PLEASE READ CAREFULLY – THIS IS A BINDING CONTRACT
THIS AGREEMENT ("AGREEMENT") IS A BINDING AGREEMENT BETWEEN CODE SYSTEMS
CORPORATION ("CODE SYSTEMS") DBA SPOON AND YOU AND, IF APPLICABLE, THE
COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, "YOU"). YOUR
USE OF CODE SYSTEMS PRODUCTS, SOFTWARE, SERVICES, SERVERS, AND WEB SITES (REFERRED
TO COLLECTIVELY AS THE "SERVICES" IN THIS DOCUMENT) IS SUBJECT TO THE
TERMS OF THIS AGREEMENT. THIS AGREEMENT INCORPORATES BY REFERENCE (1)
THE PRIVACY POLICY ("PRIVACY POLICY") AND (2) THE ACCEPTABLE
USE POLICY ("ACCEPTABLE USE POLICY" OR "AUP") POSTED
ON SPOON.NET, AS THEY MAY BE MODIFIED BY CODE SYSTEMS
FROM TIME TO TIME.
IN ORDER TO USE THIS SERVICE OR ANY SOFTWARE PRODUCTS PUBLISHED BY CODE SYSTEMS,
YOU MUST ACCEPT THESE TERMS AND CONDITIONS. YOU CAN ACCEPT THESE TERMS BY (A) CLICKING
THE "ACCEPT" BUTTON FOR THE AGREEMENT, WHERE THIS OPTION IS MADE AVAILABLE
TO YOU IN THE USER INTERFACE, OR (B) BY ACTUALLY USING THE SERVICES, IN WHICH CASE
YOU UNDERSTAND AND AGREE THAT CODE SYSTEMS WILL TREAT YOUR USE OF THE SERVICES AS
ACCEPTANCE OF THE AGREEMENT FROM THAT POINT ONWARDS. IF YOU ARE ENTERING INTO THIS
AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE
THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE "YOU"
SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, DO NOT AGREE WITH THE
TERMS AND CONDITIONS OF THIS AGREEMENT, OR ARE BARRED FROM RECEIVING THE SERVICES
UNDER THE LAWS OF THE UNTIED STATES OR OTHER COUNTRIES INCLUDING THE COUNTRY IN
WHICH YOU ARE RESIDENT OR FROM WHICH YOU ARE USING THE SERVICES, YOU MAY NOT USE
THE SERVICES.
1. Definitions
In this Agreement, the terms:
- "Affiliate" means any entity controlling, controlled by, or under common
control as evidenced by ownership or control of, either directly or indirectly,
at least 50% of the outstanding voting securities of the relevant entity.
- "Agreement" means these Terms and Conditions, applicable Transaction Documents,
Acceptable Use Policy, and any related attachments.
- "Acceptable Use Policy" means the document entitled "Acceptable Use
Policy" published on the spoon.net web site.
- "Code Systems" means Code Systems Corporation, its Affiliates, or entities
authorized by Code Systems Corporation to provide a Service.
- "Code Systems Products" means the software products owned by Code Systems.
- "Customer" means the entity that orders the Services or Licensed Materials
and is responsible for the payment of fees under, and compliance with, this Agreement.
- "Confidential Information" means any information disclosed previously
or in the future ("disclosed" means any of information, of access to information,
or of means to gain access to information) by either party to the other party, either
directly or indirectly, in writing, orally, by inspection of tangible objects or
otherwise (including, without limitation, research, product plans, products, services,
customers, markets, software, inventions, processes, designs, drawings, engineering,
hardware configuration information, marketing and finances documents), which are
indicated by the party to be "Confidential," "Proprietary" or
similarly designated, or which under the context of its disclosure ought to be considered
confidential. Information communicated orally shall be considered Confidential
Information if such information is identified as Confidential Information at the
time of disclosure or if such information is confirmed in writing, including confirmation
via email, as being Confidential Information within a reasonable time after the
initial disclosure. Confidential Information may also include information
disclosed to a disclosing party by third parties. Confidential Information
shall not, however, include any information which (i) was publicly known and made
generally available in the public domain prior to the time of disclosure by the
disclosing party; (ii) becomes publicly known and made generally available after
disclosure by the disclosing party to the receiving party through no action or inaction
of the receiving party; (iii) is already in the possession of the receiving party
at the time of disclosure by the disclosing party as shown by the receiving party's
files and records immediately prior to the time of disclosure; (iv) is obtained
by the receiving party from a third party without a breach of such third party's
obligations of confidentiality; (v) is independently developed by the receiving
party without use of or reference to the disclosing party's Confidential Information,
as shown by documents and other competent evidence in the receiving party's possession
or (vi) is required by law to be disclosed by the receiving party, provided that
the receiving party shall give the disclosing party prompt written notice of such
requirement prior to any disclosure so that the disclosing party may seek a protective
order or other appropriate relief.
- "Licensed Materials" means each of the Code Systems Products, Documentation
and Code Systems APIs, SDKs and any other Code Systems software code designed to
facilitate the integration or use of any Code Systems Product or Service by the
Customer.
- "Transaction Documents" means documents that set forth the description
of the Services being purchased from Code Systems and any additional terms set forth
in any Order Forms, Statements of Work, or other documents executed by the parties.
2. Responsibilities
General. Each party shall perform its obligations as set forth in
this Agreement. Code Systems shall provide the Services as set forth in any
applicable Transaction Document.
Ownership. Code Systems shall retain all right, title and interest
to any patents, copyrights, trade secrets or other proprietary rights in the Service
and Licensed Materials. Code Systems may make changes to Licensed Materials or Service
at any time without notice.
No Resale. Except as expressly permitted in a particular Transaction
Document, Customer shall not resell the Services to a third party nor enter into
any similar relationship with a third party to enable the purchase or use of the
Services or Licensed Materials through Customer. For purposes of the foregoing,
end users accessing the Customer web site are not considered to be using the Services.
When using the Services, Customer shall comply with Code Systems’ then-current
Acceptable Use Policy as published at the spoon.net web site.
No Modifications. Except as expressly permitted in a particular Transaction
Document, Customer shall not modify, alter, tamper with, or otherwise interfere
with proper functioning of the Licensed Materials or Service. Customer shall
not remove, obscure, modify, or otherwise inhibit the full and complete display
of any branding or proprietary marks in the Service user interface. Customer
acknowledges that Licensed Materials may incorporate hardware- and Internet-based
licensing mechanisms designed to prevent piracy of Licensed Materials. Customer
grants Code Systems the right to utilize such licensing mechanisms and shall not
interfere with the proper functioning of such mechanisms.
Test and Support Internal Use Licenses. Customer grants to Code Systems
a not-for-resale ("NFR") license for the use of any Customer products
to be virtualized, packaged, or delivered using the Services. Such NFR license
shall be limited to the purposes contemplated in this Agreement and any associated
Transaction Documents, including but not limited to testing, supporting, packaging,
or preparing Customer products for use with the Services, and shall otherwise be
subject to the terms of the applicable Customer End-User License Agreement, except
to the extent inconsistent with this Agreement. Any Customer materials provided
to Code Systems under the NFR license shall be treated as Confidential Materials
by Code Systems.
3. Payment Terms
Payments to Code Systems. Unless otherwise set forth in the Transaction
Document, Customer shall pay all applicable Service and licensing fees within thirty
days of any invoice date. All prices are denominated in U.S dollars and all
payments shall be made in U.S. currency, unless otherwise set forth in the Transaction
Document. Payments made by check shall be drawn against a U.S. bank.
Taxes and Fees. Prices do not any taxes or duties, shipping and handling
fees, or travel expenses. All such taxes, duties, and fees are the responsibility
of Customer. There shall be no deduction from, or an offset against, any such taxes,
fees, or other charges, and all payments shall be grossed up to account for any
withholding taxes.
Amendments. Unless otherwise stipulated in a Transaction Document
or other amendment, the fee schedule for Services and Licensed Materials may be
changed at any time at the sole discretion of Code Systems, provided that if Code
Systems increases the fees then Customer shall have the right to terminate its purchase
of the applicable Service without termination charge by providing written notice
to code Systems within thirty days of the effective date of the increased fees.
Late payment. Customer shall pay a late charge of the lesser of one
percent per month (or part of a month) or the maximum lawful rate permitted by applicable
law for all amounts not paid within thirty days of invoice date, plus all costs,
including reasonable attorneys’ fees, incurred to collect any unpaid amounts.
Unless prohibited by applicable law or regulation, all invoiced amounts not disputed
in writing within sixty days of the invoice date are deemed accepted. Restrictive
endorsements or other statements on checks accepted by Code Systems are not enforceable.
Code Systems reserves the right to reasonably require payment assurance.
4. Confidentiality
Confidentiality of the Agreement. The terms of any Transaction Documents
and attachments, shall be treated as Confidential Information by the parties.
Non-Disclosure of Confidential Information. Each party agrees not
to use any Confidential Information of the other party for any purpose except in
support of the activities contemplated in this agreement. Each party agrees
not to disclose any Confidential Information of the disclosing party to third parties
or to such party's employees, except to those employees of the receiving party who
are required to have the information in order to evaluate or engage in discussions
concerning matters related to this Agreement. Neither party shall reverse
engineer, disassemble or decompile any prototypes, software or other tangible objects
which embody the other party's Confidential Information and which are provided to
the party hereunder.
Maintenance of Confidentiality. Each party agrees that it shall take
reasonable measures to protect the secrecy of and avoid disclosure and unauthorized
use of the Confidential Information of the other party. Without limiting the
foregoing, each party shall take at least those measures that it takes to protect
its own most highly confidential information, and shall ensure that its employees
who have access to Confidential Information of the other party have signed a non-use
and non-disclosure agreement in content similar to the provisions hereof, prior
to any disclosure of Confidential Information to such employees. Neither party
shall make any copies of the Confidential Information of the other party unless
such copying is previously approved in writing by the disclosing party. Each
party shall reproduce the disclosing party's proprietary rights notices on any such
approved copies, in the same manner in which such notices were set forth in or on
the original.
Ownership and Return of Materials. Any and all Confidential Information
disclosed by either party hereto is and shall remain the property
of the disclosing party. All documents and other tangible objects containing or
representing Confidential Information, either in whole or part, which has been disclosed
by either party to the other party, and all copies thereof which are in the possession
of the receiving party, shall be promptly returned to the disclosing party upon
the first of the following to occur: (i) the disclosing party's
written request; (ii) the completion of the purpose for which it was provided; (iii)
the determination by the receiving party that it no longer desires to possess the
Confidential Information; or (iv) within thirty (30) days after any termination
of this Agreement.
No Additional Restriction. Nothing in this Agreement shall restrict the
disclosing party from using, disclosing or disseminating its own Confidential Information
in any way.
Residuals. Notwithstanding the foregoing provisions of this Section
4, the receiving party will have the right to use and exploit Residuals, except
that Residuals shall be subject to the same limitations on disclosure as the receiving
party would impose on its own confidential information of like value. As used herein,
"Residuals" means ideas, information and understandings that are retained
in the memory of an ordinary person skilled in the art, not intent on appropriating
the Confidential Information of the disclosing party as a result of his or her review,
evaluation or testing of such Confidential Information.
5. Indemnification
Customer shall defend, indemnify, and hold harmless Code System or its agents or
suppliers for any claim resulting from a violation of the Acceptable Use Policy,
any infringement of patents, copyrights, or other intellectual property rights resulting
from Customer content, use of the Service other than as specified in relevant Code
Systems documentation, or use of products or services not supplied by Code Systems.
Code Systems shall promptly notify Customer in writing of any claim, suit, or proceeding
for which an indemnity is claimed, and allow Customer to control the defense of
any claim, suit, or proceeding. Customer shall not enter into any settlement
that imposes liability or obligations on Code Systems without obtaining Code Systems’
prior written consent.
6. Disclaimer and Limitation of Liability
EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, PAST OR PRESENT, STATUTORY
OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST
EXTENT PERMITTED BY LAW, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS
FOR A PARTICULAR PURPOSE OR SECURITY.
LIABILITY ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE
DAMAGES AND, TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL HAVE ANY LIABILITY
TO THE OTHER PARTY OR A THIRD PARTY FOR ANY INDIRECT OR SPECULATIVE DAMAGES INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTIONS,
AND LOSS OF PROFITS, IRRESPECTIVE OF WHETHER THE PARTY HAS ADVANCE NOTICE OF THE
POSSIBILITY OF ANY SUCH DAMAGES; PROVIDED, HOWEVER THAT THIS LIMITATION SHALL NOT
APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS, DAMAGES ARISING FROM A PARTY’S
BREACH OF CONFIDENTIALITY, OR DAMAGES ARISING FROM A PARTY’S WILLFUL MISCONDUCT.
NOTWITHSTANDING THE FOREGOING, A PARTY’S TOTAL COLLECTIVE LIABILITY TO THE
OTHER PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID TO CODE
SYSTEMS BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE INCIDENT
GIVING RISE TO SUCH LIABILITY, PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL NOT
APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS, DAMAGES ARISING FROM A PARTY’S
BREACH OF CONFIDENTIALITY, OR DAMAGES ARISING FROM A PARTY’S WILLFUL MISCONDUCT.
7. Term and Termination
Term. The "Term", if any, is set forth in the Transaction Document
and automatically renews for successive terms of equal duration unless either party
notifies the other of its intent to not renew at least sixty (60) days prior to
the end of the applicable Term. Termination of an individual Transaction Document
shall not terminate any Services under other Transaction Documents. If no Term is
set forth in a Transaction Document, then either party may terminate services associated
with that Transaction Document at any time, with or without notice.
Termination. Either party may terminate a Transaction Document if
the other materially breaches this Agreement and such breach continues unremedied
for thirty days following notice or such other period designated herein. Code
Systems may immediately suspend all Transaction Documents for undisputed not received
within fifteen days of payment due date. Code Systems may modify components of any
Service to the extent such change is made to the generally available Service and,
in such event, may modify or eliminate any affected Agreement terms or an affected
Transaction Document without termination charge upon thirty days notice, or a lesser
period if such change or termination is due to applicable laws or regulations; provided
that Customer may terminate the applicable Transaction Document without termination
charge if Code Systems fails to remedy a material decrease in the functionality
of the affected Service within thirty days of written notice from Customer.
Early Termination. Except for a termination by Customer as expressly
permitted herein, if a Transaction Document is terminated prior to end of the Term
for any reason, Customer shall pay Code Systems a termination charge (which Customer
acknowledges reflects a reasonable measure of actual damages and not a penalty)
equal to 100% of the fees that would have become due for the remainder of the Term,
in addition to all fees outstanding at the date of termination.
Survival. Sections 3, 4, 6, 7, and 8 shall survive termination.
8. Miscellaneous
Governing Law, Jurisdiction and Attorneys’ Fees. This Agreement
and all matters arising out of or relating to this Agreement shall be governed by
the laws of the State of Washington, excluding its conflict of law provisions.
In the event of any litigation of any controversy or dispute arising out of or in
connection with this Agreement, its interpretation, its performance, or the like,
the prevailing party shall be awarded reasonable attorneys' fees and expenses, court
costs, and reasonable costs for expert and other witnesses attributable to the prosecution
or defense of that controversy or dispute. In the event of a non-adjudicative
settlement of litigation between the parties, the term "prevailing party"
shall be determined by that same process. The Federal and State Courts located
in King County, Washington shall have sole jurisdiction over any disputes arising
hereunder and the parties hereby submit to the personal jurisdiction of such courts.
The U.N. Convention on the International Sale of Goods shall not apply to this Agreement.
Notices. Except as otherwise set forth herein, notices made by us
to you under this Agreement that affect our customers generally (e.g., notices of
amended Agreements, AUPs, updated fees, etc.) will be posted on the spoon.net web
site. Notices made by us under this Agreement for you or your account specifically
(e.g., notices of breach and/or suspension) will be provided to you via the email
address provided to us in your registration for the Services or in any updated email
address you provide to us in accordance with standard account information update
procedures we may provide from time to time. It is your responsibility to keep your
email address current and you will be deemed to have received any email sent to
any such email address, upon our sending of the email, whether or not you actually
receive the email. For notices made by you to us under this Agreement,
all notices shall be required to be sent in writing and shall be deemed to have
been given upon the date it was delivered by courier or, if by certified mail return
receipt requested, on the date received, to Code Systems Corporation, Attn: General
Counsel, 119 First Avenue South, 3rd Floor, Seattle, WA 98104.
Severability. In the event any provision of this Agreement is held
to be invalid or unenforceable, the remaining provisions of this Agreement will
remain in full force.
Waiver. The waiver by either party of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent default or breach.
No Agency, Partnership or Joint Venture. No agency, employment, partnership,
joint venture, or other joint relationship is created hereby. Code Systems
and Customer are each independent contractors with respect to the other and neither
has any authority to bind the other in any respect whatsoever.
Assignment. Neither party may assign, transfer or delegate this Agreement
or any right and/or obligation of the party hereunder to any third party hereto
without the prior written consent of the other party. Notwithstanding the
foregoing, either party may assign this Agreement and such party's rights and obligations
hereunder without the consent of the other party to a subsidiary, parent, or entity
under common control. In addition, either party may assign this Agreement,
and its rights and obligations hereunder, to any third party that acquires all or
substantially all of such party's stock or assets relating to that portion of such
party's business that is related to the subject matter of this Agreement, provided
that such party assumes all of the obligations of the assigning company under this
Agreement. Any attempted assignment, delegation, or transfer in contravention
of this Agreement shall be null and void.