accordance with this Section 7.
The Account owner shall be the valid legal entity (e.g., corporation, partnership, individual) that signs up for the Services with SpokeHub. If no legal entity is provided upon sign-up, the Account owner shall be the owner of the credit card used to open the Account. Subsequent changes to ownership must be supported by appropriate legal documentation.
Customer agrees that in no event shall SpokeHub be obligated to – and in no event shall Customer request that SpokeHub – participate in or act as the arbiter, adjudicator, or intermediary with respect to any claim or dispute relating to the ownership or control of, or rights relating to, Customer’s Services, any Account, or any Account Data or other information related to an Account or Customer’s Services (“Account Ownership Disputes”). In the event of any Account Ownership Dispute, SpokeHub is authorized to take any course of action that it deems to be appropriate, including without limitation declining to take any action.
Customer agrees to release, discharge, and hold harmless SpokeHub, its agents, representatives, officers, directors, and affiliates, from and against any and all liability relating to or arising from SpokeHub’s acts or omissions related to any Account Ownership Dispute or in seeking to comply with any Law or any Legal Process.
In the event that Customer has a customer support issue, Customer may contact SpokeHub’s customer success representative (“Customer Success”). Upon full execution of the Agreement, SpokeHub shall provide contact information for Customer Success. Any Authorized User contacting Customer Success may be required to provide certain verifying information to receive support from Customer Success, and Customer Success may limit the level of support that it will provide or scope of information that it will disclose or confirm to any inquiring Authorized User based on the scope of his or her Account rights or permissions.
During the initial thirty (30) days of the Initial Term, SpokeHub will make basic Customer Success services available to its customers by attempting to resolve technical issues with and answer questions regarding the implementation or use of the Services. If Customer desires Customer Success service after the initial thirty (30) days of the Initial Term, Customer shall pay SpokeHub a support fee. Basic Customer Success services shall not include, and SpokeHub shall have no obligation hereunder to perform, any of the following: (i) on-site support; (ii) implementation of any software; (iii) dedicated representative support; or (iv) network support.
From time to time, SpokeHub may send its customers surveys, comment cards, customer satisfaction forms, or other requests to provide feedback. Customer hereby grants SpokeHub, and its affiliates, a perpetual, unlimited, worldwide fully-paid up, royalty free license to use all feedback, answers, ideas, comments, or other information Customer provides to SpokeHub in response to any such requests.
In its marketing, advertising, offering, and sale of the PoD Services, SpokeHub attempts to describe the Services as accurately as possible. Nevertheless, SpokeHub does not warrant that any such information about Services, including related software, is accurate, complete, reliable, current, or error-free. It is possible that such may be inaccurate or out-of-date, such as listing erroneous or out-of-date pricing information or referring to services or features that are no longer available. Such information is provided only for customers’ convenience and is not part of these TOS, any agreement for the purchase of Services, or any other agreement with SpokeHub.
Customer acknowledges and agrees that SpokeHub may send, or have sent, to Customer, Account Administrators, contacts, and/or Authorized Users certain Service Communications, and Marketing Communications. Customer hereby consents to SpokeHub’s distribution of Service Communications and Marketing Communications in accordance with this Section 10(B). In the event that Customer or any Authorized User provides SpokeHub with any feedback, answers, ideas, comments, or other information in connection with any of the foregoing communications, Customer hereby grants SpokeHub a perpetual, irrevocable, unlimited, worldwide, fully-paid up, royalty free right and license to use the same.
SpokeHub grants Customer and Customer’s Authorized Users a limited, personal, revocable, non-exclusive, non-sub-licensable, non-assignable, non-transferable, non-resellable license to use the software provided in conjunction with the PoD Services during the Term in strict accordance with the Agreement and these TOS and solely for Customer’s own internal business use. In the event of any expiration or termination of Customer’s subscription to the PoD Services pursuant to the Agreement and these TOS, all license rights granted herein or in connection with any software provided under these TOS, immediately terminates. Any IP Rights in the Services or in any technology used in the provision thereof are and shall remain the sole and exclusive property of SpokeHub. All rights not expressly granted herein are reserved and retained by SpokeHub, and no IP Rights or other rights or licenses are granted, transferred, or assigned to Customer, any Authorized User, or any other party whether expressly, by implication, estoppel, or otherwise. Customer may not use or disclose any Intellectual Property or IP Rights in the Services or any software related to the same except as expressly contemplated by this Section 11.
Customer acknowledges and agrees that all rights, title and interest in and to all Intellectual Property in the PoD Services, any software used in conjunction with the Services, and any materials provided in connection with the Services, including the Implementation Plan, are owned solely and exclusively by SpokeHub. Except as expressly provided herein, the limited license granted to Customer under the Services does not convey any ownership or other rights, express or implied, in the Services, any materials provided in connection with the Services, including the Implementation Plan, or in any Intellectual Property.
Customer represents, warrants, covenants and agrees that Customer shall not disclose or use any of the Intellectual Property in the Services, any software used in conjunction with the Services, or any marketing materials for any purpose following termination of the Services or the limited license granted thereunder to use the Services. Customer further represents and warrants that neither Customer nor any Authorized User shall reverse engineer, disassemble or decompile any prototypes, software or other tangible object which embody SpokeHub’s Intellectual Property.
SpokeHub, in its sole discretion, reserves the right to add, remove, or modify features or functions, and to provide fixes, updates and upgrades to the PoD Services without notification to Customer. Customer acknowledges and agrees that SpokeHub has no obligation to make available to Customer any subsequent versions of the Services; provided, however, subject to these TOS, SpokeHub shall make available to Customer any such features, functions, fixes, updates and upgrades and subsequent versions of the Services that SpokeHub makes generally available at no additional charge to customers who subscribe to the same edition of the Services purchased by Customer. In addition, Customer and SpokeHub acknowledges that no third-party has any obligation whatsoever to furnish maintenance or support services with respect to the Services and that SpokeHub is solely responsible for the provision of maintenance and support as provided in these TOS and to the extent such maintenance and support is required under applicable Law.
Customer acknowledges and agrees that SpokeHub may identify Customer as a user of the Services in its business deals, press releases, marketing materials, electronic, printed, and broadcast advertising, newsletters, mailings, tradeshows, other promotional materials, on SpokeHub’s website, or any other third-party website where SpokeHub or its designated agents or affiliates may promote the Services. Customer hereby grants SpokeHub, its agents, representatives, officers, directors, and affiliates, an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Customer’s name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.
SpokeHub reserves the right, in its sole discretion, to make any changes to the Services and Implementation Plan that it deems necessary or useful to: (i) maintain or enhance (a) the quality or delivery of SpokeHub’s services to its customers, (b) the competitive strength of or market for SpokeHub’s services, or (c) the Services’ cost efficiency or performance; or (ii) to comply with applicable Law (collectively, the “Changes”). The Changes may be made without prior notice to Customer; provided however, Customer can obtain an updated Implementation Plan from the Admin Portal or from its Customer Success representative.
SpokeHub may change the terms of these TOS from time to time without prior notice to Customer. SpokeHub generally provides written notice of changes to Customer’s account, including these TOS and any other legal agreements, via email, electronic notice on SpokeHub’s website (www.spokehub.co), or the Admin Portal, or on Customer’s billing statements, or as otherwise required by applicable Law. Customer agrees to carefully read and review each such e-mail notice, electronic notice, and billing statement from SpokeHub fully regarding any such notices of changes to Customer’s Account.
Subject to applicable Law, the modified terms shall replace and supersede all previously agreed to electronic and written terms, as well as any prior versions of these TOS, and become binding on Customer on the later of the date they are posted on SpokeHub’s website (www.spokehub.co). Customer agrees that Customer is solely responsible for: (i) making sure that Customer registered email account is current and functional: (ii) checking Customer’s registered email account regularly; (iii) checking SpokeHub’s website and the Admin Portal regularly; and (iv) making sure that SpokeHub communications are not blocked or rendered undeliverable by Customer, Customer’s computer, any software installed on Customer’s computer, Customer’s internet service provider, or for any other reason. Continued use of the PoD Services shall constitute Customer’s acceptance of the modified terms.
Customer acknowledges and agrees that in the event that SpokeHub offers or provides Customer discounts or promotional services for Customer’s Services or an Account, SpokeHub may terminate or modify the scope of such promotional services at any time without notice, unless SpokeHub specifically agrees otherwise in writing in connection with its provision of the discounts or promotional services.
Upon any expiration or termination of the Agreement, and these TOS, except as expressly otherwise provided in the Agreement and in these TOS: (i) all rights, licenses, and authorizations granted by either party to the other hereunder will immediately terminate; (ii) Customer shall immediately cease use of the Services or Implementation Plan; (iii) SpokeHub may disable all Customer and Authorized User access to the Admin Portal and Services; and (iv) Customer shall immediately pay SpokeHub all previously-accrued but not yet paid Fees and other charges, as applicable.
The provisions set forth in the following sections of these TOS, and any other right or obligation of the parties in the Agreement (and these TOS) that, by its nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement (and these TOS): Section 4, Section 13, Section 14, Section 15, Section 16, and Section 17.
Customer acknowledges and agrees that SpokeHub may at any time, and without additional notice to Customer, terminate, modify, suspend, disconnect, discontinue, or block access to some or all of the features of the PoD Services if:
Upon any termination or suspension of Customer’s Account, SpokeHub may immediately deactivate or delete Customer’s Account and all related information and files in Customer’s Account and/or restrict any further access to such files, information, or the Services.
SpokeHub shall not be liable to Customer or any third party for any reason for terminating or suspending Customer’s use or access to the Services.
If Customer or SpokeHub terminates or suspends Customer’s right to use the Services, Customer shall not be entitled to any refund or proration of any pre-paid amounts, or other amounts paid to SpokeHub prior to the termination or suspension date.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, INCLUDING THE IMPLEMENTATION PLAN, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND SPOKEHUB MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICES, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. SPECIFICALLY AND WITHOUT LIMITING THE FOREGOING IN ANY WAY, SPOKEHUB SPECIFICALLY DISCLAIMS ANY WARRANTY: (i) THAT ANY PRODUCT WILL MEET ANY PARTICULAR REQUIREMENTS; (ii) THAT ANY SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR THAT ANY DEFECTS IN ANY SERVICE WILL BE CORRECTED; OR (iii) RELATING TO THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF CUSTOMER’S SERVICES, ANY ACCOUNT, OR ANY PRODUCT OR ANY CUSTOMER COMMUNICATIONS, DATA, INFORMATION, OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF ANY OF THE FOREGOING. THE PARTIES AGREE, AND IT IS THEIR INTENTION, THAT IN NO EVENT SHALL ANY WARRANTY PROVIDED BY LAW APPLY UNLESS REQUIRED TO APPLY BY APPLICABLE STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. TO THE EXTENT THAT SPOKEHUB CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
IN NO EVENT WILL SPOKEHUB OR ANY OF ITS LICENSORS, REPRESENTATIVES, AGENTS, DIRECTORS, OFFICERS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT (OR THESE TOS) OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (d) COST OF REPLACEMENT GOODS OR SERVICES, (e) LOSS OF GOODWILL OR REPUTATION, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SPOKEHUB WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF SPOKEHUB ARISING OUT OF OR RELATED TO THIS AGREEMENT (AND THESE TOS), WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE SERVICE FEES PAYABLE HEREUNDER DURING THE ONE (1) MONTH IMMEDIATELY PRIOR TO THE DATE OF THE EVENT(S) GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 15(B):
To the maximum extent permitted by applicable Law, Customer shall indemnify and hold harmless, individually and collectively, SpokeHub, its affiliates, agents, officers, directors, managers, employees, and shareholders (collectively, the “Indemnified Parties“) from and against any and all liability, claims, losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys’ fees and dispute resolution expenses) arising from or related to: (i) the use of or reliance upon the Services by Customer, any Authorized User, or any third party acting with Customer’s permission, knowledge, authority or direction; (ii) allegations of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under the Agreement (and these TOS); (iii) a breach of these TOS by Customer, or any Authorized User; (iv) any negligent acts, omissions to act or willful misconduct by Customer or any third party acting with Customer’s permission, knowledge, authority or direction; (v) the inability to use the Services or failure of the Services for any reason; (vi) the use of the Services in connection with a violation of any applicable Law, code, regulation, or ordinance; or (vii) the misappropriation, breach, violation, or infringement of any right, title or interest of any third party, including but not limited to, contractual rights, Intellectual Property rights, rights of privacy, and rights of publicity and personality.
The parties’ relationship under these TOS is that of independent contractors. Nothing in these TOS shall constitute or create any employment, partnership, association, joint venture, agency, or fiduciary relationship between the parties. Neither party shall have the authority to bind or obligate the other Party in any manner whatsoever.
Notices to Customer shall be effective on the date sent to Customer’s registered electronic mail address when sent by email or, at SpokeHub’s option, three (3) days following the date deposited in regular United States Mail, postage prepaid, and addressed to Customer’s current address on Customer’s Account. Customer is responsible for notifying SpokeHub in writing of any changes in Customer’s contact information or address through Customer’s Account settings page.
Written notice to SpokeHub shall be effective when directed to SpokeHub’s legal department and received at SpokeHub’s then-current address as posted on SpokeHub’s website as www.spokehub.co. All notices from Customer to SpokeHub must be made in writing.
Excluding either party’s payment obligations under the Agreement, neither party shall be responsible or liable for any failure to perform or delay in performing to the extent resulting from any event or circumstance that is beyond that party’s reasonable control, including without limitation any act of God; national emergency; riot; war; terrorism; governmental act or direction; Laws; breach, delay, act, or omission of any supplier, carrier, contractor, subcontractor, or business partner; failure, outage, or unavailability of third party network(s) or system(s); power outage or reduction; rebellion; revolution; insurrection; criminal acts of third parties, earthquake; storm; hurricane; flood, fire, or other natural disaster; or strike or labor disturbance (each a “Force Majeure”). In the event that a Force Majeure prevents a party’s performance for more than forty-five (45) consecutive days, either party may terminate the particular agreement document(s) impacted.
Nothing in these TOS, express or implied, is intended to or shall confer upon any person or entity other than the parties themselves any right, benefit, claim, or remedy as a third party beneficiary or by any other nature whatsoever under or by reason of these TOS.
These TOS and Customer’s use of the Services shall be governed by and construed under the laws of the State of North Carolina and the United States without regard to its conflict of law rules.
In the event of any dispute, claim, question, or disagreement between Customer and SpokeHub (“Dispute“), Customer and SpokeHub shall first use reasonable best efforts to settle the dispute, claim, question, or disagreement. To this end, Customer and an authorized member of SpokeHub’s legal department (or other representative of SpokeHub designated by the legal department) shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Neither Customer nor SpokeHub shall file or pursue any Disputes in any court, administrative, arbitral, or other adjudicative body prior to engaging in such consultations and negotiations.
Notwithstanding the adjudication requirement above, for any Disputes involving ten thousand dollars ($10,000) or less, either party may choose to resolve such Dispute through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference). Such arbitration shall be conducted through an established alternative dispute resolution provider mutually agreed upon by the parties, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision shall be final and legally binding.
In the event of any litigation (including arbitration) between Customer and SpokeHub, the non-prevailing party shall reimburse the prevailing party for all reasonable attorneys’ fees, costs, and expenses relating to the Dispute; provided however, if SpokeHub has to file a lawsuit against Customer in efforts to collect Fees or other charges owed to SpokeHub for Services rendered, Customer shall be obligated to pay for all of SpokeHub’s attorneys’ fees, court costs and other expenses incurred by SpokeHub for such lawsuit.
Customer agrees that any Disputes shall be adjudicated in the state and federal courts of the State of North Carolina, U.S.A. Venue for any Disputes shall be the court of proper jurisdiction in the City and County of Durham, North Carolina. Customer agrees to submit to the exclusive jurisdiction of such courts with respect to any Disputes and agrees not to bring any Disputes in any other court or adjudicative body. Customer hereby consents to venue and personal jurisdiction in such courts with respect to such Disputes and irrevocably waives any right that Customer may have to assert that such forum is not convenient or that any such court lacks jurisdiction.
Customer agrees that any breach of SpokeHub’s IP Rights will cause SpokeHub irreparable harm for which monetary damages will be inadequate and SpokeHub may, in addition to other remedies available at Law or in equity, obtain an injunction, specific performance, or any other relief that may be available from any court without the requirement to post a bond or other security, or to prove damages, or monetary damages are not an adequate remedy, or similar requirement.
Any actions, lawsuits, or proceedings shall be conducted solely on an individual basis and the parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or in any other proceeding in which any party acts or proposes to act in a representative capacity.
In no event shall any failure or delay by SpokeHub to: (i) assert or exercise any right; (ii) demand fulfillment or performance of any obligation; or (iii) avail itself of any remedy under these TOS, in whole or in part, be deemed a waiver of any right or remedy under these TOS on such occasion or any other occasion. Except as otherwise expressly stated in these TOS or an agreement document duly executed by both SpokeHub and Customer, all rights and remedies stated in these TOS are cumulative and in addition to any other rights and remedies available under these TOS, any agreement document, at Law, or in equity.
These TOS, including the documents incorporated herein, constitutes the entire agreement between Customer and SpokeHub with respect to the PoD Services and supersedes all prior or contemporaneous understandings regarding such subject matter.
The failure of SpokeHub to exercise or enforce any right or provision of these TOS shall not constitute a waiver of such right or any other provision.
The section titles in these TOS are for convenience only and have no legal or contractual effect.
This electronic document and any other electronic documents, policies, and guidelines incorporated herein will be: (i) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable as a signed writing as against the parties subject to the electronic documents; and (iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation, or administrative proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
Either party may assign these TOS and any of its rights and obligations hereunder with the other party’s prior written consent, except that SpokeHub may, without notice to Customer, assign the TOS and all of SpokeHub’s rights and obligations hereunder to: (i) an affiliate; or (ii) SpokeHub’s successor or surviving entity in connection with a merger, acquisition, consolidation, sale of all or substantially all of its assets, or the transfer or disposition of more than fifty percent (50%) of a SpokeHub’s voting control or assets. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, these TOS shall be binding on and inure to the benefit of the parties, their successors, permitted assigns, and legal representatives.
If any provision or portion of these TOS is determined to be invalid, unlawful, illegal, void, or unenforceable, in whole or in part, then (i) that provision or portion shall be construed in such a manner as to render the provision or portion enforceable and, to the extent possible, to reflect the parties’ original intent and (ii) the remaining provisions and portions of the Agreement shall remain in full force and effect.
The following provisions of these TOS will survive termination or expiration of these TOS for the maximum term allowed by Law: (i) Customer’s payment obligations; (ii) terms relating to intellectual property ownership, Customer representations, confidentiality, storage of user information, publicity rights, non-disparagement, indemnification, warranty disclaimers, limitations of liability, dispute resolution and arbitration, and choice of law; and (iii) all provisions that are intended by their nature to survive termination of this Agreement.
The parties confirm that it is their express wish that the Agreement and these TOS, as well as any other documents relation to these TOS, including notices, schedules and authorizations, have been and shall be drawn up in the English language.
All dollar amounts are expressed in United States dollars or as agreed by the parties in writing.
All capitalized terms used in these TOS shall be defined in accordance with the following definitions or as otherwise defined herein.