Splendr Terms Of Service
If you have a separate written agreement with Splendr Solutions Inc. with respect to use of the Service or any related services, these Terms of Service will not apply to you.
These Terms of Service (“Agreement”) govern your ("Customer") use of the Service and allow you to receive Support. By clicking a box indicating your acceptance of this Agreement, (e.g., “I Agree,” “Accept Terms,” “I Understand and Agree”) or similar button on the Service registration page, or executing an Order, as further described below, or by otherwise accessing the Service, you represent that (1) you have read, understand, and agree to be bound by this Agreement, (2) you are of legal age to form a binding contract with Splendr Solutions Inc., (“Splendr,” “we,” “our,” or “us”, Splendr and Customer may each be referred to separately as, a “Party,” or together as, the “Parties”), and (3) you have the authority to enter into this Agreement personally or on behalf of the company or other organization you represent, and to bind that entity to this Agreement. In the event you are agreeing to this Agreement on behalf of a company or organization, “Customer,” will refer to the entity you are representing. We may update this Agreement from time to time in accordance with Section 17.5 (Updates).
Capitalized terms are defined in the Section 18 (Glossary) or in context below.
1. ACCESS OF THE SERVICE
1.1. The Service
Subject to this Agreement, Customer may use the Service for its own business purposes during the Subscription Term (“Permitted Use”). This includes the right to copy and use the Documentation as part of Customer’s Permitted Use.
1.2. Users
Customer is responsible for its Users’ actions through the Service and for Users' compliance with this Agreement. Customer will require that Users keep their login credentials confidential and will promptly notify Splendr upon learning of any compromise of User accounts or credentials. Credentials must not be shared or used by multiple persons, and may only be reassigned to a new User during a Subscription Term to replace a former User who has terminated employment.
1.3. Affiliates
Customer’s Affiliates may serve as Users. Customer shall be responsible for its Affiliates’ use of the Service. Alternatively, Customer’s Affiliates may enter into their own Orders as mutually agreed with Splendr, which creates a separate agreement between each such Affiliate and Splendr incorporating this Agreement with the Affiliate treated as “Customer”. Neither Customer nor any Customer Affiliate has any rights under each other’s separate agreement with Splendr, and breach or termination of any such separate agreement affects only that agreement.
1.4. Support
Splendr will provide Support to Customer and its Users at no additional charge.
1.5. Updates
Splendr may, at its option and expense, make updates, bug fixes, modifications, and improvements to the Service from time to time, provided that such updates, bug fixes, modifications, or improvements do not materially degrade the Service during the Subscription Term.
1.6. Future Functionality
Customer hereby acknowledges and agrees that its purchase is not contingent on the delivery of any future functionality, feature, or service offerings, or dependent on any oral or written representations made by Splendr whatsoever.
1.7. No Legal Advice
The Service, including any clauses offered and AI-assisted review or drafting suggestions, are for informational purposes only and do not constitute legal advice. Splendr does not warrant the accuracy, completeness, or usefulness of any information provided and is not responsible for any errors or omissions, or for results obtained from the use of such information. The Service should not be relied on as a substitute for, nor does it replace, professional legal advice.
2. DATA
2.1. Customer Data
Customer grants Splendr a license during the Subscription Term to use Customer Data to provide the Service, Support, and Technical Services to Customer.
2.2. Security
Splendr maintains industry-standard physical, technical, and administrative safeguards as described in the Documentation that are designed to prevent unauthorized access, use, alteration, or disclosure of Customer Data.
2.3. Service Operations Data
Splendr may collect Service Operations Data and use it to operate, improve and support the Service and for other lawful business purposes, including benchmarking and reports. However, Splendr will not disclose Service Operations Data externally unless it is (a) de-identified so that it does not identify Customer, its Users or any other person and (b) aggregated with data across other customers.
2.4. Third-Party Platforms
Customer may choose to enable integrations or exchange Customer Data with Third-Party Platforms. Customer’s use of a Third-Party Platform is governed by its agreement with the relevant provider, not this Agreement, and Splendr is not responsible for Third-Party Platforms or how Customer's providers use Customer Data.
2.5. Output
In utilizing features of the Service, Customer may provide or upload Customer Data to Splendr and receive an output generated and returned by the Service based on such Customer Data (“Output”). Customer may use the Output for any purpose, provided Customer complies with this Agreement. Customer is solely responsible for the use and distribution of any Output.
3. USE OF THE SERVICE
3.1. Compliance
Customer will comply with this Agreement and the Documentation in using the Service. Between the Parties, Customer is responsible for the content and accuracy of Customer Data.
3.2. Restrictions
Customer will not (and will use commercially reasonable efforts not to allow any third party to):
(a) access or use the Service for any competitive purposes, including to develop a similar or competing product or service (e.g., benchmarking);
(b) conduct penetration testing on the Service, interfere with its operation or circumvent its access restrictions;
(c) market, sublicense, distribute, resell, lease, loan, transfer, or otherwise commercially exploit or make the Service available (in whole or part) to any third party, grant non-Users access to the Service or use the Service to provide a hosted or managed service to others;
(d) obtain or attempt to obtain the Service by any means or device with intent to avoid paying the fees that would otherwise be payable for such access or use; or
(e) modify, create derivative works of, decompile, reverse engineer, attempt to gain access to the source code of, or copy the Service, or any of its components, except to the extent these restrictions are prohibited by Laws and then only upon advance notice to Splendr.
4. MUTUAL COMPLIANCE WITH LAW
Each Party will comply with all laws, regulations, court orders, or other binding requirements of a government authority (“Laws”) that apply to its performance under this Agreement.
5. REPRESENTATIONS AND WARRANTIES
5.1. Mutual Representations and Warranties
Each Party represents and warrants that:
(a) it has validly entered into this Agreement and has the legal power to do so, and
(b) it will use industry-standard measures to avoid introducing viruses, malicious code or similar harmful materials into the Service.
5.2. Splendr Warranties
Splendr warrants that:
(a) the Service will perform as materially described in the Documentation and Splendr will not materially decrease the overall functionality of the Service during the Subscription Term (the “Performance Warranty”), and
(b) any Technical Services will be provided in a professional and workmanlike manner (the “Technical Services Warranty”).
5.3. Splendr Warranty Remedies
Splendr will use reasonable efforts to correct a verified breach of the Performance Warranty or Technical Services Warranty reported by Customer. If Splendr fails to do so within 30 days after Customer’s warranty report, then either Party may terminate the affected Order as relates to the non-conforming Service or Technical Services, in which case Splendr will refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Technical Services (for the Technical Services Warranty). To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Service or 30 days after delivery of the relevant Technical Services. This Section 5.3 sets forth Customer’s exclusive remedies and Splendr’s sole liability for breach of the Performance Warranty or Professional Services Warranty.
5.4. Disclaimer
WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH IN SECTION 5.2 (SPLENDR WARRANTIES), THE SERVICE, SUPPORT, AND TECHNICAL SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. SPLENDR AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, TITLE AND NON-INFRINGEMENT. SPLENDR DOES NOT WARRANT THE RESULTS TO BE ACHIEVED FROM THE SERVICE OR THAT THE SERVICE IS ERROR-FREE, WILL PERFORM UNINTERRUPTED OR WILL MEET CUSTOMER’S REQUIREMENTS. THE WARRANTIES IN SECTION 5.2 (SPLENDR WARRANTIES) DO NOT APPLY TO ISSUES ARISING FROM THIRD PARTY PLATFORMS OR MISUSE OR UNAUTHORIZED MODIFICATIONS OF THE SERVICE. THESE DISCLAIMERS APPLY TO THE FULL EXTENT PERMITTED BY LAW.
6. TECHNICAL SERVICES
Splendr may perform Technical Services as described in an Order, which may identify additional terms or milestones for the Technical Services. Customer will give Splendr timely access to Customer Materials reasonably needed for Splendr’s provision of the Technical Services, and if Customer fails to do so, Splendr’s obligation to provide Technical Services will be excused until access is provided. Splendr will use the Customer Materials only for purposes of providing Technical Services. Subject to any limits in an Order, Customer will reimburse reasonable travel and lodging expenses incurred by Splendr in providing Technical Services, provided such expenses are approved in advance by Customer.
7. FEES AND PAYMENT
7.1. Payment
Customer will pay the fees described in the applicable Order. Unless the Order states otherwise, all undisputed amounts are payable in U.S. dollars and due within 30 days from the date of an invoice (“Due Date”). All fees and expenses are non-refundable and non-cancellable except as expressly set out in the Agreement and any applicable Order. In addition to any other remedies set forth in this Agreement, if any undisputed, invoiced amount is not received by Splendr by the Due Date, then those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
7.2. Taxes
Customer is responsible for any sales, use, GST, value-added, withholding or similar taxes or levies that apply to its Orders, whether domestic or foreign (“Taxes”), other than Splendr’s income tax. Fees and expenses are exclusive of Taxes. Unless Customer provides Splendr with a valid exemption certificate, Customer is solely responsible for paying all Taxes associated with or arising from this Agreement.
7.3. Payment Disputes
If Customer disputes an invoice in good faith, it will notify Splendr prior to the Due Date and the Parties will seek to resolve the dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either Party may pursue any available remedies.
7.4. Records and Validation
Customer is responsible for providing complete and accurate billing and contact information to Splendr and notifying Splendr of any changes to such information. Splendr may conduct verification checks on the usage of the Service during the Subscription Term. If it is determined that the usage of the Service exceeds the baseline quantity stated in an applicable Order, the Parties (Channel Partner and Splendr or Customer and Splendr, as applicable) will address any over-usage in a separate Order. If Customer fails to pay for the over-usage, Splendr may terminate access to the Service within thirty (30) days of Splendr’s notice of non-compliance.
8. SUSPENSION
Splendr may suspend Customer’s access to the Service and related services due to a Suspension Event, but where practicable will give Customer prior notice so that Customer may seek to resolve the issue and avoid suspension. Splendr is not required to give prior notice in exigent circumstances or for a suspension made to avoid material harm or violation of Law. Once the Suspension Event is resolved, Splendr will promptly restore Customer’s access to the Service in accordance with this Agreement. “Suspension Event” means (a) Customer’s account is 30 days or more overdue, (b) Customer is in breach of Section 3 (Use of the Service) or (c) Customer’s use of the Service risks material harm to the Service or others.
9. TERM AND TERMINATION
9.1. Subscription Terms
The initial Subscription Term will commence on the date you accept this Agreement, or such other date mutually agreed to by the Parties in writing, and will continue for an initial 12-month period unless the Order states otherwise. Each Subscription Term will renew for successive twelve-month periods unless (a) the Parties agree on a different renewal period in the Order or (b) either Party notifies the other (or Channel Partner notifies Splendr, if applicable) of non-renewal at least 30 days prior to the end of the then current Subscription Term.
9.2. Renewal Pricing
Splendr reviews the fees it charges for the Services on an annual basis so that it reflects Splendr’s investment in any upgrades in functionality and features. Splendr shall provide you with thirty (30) days prior notice of any increase in your fees, which shall be effective on the anniversary date of your Subscription Term. The following do not constitute fee increases: (i) additional fees for upgrades, increased usage limitations or additional services that Customer orders; and (ii) expiration of any discount or incentive programs.
9.3. Termination
Either Party may terminate this Agreement if the other Party (i) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice (ii) ceases operation without a successor, or (iii) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that Party and not dismissed within 60 days. Customer shall receive a refund of any pre-paid, unused fees for the terminated portion of an applicable Subscription Term for such Customer-initiated terminations, and Customer will promptly pay Splendr any and all outstanding fees and expenses due both as of the date of termination and for the terminated portion of the Subscription Term for any such Splendr-initiated termination.
9.4. Data Export & Deletion
During a Subscription Term, Customer may export Customer Data from the Service as described in the Documentation (or Splendr will otherwise make the Customer Data available to Customer). After termination or expiration of this Agreement, Splendr will delete Customer Data and each Party will delete any Confidential Information of the other in its possession or control. Nonetheless, Splendr may retain Customer Data and each Party may retain Confidential Information in accordance with its standard backup or record retention policies or as required by Law, subject to Section 2.2 (Security) and Section 10 (Confidentiality).
9.5. Effect of Termination
(a) Customer’s right to use the Service, Support and Technical Services will immediately cease upon any termination or expiration of this Agreement, subject to this Section 9 (Term and Termination).
(b) In no event will any termination or expiration relieve Customer of the obligation to pay any expenses and fees payable to Splendr for the period prior to the effective date of termination or expiration.
(c) The following Sections will survive expiration or termination of this Agreement: Section 2.3 (Service Operations Data), 3 (Use of the Service), 5.4 (Disclaimer), 7.1 (Payment) (for amounts then due), 7.2 (Taxes), 9.4 (Data Export & Deletion), 9.5 (Effect of Termination), 10 (Confidentiality), 11 (Proprietary Rights), 12 (Limitations of Liability), 13 (Indemnification), 17 (General Terms), and 18 (Glossary).
10. CONFIDENTIALITY
10.1. Use and Protection
As recipient, each Party will (a) use Confidential Information only to fulfill its obligations and exercise its rights under this Agreement, (b) not disclose Confidential Information to third parties without discloser’s prior approval, except as permitted in this Agreement, and (c) protect Confidential Information using at least the same precautions recipient uses for its own similar information and no less than a reasonable standard of care.
10.2. Permitted Disclosures
The recipient may disclose Confidential Information to its employees, agents, contractors, Affiliates, subcontractors and other representatives having a legitimate need to know, provided recipient remains responsible for their compliance and they are bound to confidentiality obligations no less protective than this Section 10 (each, a “Representative”).
10.3. Exclusions
These confidentiality obligations do not apply to information that the recipient can document (a) is or becomes public knowledge through no fault of the recipient, (b) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from the discloser, (c) it rightfully received from a third party without confidentiality restrictions or (d) it independently developed without access to the Confidential Information.
10.4. Remedies
Breach of this Section 10 (Confidentiality) may cause substantial harm for which monetary damages are an insufficient remedy. Upon a breach of this Section 10, the discloser is entitled to seek appropriate equitable relief, including an injunction, in addition to other remedies.
10.5. Required Disclosures
The recipient may disclose Confidential Information (including Customer Data) to the extent required by Laws. If permitted by Law, the recipient will give the discloser reasonable advance written notice of the required disclosure and reasonably cooperate, at the discloser’s expense, to contest or seek to limit the disclosure or obtain confidential treatment for the Confidential Information. If no protective order or other remedy is obtained, the recipient will disclose only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to such Confidential Information.
11. PROPRIETARY RIGHTS
11.1. Splendr Property
Splendr owns and retains all rights, title, and interests in and to the Service, any documentation created by Splendr to provide Technical Services, Service Operations Data, Splendr trade names and trademarks, and any feedback or suggestions Customer provides to Splendr with respect to the Service or Technical Services (“Splendr Property”). All feedback is provided “AS IS” and Splendr will not publicly identify Customer as the source of feedback without Customer’s permission. Except for Customer’s express rights in this Agreement, as between the Parties, Splendr and its licensors retain all intellectual property rights in the Splendr Property.
11.2. Customer Property
Except for Splendr’s express rights in this Agreement, as between the Parties, Customer owns and retains all rights, title, and interests in and to the Customer Data and Customer Materials provided to Splendr.
12. LIMITATIONS OF LIABILITY
12.1. General Cap
EACH PARTY’S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE GENERAL CAP.
12.2. Consequential Damages Waiver
NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.
12.3. Exceptions and Enhanced Cap
SECTIONS 12.1 (GENERAL CAP) AND 12.2 (CONSEQUENTIAL DAMAGES WAIVER) WILL NOT APPLY TO ENHANCED CLAIMS OR UNCAPPED CLAIMS. FOR ALL ENHANCED CLAIMS, EACH PARTY’S ENTIRE LIABILITY WILL NOT EXCEED THE ENHANCED CAP.
12.4. Nature of Claims
The waivers and limitations in this Section 12 (Limitations of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
12.5. Liability Definitions
The following definitions apply to this Section 12 (Limitations of Liability).
- Enhanced Cap means three times (3x) the General Cap.
- Enhanced Claims means Splendr’s breach of Section 2.2 (Security).
- General Cap means the total amounts paid or payable by Customer for: (i) use of the Service or (ii) performance of the Technical Services, as applicable, to Splendr under this Agreement in the 12 months immediately preceding the first incident giving rise to a claim of liability. Any Technical Services that are provided on a no-charge basis will be valued at $1,000 for purposes of this definition.
- Uncapped Claims means (a) the indemnifying Party’s obligations under Section 13 (Indemnification), (b) either Party’s infringement or misappropriation of the other Party’s intellectual property rights or Customer’s breach of Section 3.2 (Restrictions), (c) any breach of Section 10 (Confidentiality), excluding breaches related to Customer Data, and (d) liabilities that cannot be limited by Law or Customer’s payment obligations.
13. INDEMNIFICATION
13.1. By Splendr
Splendr, at its own cost, will defend Customer from and against any Splendr-Covered Claims and will indemnify Customer from and against any damages or costs finally awarded against Customer by a court of competent jurisdiction (including reasonable attorneys’ fees) or agreed in settlement by Splendr resulting from the Splendr-Covered Claims.
13.2. Indemnification by Customer
Customer, at its own cost, will defend Splendr from and against any Customer-Covered Claims and will indemnify Splendr from and against any damages or costs finally awarded against Splendr by a court of competent jurisdiction (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the Customer-Covered Claims.
- Splendr-Covered Claim means a third-party claim that the Service, when used by Customer as authorized in this Agreement, infringes or misappropriates a third party’s Canadian or United States intellectual property rights.
- Customer-Covered Claim means a third-party claim arising from Customer Data, Customer Materials or Customer’s breach or alleged breach of Section 3 (Use of the Service).
13.3. Indemnification Definitions
Definitions related to indemnification are included in the previous sections.
13.4. Procedures
The indemnifying Party’s obligations in this Section 13 (Indemnification) are subject to receiving from the indemnified Party: (a) prompt notice of the claim (but delayed notice will only reduce the indemnifying Party’s obligations to the extent it is prejudiced by the delay), (b) the exclusive right to control the claim’s investigation, defense and settlement and (c) reasonable cooperation at the indemnifying Party’s expense. The indemnifying Party may not settle a claim without the indemnified Party’s prior approval if settlement would require the indemnified Party to admit fault or take or refrain from taking any action (except regarding use of the Service when Splendr is the indemnifying Party). The indemnified Party may participate in a claim with its own counsel at its own expense.
13.5. Mitigation & Exceptions
In response to an infringement or misappropriation claim, if required by settlement or injunction or as Splendr determines necessary to avoid material liability, Splendr may, in its sole discretion: (a) procure rights for Customer’s continued use of the Service, (b) replace or modify the allegedly infringing portion of the Service to avoid infringement, without reducing the Service’s overall functionality or (c) terminate the affected Order or the Agreement and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. Splendr’s obligations in this Section 13 (Indemnification) do not apply to claims resulting from (1) modification or unauthorized use of the Service or (2) use of the Service in combination with items not provided by Splendr, including Third-Party Platforms. This Section 13 (Indemnification) sets out the indemnified Party’s exclusive remedy and the indemnifying Party’s sole liability regarding third-party claims of intellectual property infringement or misappropriation.
14. INSURANCE
14.1. Insurance Coverage
Splendr will maintain in full force and effect during the term of this Agreement insurance coverage sufficient to meet its obligations under this Agreement, consistent with its business practices and as required by applicable law. Insurance carriers will be rated A-VII or better by A.M. Best Provider. Upon request, Splendr will provide a certificate of insurance evidencing such coverage.
15. TRIALS AND BETAS
Splendr may offer optional Trials and Betas. Use of Trials and Betas is permitted only for Customer’s internal evaluation during the period designated on the Order (or if not designated in an Order or otherwise, 30 days). Either Party may terminate Customer’s use of Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features never released. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, SPLENDR OFFERS NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS AND ITS LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED US$1,000.
16. PUBLICITY
Neither Party may publicly announce this Agreement without the other Party’s prior approval or except as required by Laws.
17. GENERAL TERMS
17.1. Assignment
Neither Party may assign this Agreement without the prior consent of the other Party, except that either Party may assign this Agreement, with notice to the other Party, to an Affiliate or in connection with the assigning Party’s merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.
17.2. Governing Law and Courts
This Agreement is governed by the laws of the Province of British Columbia without reference to conflicts of law rules. For any dispute relating to this Agreement, the Parties consent to personal jurisdiction and the exclusive venue of the courts in Vancouver, British Columbia, provided that nothing in this Section will restrict Splendr from seeking injunctive relief in a forum of its choice. Each party waives any objection to the jurisdiction and venue of any such court and any claim that any such court is an inconvenient forum. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this Agreement.
17.3. Notices
(a) Except as set out in this Agreement, notices, requests and approvals under this Agreement will be in writing to the addresses on the Order or in this Agreement and will be deemed given: (1) upon receipt if by personal delivery, (2) upon receipt if by certified or registered mail (return receipt requested), (3) one day after dispatch if by a commercial overnight delivery or (4) upon delivery if by email. Either Party may update its address with notice to the other.
(b) Splendr may also send operational notices through the Service.
17.4. Entire Agreement
This Agreement, including all applicable Orders, is the Parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. Excluding Orders, terms in business forms, purchase orders or quotes, online terms, or invoicing portal used by Customer will not amend or modify this Agreement; any such documents are for administrative purposes only. In the event of any conflict or inconsistency between the Order and this Agreement, the Order will prevail.
17.5. Updates
Splendr may modify this Agreement from time to time. If a modification materially impacts this Agreement, Splendr will use reasonable efforts to notify Customer through the Service, the website and/or in accordance with this Section 17 (General Terms). Any changes to this Agreement posted on the website will be effective if Customer assents to such changes or upon Customer’s renewal Subscription Term, except changes required by law or as necessary for new features will immediately become effective to the extent necessary to comply with such law or as required to use such new features. If Customer objects to the updated Agreement, as Customer’s exclusive remedy and without penalty, Customer may choose not to renew by canceling any Subscription Term set to auto-renew in accordance with Section 9.1 (Subscription Terms).
17.6. Waivers and Severability
Waivers must be signed by the waiving Party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
17.7. Force Majeure
Neither Party is liable for a delay or failure to perform this Agreement due to a Force Majeure. If a Force Majeure materially adversely affects the Service for 30 or more consecutive days, either Party may terminate the affected Order upon notice to the other and Splendr will refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. However, this Section does not limit Customer’s obligations to pay fees owed.
17.8. Service Support Providers
Splendr may use Service support providers (e.g., third-party hosting and other service providers) in provision of the Service and Support and permit them to exercise Splendr's rights and fulfill Splendr's obligations, but Splendr remains responsible for their compliance with this Agreement.
17.9. Independent Contractors
The Parties are independent contractors, not agents, partners or joint venturers.
17.10. No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement.
17.11. Anti-Corruption and Export
Each Party will, and will cause its employees, consultants, and agents to, comply with the US Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010. Customer agrees to comply with all applicable laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control, or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designated countries, entities, and persons (“Sanctions Targets”); and agrees not to directly or indirectly export, re-export, or otherwise deliver the Service to a Sanctions Target, or broker, finance, or otherwise facilitate any transaction in violation of any Export Laws. Customer represents that Customer is not a Sanctions Target or prohibited from receiving the Service. The Service will be used for non-prohibited, commercial purposes by non-prohibited Users and will not be exported or transferred to China or any Sanctions Target.
17.12. Government Rights
For purposes of this Agreement and to the extent applicable, the Service is "commercial computer software" and a "commercially available off-the-shelf (COTS) item" as defined at FAR 2.101 developed at the private expense of Splendr. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of the Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement ("DFARS") and its successors. This Section is in lieu of and supersedes any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
17.13. Channel Partner Service Subscriptions
This Section applies to any Customer access of the Service obtained through an authorized Splendr channel partner (“Channel Partner”).
(a) Commercial Terms. Instead of paying Splendr directly, Customer will pay applicable amounts to the Channel Partner as agreed between Customer and the Channel Partner. Customer’s order details (e.g., scope of use, Subscription Term, and fees) will be as stated in the Order placed by Channel Partner with Splendr on Customer’s behalf. Customer’s Order will renew with Channel Partner in accordance with Section 9.1 (Subscription Terms), unless Channel Partner notifies Splendr that it is opting-out of auto-renewal on Customer’s behalf as described in this Agreement or in the manner specified in the agreement between Channel Partner and Splendr. Channel Partner is responsible for the accuracy of such Order. Splendr may suspend or terminate Customer’s rights to use the Service if it does not receive the corresponding payment from the Channel Partner. If Customer is entitled to a refund under this Agreement, Splendr will refund any applicable fees to the Channel Partner and the Channel Partner will be solely responsible for refunding the appropriate amounts to Customer, unless otherwise specified.
(b) Relationship with Splendr. This Agreement is directly between Splendr and Customer and governs all use of the Service by Customer. Channel Partners are not authorized to modify this Agreement or make any promises or commitments on Splendr’s behalf, and Splendr is not bound by any obligations to Customer other than as set forth in this Agreement. Splendr is not party to (or responsible under) any separate agreement between Customer and Channel Partner. The amount paid or payable by the Channel Partner to Splendr for Customer’s use of the applicable Service under this Agreement will be deemed the amount paid or payable by Customer to Splendr under this Agreement for purposes of Section 12 (Limitations of Liability). Splendr is not responsible for any acts, omissions, products or services provided by Channel Partner.
18. GLOSSARY
The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of this Agreement.
“Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with a Party, provided such entity will be considered an Affiliate for only such time as such control interest is maintained; where “control” means the ownership of greater than fifty percent (50%) of (i) the voting power to elect directors of the company, or (ii) the ownership interests in the company.
“Confidential Information” means information disclosed by or on behalf of one Party (as discloser) to the other Party (as recipient) under this Agreement, in any form, which (a) the discloser identifies to recipient as “confidential” or “proprietary” or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Splendr’s Confidential Information includes the Service, any technical, pricing or performance information about the Service, and any information conveyed to Customer in connection with Support. Customer’s Confidential Information includes Customer Data and Customer Materials.
“Customer Data” means information processed by Splendr via the Service and while providing Support.
“Customer Materials” means materials and resources that Customer makes available to Splendr in connection with Technical Services.
“Documentation” means the Splendr standard technical guides, policies, and documentation for the Service that are made available from the dedicated ‘Support Hub’ pages within the Service or are otherwise provided to Customer by Splendr.
“Force Majeure” means an unforeseen event beyond a Party’s reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, third-party Internet, telecommunications or utility failure, acts or orders of government, refusal of government license or natural disaster, where the affected Party takes reasonable and customary measures to avoid or mitigate such event’s effects.
“Order” means an order for Customer’s access to the Service, Support, or Technical Services or related services that is: (1) is either executed by the Parties and references this Agreement or entered into by Customer via self-service, or (2) is entered into by Splendr and a Channel Partner on behalf of Customer.
“Service” means Splendr’s proprietary software-as-a-service products, as identified in the relevant Order, including any modifications, updates, upgrades, and enhancements thereto. The Service includes the Documentation but not Technical Services or Third-Party Platforms.
“Service Operations Data” means Splendr’s technical logs, analytics or other data and learnings related to Customer’s use of the Service, but excluding Customer Data.
“Subscription Term” means the term for Customer's use of the Service as set forth on the applicable Order.
“Support” means reasonable technical support services to assist customers with the use and operation of the Service, including access to Documentation, but excludes any Technical Services.
“Technical Services” means training, migration, enablement or other technical services that Splendr furnishes to Customer related to the Service.
“Third-Party Platform” means any product, add-on or platform not provided by Splendr that Customer uses with the Service.
“Trials and Betas” mean access to the Service (or Service features) on a free, trial, beta or early access basis.
“Users” means individuals or entities that are authorized by Customer to use the Service under its account and on its behalf.