SPEAR Terms of Use

This End User License Agreement (the “EULA”), including al documents that may be linked or connected herein  is a legal agreement between you (“you”)and SPEAR Human Performance, Inc., a Delaware corporation having its principal place of business at 1425 Village Square Blvd #2, Tallahassee, FL 32312, USA (“SPEAR”).

 

In consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows.

 

1. License Grant.  Subject to the terms and conditions of this Agreement and each applicable an order form specifying the service(s) to be provided hereunder that is executed by the parties, including any addenda and supplements thereto (each an “Order”), SPEAR hereby grants Licensee a non-exclusive, limited, non-transferable license to access and use (a) the SPEAR  platform and related services and software, including any documentation, user manuals and other specifications or materials related thereto (the “Platform”), and (b) the SPEAR application programming interfaces that enable Licensee or third party applications which Licensee controls to interface, interoperate or interconnect with the Platform, for a period commencing on the Effective Date and continuing for the duration as set forth on the applicable Order (the “Contract Period”). Upon expiration of this Agreement, you must cease use of the Platform.

2. Restrictions.  Licensee shall not: (i) access, use, reproduce or distribute the Platform and its Software elements in any manner inconsistent with the license grants set forth in Section 1 or Section 5; (ii) modify, translate, or make any derivative work of the software elements of the Platform or any parts thereof; (iii) decompile, disassemble, reverse engineer or otherwise attempt to derive, reconstruct, discover or use the source code, algorithms, programming structure, architecture, processes, methods or techniques used in or by the Platform for any purpose; (iv) disclose, license, sublicense, resell, rent, provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use or commercially exploit the Platform to or for the benefit of any third party; or (v) remove any Platform identification, copyright or other proprietary notice from the Platform and its software elements. 

3. Technical Requirements. Licensee will need certain equipment, software, and Internet access to be able to access the Hosted Services. Acquiring, installing, maintaining, and operating equipment and Internet access is solely Licensee’s responsibility. Licensee is responsible for ensuring that such equipment is compatible with the Services and complies with all configurations and specifications provided by SPEAR, which may be amended from time to time. SPEAR neither represents nor warrants that the Hosted Services will be accessible through all web browser releases or used with all operating systems.

4. Platform Delivery. SPEAR may provide the Platform from any facility and may from time to time transfer any or all of the Platform being provided hereunder to any new facility(ies) or relocate the personnel, equipment and other resources used in providing those Platform. SPEAR may, in its sole discretion, make any changes to any Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of SPEAR’s products or Platform to its Licensees, (b) the competitive strength of, or market for, SPEAR’s products or Platform, (c) such Platform’ cost efficiency or performance, or (ii) to comply with applicable law.

5. Prohibited Uses. Licensee will not and will not permit others in using the Platform to: (a) defame, abuse, harass, stalk, threaten any individual or infringe or otherwise violate the legal rights (such as rights of privacy, publicity and intellectual property) of others or SPEAR; (b) distribute any harmful, inappropriate, profane, vulgar, infringing, obscene, false, fraudulent, tortuous, indecent, unlawful, or otherwise objectionable material or information (including any unsolicited commercial communications); (c) engage in or encourage any conduct that could constitute a criminal offense or give rise to civil liability for SPEAR; (d) misrepresent or in any other way falsely identify Licensee’s identity or affiliation, including through impersonation or altering any technical information in communications using the Platform; (e) transmit or upload any material through the Platform that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing SPEAR’s, or any other person’s or entity’s, network, computer system, or other equipment; (f) interfere with or disrupt the Platform, networks or servers connected to the SPEAR systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering any of the information submitted through the Platform; (g) attempt to gain unauthorized access to the Platform, other SPEAR customers’ computer systems or networks using the Platform through any means; or (h) interfere with another person’s use of the Platform. SPEAR has no obligation to monitor Licensee’s use of the Platform. However, SPEAR reserves the right (but has no obligation) at all times to monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable law, regulation, legal process or governmental request. 

6. Removal of Content. If SPEAR is required by any third-party rights holder to remove any content or information, or receives information that any content or information provided to Licensee may violate applicable law or third-party rights, SPEAR may remove such content or information and/or notify Licensee that it must discontinue all use of such content or information, and to the extent not prohibited by law, Licensee will do so and promptly remove such content or information from its systems.

7. Fees.

          a) Licensee is obligated to pay SPEAR fees, charges and other amounts specified in the applicable Order for the use of the Platform as permitted hereunder by Licensee during the Contract Period.   Unless otherwise set forth in the applicable Order, applicable fees will be invoiced to Licensee monthly in advance. 

          b)  All fees, charges, and other amounts are payable in United States dollars and, except as expressly otherwise provided herein, are nonrefundable and non-cancelable. Licensee will pay all invoices net 30 daysfrom the date of the SPEAR’s invoice. 

          c) Licensee shall be responsible for taxes levied on any transaction under this Agreement, including all federal, state, and local taxes, levies, and assessments, excluding any taxes based on SPEAR’s net income, employees, or property.

          d) Fees and expenses due from Licensee under this Agreement may not be withheld or offset by Licensee against other amounts for any reason.

   8.  Ownership.  

          a) Software. As between the parties, SPEAR reserves and retains the sole and exclusive ownership of and all right, title, and interest in and to the Platform and SPEAR’s other Confidential Information (as defined below), all intellectual property, including, without limitation, trade secrets (as defined under applicable law) and other proprietary rights relating to the Software and any modifications of any of the foregoing (collectively, the “SPEAR IP”).  Licensee acknowledges and agrees that nothing contained herein will be construed as granting Licensee or any third party any intellectual property rights or other right, title, or interest in or to any of the Platform or SPEAR's Confidential Information, except for the limited rights and licenses expressly granted to Licensee pursuant to this Agreement. 

          b)  Ownership of Licensee Data. Licensee has, reserves and retains all right, title and interest in and to all data, information, materials and other content of any type processed by, for or on behalf of Licensee by or through the Platform, other than the Platform or any Platform usage data or information that is generated automatically upon executing the Platform without additional user input, and Licensee’s other Confidential Information (collectively, the “Licensee Data”), including the sole and exclusive ownership of all intellectual property rights relating thereto. Licensee grants to SPEAR and its subcontractors a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit, translate, and otherwise use and process Licensee Data as reasonably necessary or useful to perform and improve the Services and for the exercise of SPEAR’s rights under this Agreement. Licensee warrants to SPEAR that Licensee has the right to grant the foregoing license and provide Licensee Data to SPEAR in accordance with this Agreement.

          c) Blind Data. Licensee agrees that SPEAR may use Licensee Data to generate Blind Data, and that, notwithstanding anything to the contrary in this Agreement, all Blind Data will be owned solely by SPEAR and SPEAR may exploit Blind Data for any lawful purpose without any duty of accounting or compensation to Licensee. “Blind Data” means any of the following to the extent it has been de-identified so that it does not identify Licensee or any individual: (a) data, records, files, content, or information, in any form or format, acquired, collected, received, stored, or maintained by SPEAR from or on behalf of Licensee or otherwise in connection with this Agreement or the Platform (including Licensee Data); or (b) derived therefrom.

   9.  Confidentiality. 

           a)  Confidential Information. For purposes of this Agreement, “Confidential Information” means information that the Disclosing Party (as defined below) treats as confidential or proprietary or that reasonably should be considered confidential given the nature of the information and the circumstances of disclosure, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing.  Without limiting the foregoing: (i) the Platform is the Confidential Information of SPEAR; (ii) the Licensee Data is the Confidential Information of Licensee; and (iii) Confidential Information includes the terms and existence of this Agreement.  Confidential Information does not include information that the Receiving Party (as defined below) can demonstrate by documentation: (A) was already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information directly or indirectly from or on behalf of the Disclosing Party; (B) was or is independently developed by the Receiving Party without reference to, access to or use of any of the Disclosing Party's Confidential Information; (C) was or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of the Receiving Party or any of its employees, agents, contractors, consultants or advisors, including, without limitation, solely with respect to Licensee as the Receiving Party, its affiliates, officers, employees, consultants and legal advisors (collectively, “Representatives”); or (D) was received by the Receiving Party from a third party who was not, at the time, under any obligation to the Disclosing Party or any other Person to maintain the confidentiality of such information.

           b)  Confidentiality and Use. Each party acknowledges that in connection with this Agreement such party may gain access to Confidential Information of the other party (the “Disclosing Party”). As a condition to being provided with such Confidential Information, the party receiving the Confidential Information (the “Receiving Party”) agrees to:

                  i. not use the Disclosing Party's Confidential Information other than as strictly necessary to exercise its rights or perform its obligations under this Agreement;

                  ii.  use, and ensure that its Representatives use, reasonable care, at least as protective as the efforts it uses with respect to its own confidential information, to safeguard the Disclosing Party's Confidential Information from use or disclosure other than as permitted hereby;

                  iii. maintain the Disclosing Party's Confidential Information in confidence and, except as permitted hereunder, not disclose the Disclosing Party's Confidential Information without the Disclosing Party's prior written consent, provided, however, that the Receiving Party may disclose the Confidential Information to its Representatives who: (A) have a “need to know” for purposes of any performance, or exercise of any rights with respect to such Confidential Information, under this Agreement; (B) have been apprised of this restriction; and (C) are themselves bound by written nondisclosure agreements or obligations at least as restrictive as those set forth herein, provided, further, that the Receiving Party shall be responsible for ensuring its Representatives' compliance, and shall be liable for any of its Representatives' noncompliance, with this Section 9; and

                  iv. notify the Disclosing Party in writing immediately of any unauthorized accessing, possession or use of the Disclosing Party's Confidential Information of which it may become aware and cooperate reasonably with the Disclosing Party, at the Disclosing Party's expense, in any investigation or litigation relating to or arising from any of such unauthorized acts.

The obligations in this Section 9 will survive termination and continue for so long as the applicable information constitutes Confidential Information.

          c)  Exceptions. If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall, to the extent that it is legally permitted to do so: (i) provide prompt written notice to the Disclosing Party so that the Disclosing Party may seek a protective order or other appropriate remedy or waive its rights hereunder; and (ii) disclose only the portion of Confidential Information that it is legally required to produce. If a protective order or other remedy is not obtained, or the Disclosing Party waives compliance, the Receiving Party shall use reasonable efforts to obtain assurance that confidential treatment will be afforded the Confidential Information.

          d)  Feedback. Any feedback, comments, suggestions, or proposed modifications to the Platform provided by Licensee to SPEAR may be freely used by SPEAR without limitation, notice, or duty of accounting.

  10.  Term.  This Agreement commences as of the Effective Date and will continue in effect until the expiration of the Contract Period, unless earlier terminated in accordance with this Agreement. Upon the expiration of the Contract Period, this Agreement will automatically renew for an additional period equal to the Contract Period (each, a “Renewal Period”) unless either party gives the other party written notice of its intent not to renew at least 30 days before the expiration of the applicable Contract Period. The Contract Period and each Renewal Period together is the “Term”.

  11.  Termination; Effect of Termination.  Either party may terminate this Agreement if the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof.  In addition, either party may terminate this Agreement upon written notice to the other party if: (i) a receiver, trustee, administrator, or administrative receiver is appointed for the other party or its property; (ii) the other party makes an assignment for the benefit of creditors; (iii) any proceedings should be commenced against the other party under any bankruptcy, insolvency, or debtor's relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (iv) the other party is liquidated or dissolved.  Upon the expiration of the Term or the termination of this Agreement, all license rights granted to Licensee by SPEAR hereunder shall terminate immediately.  In addition, each party shall (i) immediately discontinue all use of Confidential Information of the other party obtained hereunder; and (ii) at the Disclosing Party’s request promptly return or cause to be returned to such other party or destroy or cause to be destroyed all copies obtained, made or authorized to be made hereunder of documents and tangible materials containing, reflecting, incorporating or based on any Confidential Information of such other party, and certify in writing to such other party that it has complied with the requirements hereof.  Notwithstanding the foregoing, the parties acknowledge and agree that Licensee may retain a copy of any SPEAR Confidential Information for the purpose of complying with applicable regulatory requirements, provided that such SPEAR Confidential Information is and continues to be treated in accordance with the terms of Section 9 hereof.

  12.  Warranties; Disclaimer of Warranties.

          a)  Mutual Representations. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.

          b)  SPEAR Warranties. SPEAR represents and warrants that the Platform will conform substantially in accordance with the documentation under normal use and circumstances.

          c)  Licensee Warranties. Licensee represents and warrants that (a) Licensee will use, and will ensure that all users use, each Platform in full compliance with this Agreement, SPEAR’s end-user terms of use and all applicable laws and regulations; (b) Licensee owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of the Licensee Data that is placed on, transmitted via or recorded by any Platform; (c) the provision and use of Licensee Data as contemplated by this Agreement and any Platform do not and shall not violate any Licensee’s privacy policy, terms- of-use or other agreement to which Licensee is a party or any law or regulation to which Licensee is subject to; and (d) no Licensee Data will include social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, credit report information or other personal financial information, health or medical information or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted regarding data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children’s Online Privacy Protection Act and the Gramm-Leach-Bliley Act.

         d)  Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 7, SPEAR DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO LICENSEE REGARDING THIS AGREEMENT AND THE PLATFORM, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY SPEAR. NO WARRANTY IS MADE THAT USE OF THE PLATFORM WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE PLATFORM WILL BE CORRECTED, OR THAT THE PLATFORM FUNCTIONALITY WILL MEET LICENSEE’S REQUIREMENTS. SPEAR DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING SPEAR.  

  13.  Indemnification.  

          a) SPEAR Indemnification. SPEAR will defend Licensee and its officers, directors, employees, agents successors and permitted assigns against any claim, suit, action or proceeding brought by a third party alleging that Licensee’s receipt or use of the Platform in accordance with this Agreement infringes any intellectual property right or misappropriates any trade secret of that third party (each, a “Claim Against Licensee”), and will pay all settlements entered into and damages awarded against Licensee as a result of a Claim Against Licensee; provided, however, that SPEAR will have no obligations under this Section 13(a) with respect to claims to the extent arising out of: (a) any instruction, information, designs, specifications or other materials provided by Licensee to SPEAR; (b) use of the Platform in combination with any materials or equipment not supplied to Licensee or specified by SPEAR in writing; (c) any modifications or changes made to the Platform by or on behalf of any person or entity other than SPEAR; (d) the use of any version of the Platform other than the most current release made available by SPEAR; (e) Licensee Data; or (f) Licensee’s breach of this Agreement, or the applicable Order(s). If a Platform, or any part thereof, becomes, or in the opinion of SPEAR may become, the subject of a claim of infringement or misappropriation, SPEAR may, at its option: (x) obtain a license for Licensee’s continued use of that Platform in accordance with this Agreement; (y) replace or modify the Platform so that they are no longer claimed to infringe or misappropriate; or (z) terminate this Agreement and refund to Licensee any portion of the fees prepaid by Licensee for the infringing Platform.

          b)  Licensee Indemnification. Licensee will defend SPEAR and its officers, directors, employees, agents, affiliates, successors and permitted assigns against any claim, suit, action or proceeding brought by a third party: (a) alleging that any information or materials provided by Licensee (including Licensee Data), or SPEAR’s receipt or use thereof, infringes any intellectual property right or misappropriates any trade secret of that third party; (b) arising from Licensee’s breach of Section 2; (c) arising from Licensee’s failure to comply with applicable law; or (d) arising from a dispute between Licensee and any client of Licensee (each of (a) – (d), a “Claim Against SPEAR”) and will pay all settlements entered into and damages awarded against SPEAR as a result of a Claim Against SPEAR. 

         c)  Indemnification Procedures. The party seeking indemnification hereunder will promptly notify the indemnifying party in writing of a claim for which it seeks indemnification hereunder and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party will immediately take control of the defense and investigation of the claim and will employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party will not settle any claim hereunder in a manner that adversely affects the rights of the indemnified party without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this Section 13(c) will not relieve the indemnifying party of its obligations under this Section 13 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.

 14.  Limitation of Liability. 

         a)  Exclusion of Damages. EXCEPT AS OTHERWISE PROVIDED SECTION 14(c), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA, LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS, OR BUSINESS INTERRUPTION OR OTHER COMMERCIAL, ECONOMIC OR OTHER DAMAGES, LOSSES OR INJURY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES, DAMAGES OR INJURIES AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.  

          b)  Liability Cap. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14(c), IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SPEAR PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

          c)  Exceptions. The exclusions of damages set forth in Section 14(a) and Section 14(b) do not apply to: (i) a party's obligations under Section 13 (Indemnification) 9; (ii) damages or other liabilities arising out of or relating to a party’s failure to comply with its obligations under Section 9 (Confidentiality); or (iii) a party's gross negligence, willful misconduct or fraud.

  15.  Survival. The rights and obligations of the parties set forth in this Section 15 and Sections 6, 7, 8, 9, 12(d), 14 and 16, and any right, obligation or required performance of the parties in this Agreement which by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration. 

  16.  Miscellaneous.

          a)  Entire Agreement.  This Agreement and its exhibits constitute the entire agreement of the parties with respect to the subject matter contained herein and supersedes any and all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter. 

          b)  Assignment. Neither party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the other party’s prior written consent. Any purported assignment, delegation, or transfer in violation of this Section 16(b) is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. 

          c)  Amendment; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. 

          d)  Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement. 

          e)  Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida, USA, without giving effect to any choice or conflict of law provision or rule.  All disputes arising out of this Agreement will be subject to the exclusive jurisdiction and venue of the state courts located in Leon County, Florida and the federal courts located in the Northern District of Florida and each Party hereby consents to the personal jurisdiction thereof. 

          f)  Equitable Remedies. Each party to this Agreement acknowledges and agrees that (A) a breach or threatened breach by such party of any of its obligations under this Agreement may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy, and (B) in the event of a breach or a threatened breach by such party of any such obligations, the other party shall, in addition to any and all other rights and remedies that may be available to such party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief, without any requirement to post a bond or other security or to prove actual damages or that monetary damages will not afford an adequate remedy. 

          g)  Counterparts. This Agreement may be executed in any number of counterparts, each of which, when delivered, shall be an original and enforceable against any party whose signature appears on such counterpart, and all of which together shall constitute one and the same instrument.

  17. Maintenance and Support. Subject to the terms and conditions of this Agreement, SPEAR hereby provides maintenance and support that will be detailed in a “Schedule A – Maintenance and Support" as purchased under this agreement.