Searchspring Service Terms

The Searchspring services are provided for Customer’s use on the condition that Customer agrees to these Service Terms.  The individual who agrees to these Service Terms on behalf of Customer represents to Searchspring that they have the authority to agree to these Service Terms on behalf of Customer. 

Searchspring Service Terms

These Searchspring Service Terms (these “Service Terms“) are between B7 Interactive, LLC dba Searchspring (“Searchspring“) and the individual, company, or other legal entity that submits an Order for Searchspring’s services (“Customer“).

Capitalized words in these Service Terms have special meanings as stated in the section where they are first used, or as defined in Section 12 (Definitions).

Searchspring may modify these Services Terms at any time, but modifications are not effective for Orders that are in place prior to the modification until the Order renews or Customer adds new services to Customer’s account. See the Section 11.20 (Changes to Online Service Terms).

1. Services and Support.  

1.1  Services.  Searchspring will provide the Services for the Term, on the terms, conditions and restrictions stated in the Agreement.  Searchspring will use commercially reasonable efforts to make the Services available 24 x 7, year round, excluding downtime for maintenance and emergencies.  If Customer’s Order includes a reference to a Service Level Agreement or “SLA,” Searchspring will meet the commitments stated in the SLA.

1.2  Support.  Searchspring will provide access to online support materials, and will respond to Customer’s requests for reasonable technical assistance via chat during its standard support hours, currently Monday at 10:00 a.m. to Friday at 6:00 p.m., United States Central time, excluding federal public holidays in the United States and other Searchspring announced support holidays.

1.3  Professional Services.  Searchspring offers custom configuration and other professional services for an additional fee.  Any professional services are provided on the terms stated in the applicable Statement of Work and the Professional Services Addendum attached to these Service Terms.

2. License. Customer is licensed to use the Searchspring Technology made available to Customer as part of the Services on a non-exclusive, limited term basis for the e-commerce website(s) identified by domain name in the Order.  Customer’s license is non-transferable except as part of an assignment of the Agreement that is permitted by Section 11.11 (Assignment).  Customer’s license is sub-licensable only to Customer’s Authorized Users, subject to all of the terms of this license.  Customer’s license is worldwide, subject to applicable export laws. Customer’s license may be terminated or suspended prior to expiration on a termination of the Agreement in accordance with Section 10 (Term, Termination, and Suspension).

3. Conditions and Restrictions. Searchspring provides the Services and the Searchspring Technology subject to the following conditions and restrictions:

i. Service Limitations.  Customer may not use the Services other than for the e-commerce website(s) at the domain name(s) expressly identified in the Order;

ii. No Resale of Services. Customer may not resell the Services;  Customer may not use the Services for the benefit of any person other than Customer and Customer’s Affiliates;

iii. Modifications. Customer may not modify or create derivative works of the Services or Searchspring Technology;

iv. Competing Services. Customer may not access the Services or Searchspring Technology for the purpose of creating a competing service.

v. No Benchmarking. Customer may not publish any benchmarking or other performance analysis of the Services or Searchspring Technology.

vi. No Reverse Engineering.  Customer may not disassemble, decompile, reverse engineer or attempt to discover any underlying algorithm or method embodied by the Searchspring Technology except to the extent applicable permits this activity despite this restriction, and then on thirty (30) days advance written notice to Searchspring.

vii. No Assignment, Transfer or Sublicensing.  Except as expressly permitted in this Agreement Customer may not sublicense, transfer, or assign the license.

4. Integration Features. The Service includes integration features that enable Customer to use the Service with third party services BigCommerce®, Magento®, Miva®, Shopify®, and others.  Searchspring does not endorse or recommend any service for which it offers an integration feature. If the third-party service provider changes it services or API, Searchspring will use commercially reasonable efforts to modify its integration feature to maintain uninterrupted compatibility.  However, if the third party makes a change without advance notice, Searchspring may not be able to modify its integration feature to avoid a disruption of the integration feature. If the third party makes a change that creates an unreasonable cost or operational burden to Searchspring to maintain an integration feature, Searchspring may discontinue the integration feature.  Searchspring will use commercially reasonable efforts to give Customer reasonable advance notice of discontinuance of an integration feature. If Searchspring discontinues an integration feature that is material to Customer’s use of the Services, Customer may elect to terminate Customer’s Agreement without liability by giving notice of termination no later than thirty (30) days following the date that the integration becomes unavailable.

5. Ownership of Data.

5.1  Customer Data.  As between Customer and Searchspring, data about Customer, Customer’s website, and Customer’s website users is “Customer Data.” As between Customer and Searchspring, Customer owns and retains ownership and all rights in Customer Data and Searchspring may use Customer Data only for the purpose of providing the Services to Customer and exercising Searchspring’s legal rights and remedies in connection with the Agreement.    For clarity, “Customer Data” does not include: (i) system generated data about Customer’s use of the Searchspring Services, such as resource utilization or Customer’s administrative users’ behavior, or (ii) Aggregate Data as defined below.

5.2  Aggregate Data.  Searchspring may aggregate data generated by Customer’s use of the Searchspring Services, including data about Customer Data, with similar data of other Searchspring customers, and use and disclose the resulting data sets and insights derived from the analysis of the resulting data sets (“Aggregate Data”) to provide its services, improve its products, and manage its business generally, provided that: (i) if the data used to create the Aggregate Data includes any personal data Searchspring either excludes this data from the data set, or de-identifies the data in accordance with applicable regulatory standards, and (ii) Searchspring removes from the data set any information that identifies Customer.

6. Fees and Payments

6.1  Fees. The fees for the Services are stated in Customer’s Order, either directly or by reference to a description on the Searchspring website.  Searchspring may not increase the fees during the initial term of an Order, but may increase its fees for any renewal term by giving Customer notice of the increase at least thirty (30) days prior to the first day of the renewal term.  Any discounts stated in an Order apply for the initial term only, unless otherwise stated in the Order. Invoicing and payment terms are stated in the Order, or if no invoicing or payment terms are stated Searchspring my charge Customer monthly in advance for fixed recurring fees, monthly in arrears for variable, usage based fees, and on or after the Order effective date for any set-up or other non-recurring fees.  For fees based on a usage metric, such as product count or session count, Searchspring may charge for use that exceeds the metric (and any buffer percentage allowed by the Order) at the overage rate stated in the Order, or may move the account to a service plan that corresponds to the higher use levels, at its option. Searchspring’s waiver of overage fees for one or more billing periods is not a waiver for any subsequent billing periods.

6.2  Payment Account. Unless Customer has made other arrangements with Searchspring, Customer must authorize and maintain a current valid means for Searchspring to collect its fees for the Services via payment card, PayPal, or ACH at all times during the Term.

6.3 Sales Tax. The stated fees do not include any sales, use, VAT or like taxes (“Sales Tax”). Customer must pay any applicable Sales Tax that is properly charged by Searchspring.

6.4 Overdue Payments.  Searchspring may suspend or terminate Customer’s Services or the Order if its charge to Customer’s payment card or account is rejected or not timely paid for any reason. Searchspring may charge interest on overdue amounts at the lesser of 1.2% per month or the highest non-usurious amount permitted by applicable law. If Searchspring takes legal action to collect an overdue amount, Customer must also pay Searchspring’s reasonable costs of collection, such as attorney fees and court costs. If Searchspring suspends Customer’s account for late payment, Customer must pay Searchspring’s reasonable reinstatement fee.

6.5 General. Fees are non-refundable, even if Customer does not use the Services.  Fees are stated and must be paid in United States Dollars. On Searchspring’s request, Customer shall provide information reasonably requested by Searchspring to correctly calculate the fees, such as access to Google® Analytics data.  Customer may not use the Services in a way that undermines Searchspring’s ability to correctly calculate its fees.

7. Customer’s Obligations

7.1 Fees. Customer must pay Customer’s fees when due as described above for the Term. Customer must not use or attempt to use the Services in a way that undermines Searchspring’s ability to correctly calculate its fees.

7.2 Customer’s Security Obligations. Customer must use reasonable security precautions in connection with Customer’s use of the Services, such as requiring Customer’s Authorized Users to establish reasonably secure passwords and using commercially reasonable efforts to protect Customer’s systems and data from malware. Customer is responsible for the use of the Services by any person who gains access to the Services as a result of Customer’s failure to use reasonable security precautions, or who uses credentials established by Customer or Customer’s Authorized Users.

7.3 Authorized Users.  Customer may authorize as Services users Customer’s employees and individual contractors, and the employees and individual contractors of Customer’s Affiliates or any contractors that  Customer retains to provide Services to Customer in support of Customer’s internal business operations (each an “Authorized User”).  Customer is responsible for the actions of Customer’s Authorized Users.  Customer authorizes Searchspring to act on the instructions of a user who authenticates using the account credentials Customer or Customer’s Authorized Users have established.  Customer is solely responsible for maintaining the user permissions and authentication credentials for Customer’s account, such as disabling the access of individuals who are no longer authorized by Customer to use the Services.

7.4 Acceptable Use. Customer may not use the Services or permit Customer’s users to use the Services in violation of the AWS Acceptable Use Policy at, or in connection with any illegal or abusive activities, as determined by Searchspring in its reasonable discretion.

7.5 Backups. Customer must maintain a backup of Customer Data at reasonably secure location other than the Services environment.

7.6 Disruptive Use.  Customer may not use the Services in a way that disrupts or undermines the integrity of the Searchspring services environment or the use of Searchspring’s services by its other customers.

7.7  Compliance with Law. Customer must use the Services in compliance with applicable law, including export laws as further detailed in Section 11.8 (Export Compliance).

7.8 Representations and Warranties. Customer represents and warrants to Searchspring as of the effective date of each Order and on an ongoing basis that: (i) the information Customer submits about Customer and Customer’s activities to establish a Services account with Searchspring and place an Order is true, correct, and complete, (ii) Customer has not been the target of any legal or regulatory investigations or proceedings in connection with Customer’s business activities related to Customer’s use of the Services; (iii) Customer’s website and related activities are not subject to any special regulatory scheme, such as those applicable to personal health information (e.g. the Health Insurance Portability and Accountability Act or “HIPAA”) or consumer lending or insurance (e.g. Graham-Leach-Bliley);  (iv) Customer has complied with applicable laws and regulations in the collection and development of Customer Data, including any notice and consent requirements applicable to personal data under applicable privacy law, and (v) each third party service provider with whom Customer interacts using the Services has given Customer any permissions or licenses that may be required for Customer’s interaction with them using the Services.

8. Term, Termination, Suspension

8.1 Term.  The initial term of each Order begins on Order effective date and continues for the period stated in the Order.  On expiration of the initial term, the Order renews for consecutive renewal terms of the twelve (12) months each, unless either Customer or Searchspring gives a notice of non-renewal at least thirty (30) days prior to the last day of the initial term or then current renewal term, as applicable.

8.2 Termination. Either party may terminate an Order, or the Agreement, on written notice if the other party is in material violation of any term of an Order or these Service Terms, provided that if the violation is curable the terminating party must first give the other party a written notice describing the violation in reasonable detail and at least ten (10) business days to cure the violation.  Customer may terminate an Order or the Agreement without liability if there are three (3) or more events giving rise to a credit under the SLA during any thirty day period, provided that notice of termination on this grounds must be given no later than thirty (30) days following the occurrence of the third event.

8.3 Suspension. Searchspring may suspend Customer’s access to the Services during any period that Customer is in material breach of the Agreement or Customer’s access to the Services creates a material security vulnerability. Searchspring will give Customer at least two (2) business days’ advance notice of the suspension, unless the suspension is made under emergency circumstances. Searchspring will reinstate Customer’s access to the Services when the grounds for suspension are cured unless Searchspring has already terminated the Agreement as described in this Section.

8.4 Surviving Provisions. The following sections survive expiration or termination of the Agreement: Fees and Payment, Confidentiality, Indemnification, Limitation of Liability, Term and Termination, Ownership of Data, Suspension, Governing Law, Disputes, Notices, General, and any other terms that by their nature are intended to survive expiration or termination.

9. Remedies, Disclaimers, Indemnification, Limitations

9.1 Service Not Designed for Sensitive Data.  The Services are not designed for the processing of sensitive or special categories of personal data or data that is subject to special regulatory schemes, such as protected health information under HIPAA.  As between Searchspring and Customer, Customer is responsible for risks that may arise if its website users enter this kind of data into a search field or take other actions that create or submit data of this type for processing by Searchspring.

9.2  Warranty Disclaimer.  Except for any commitments stated in an applicable SLA, the Searchspring Services are provided AS ISSearchspring disclaims any implied warranties, such as a warranty of merchantability, fitness for a particular purpose, and non-infringement, and any representation or warranty that may arise through a course of dealing. Customer acknowledges that the use of the Service may not be uninterrupted, error free, or completely secure.  Customer represent that Customer has not relied on any representation or warranty other than those stated in the Agreement.

9.3  Indemnification by Customer. Customer agrees that if a third party asserts a legal claim against Searchspring or any of its officers, members, managers, employees, staff, personnel, agents, licensors or suppliers (each a “Searchspring Person“) arising from Customer’s violation of the  Agreement, including Customer’s breach of a representation or warranty, or Searchspring’s processing of data of the type described in Section 9.1, Customer will pay all reasonable costs of defending the claim, including reasonable attorney fees, and pay any damages awarded to the third party or paid to the third party by Searchspring as a reasonable settlement. Customer agrees that Searchspring may control the defense of the claim at its option, or may require Customer to defend the claim directly. If Searchspring elects to control the defense of the claim, Customer will reimburse Searchspring for its reasonable defense costs and expenses as incurred.

9.4  Indemnification by Searchspring.  Searchspring agrees that if a third party asserts a legal claim against Customer or any of its Authorized Users’  (the “Customer Persons”) asserting that Customer Persons’ use of the Services as permitted by the Agreement infringes or violates the third party’s patent, copyright, trade secret or other intellectual property right recognized in the United States, Searchspring will defend the claim at its expense, and pay any damages finally awarded to the third party by a court having jurisdiction over the claim or paid to the third party by Searchspring as a settlement.  Customer agrees that Searchspring will have the right to select counsel to defend the claim and control the defense of the claim. Customer may participate in the defense of the claim with counsel of its choice at its option and expense. Customer will cooperate with Searchspring’s reasonable requests for information and assistance in connection with the defense of the claim. Searchspring agrees that it will not settle a claim under this Section without Customer’s consent unless it fully resolves the liability of the Customer Persons and does not require any of them to make an admission of liability.  Customer agrees that if a claim covered by Searchspring’s obligations under this Section is asserted, or is reasonably probable of assertion in Searchspring’s judgment, Searchspring may terminate the Services on reasonable advance notice without liability to Customer except to refund pre-paid fees for unused services periods. Notwithstanding anything to the contrary in this Section 9.4, Searchspring’s obligations do not extend to any claim arising from Customer’s use of Professional Services or Deliverables, as those terms as defined in the Professional Services Addendum, unless otherwise stated in the applicable Statement of Work, to Customer’s use of the Services in a way that is not reasonably contemplated by Searchspring’s services documentation, or to Customer’s use of a prior version of the Services if a subsequent version would have avoided the claim.

9.5  Limitation of Liability. In the event Customer has a legal claim against any of the Searchspring Persons arising under or in connection with the Agreement, the Services, or the Professional Services or Deliverables, Customer agrees that the maximum total amount of money Customer can recover from any or all of them cannot exceed the amount of fees Customer has paid or that are payable for Services for the twelve (12) months prior to the date the claim arose, unless the legal claim is based on a Searchspring Person’s intentional misconduct or is for personal injury or death resulting from the negligence, recklessness or intentional misconduct of a Searchspring Person. In addition, Customer agrees that in no event is Customer entitled to recover any lost revenue, lost profits, damages for lost data, or any indirect or consequential loss or damages or any kind.

9.6  General. Customer acknowledges that Searchspring has set its fees and entered into the Order in reliance on the limitations of remedies and liability stated in these Terms, and that these limitations reflect an agreed allocation of risk between Customer and Searchspring. The limitations stated in this Section shall apply to any liability arising from any cause of action whatsoever, whether in contract, tort, commercial code, strict liability or otherwise, even if a limited remedy fails of its essential purpose. If these limitations as written are not permitted by applicable law, they shall apply to the extent permitted by applicable law.

10.  Early Access Services.  Searchspring may invite Customer to test “early access” features or services at no charge. “Early Access Services” are those features or services designated as test, beta, pilot, limited release, developer preview, non-production, early access, evaluation or with a similar description. Early Access Services are for evaluation purposes, are not “Services” under this Agreement, are not supported, and may be subject to additional terms.  Searchspring may discontinue Early Access Services at any time in its sole discretion and may never make the Early Access Services generally available. If a generally available version is released, there may not be an automatic update path from the early access version to the generally available version. If not earlier terminated, any Early Access Services use period will expire on the date that the Early Access Service is released on a generally available basis. Early Access Services are provided AS IS, and Searchspring has no liability for any harm or damage arising out of or in connection with Customer’s use of an Early Access Service. Searchspring may terminate an Early Access Service and delete Customer’s files and related information at any time, for any or no reason.

11.  General Terms

11.1 Rights in Technology/Intellectual Property. Customer may not copy any part of the Services or mirror the Services on any site or system, except that Customer may download and print copies of documentation for the Services as reasonably necessary for Customer’s permitted use of the Services, provided that Customer use the documentation in the exact form published, retain all branding and proprietary notices, and do not transfer the documentation to any other person. Customer may not remove any proprietary notices displayed on the documentation or other Services materials. Except for rights expressly granted in this Agreement, Searchspring retains all right, title and interest in and to its Services, Searchspring Technology, and Searchspring website content and all related intellectual property rights. No rights in intellectual property may arise by implication or estoppel.

11.2 Feedback. Customer hereby license to Searchspring any feedback or suggestions that Customer provide regarding the Services or Searchspring’s other existing or proposed products or services on a perpetual, irrevocable, royalty free, worldwide, unconditional, fully sublicensable and transferable basis, including the right to make, have made, use, sell, offer to sell, import, copy, display, perform, modify, distribute in modified or unmodified form, and commercialize any intellectual property, without accounting to Customer.

11.3 Confidential Information. means any non-public information that a party (the “recipient”) receives from or learns about the other party (the “discloser”) as a result of activities contemplated by the Agreement that the recipient should reasonably understand to be confidential, given the nature of the information or the circumstances of its disclosure, but not including any information that is developed by the recipient independently and without reference to the discloser’s Confidential Information, or information that is or becomes available from a source other than recipient so long as the source did not, to recipient’s knowledge, acquire the information as a result of a violation of a duty of confidentiality to discloser.  For example, non-public information Customer learns about Searchspring or its Services as part of the relationship contemplated by this Agreement is Searchspring’s Confidential Information. Customer Data is Customer’s Confidential Information. Recipient agrees not to use or disclose the discloser’s Confidential Information except to provide or use the Services, as applicable, or to exercise legal rights or obligations in connection with the Agreement. Recipient shall use reasonable care to protect the discloser’s Confidential Information from unauthorized use and disclosure. Searchspring’s use of reasonable care as to Customer’s Confidential Information that is part of Customer Data is met by the use of the safeguards described in the Security Materials. Recipient shall return or destroy the discloser’s Confidential Information (including that part of the Confidential Information that is “Customer Data”) on termination of the Agreement, except as necessary for reasonable and customary business record-keeping purposes.  Recipient is responsible for a breach of this Section by any person to whom it has disclosed the discloser’s Confidential Information to the same extent as for its own breach of this Section. Notwithstanding the foregoing, Searchspring may disclose Customer’s Confidential Information in response to a subpoena, request from law enforcement, or as otherwise required by law.

11.4  Security. On request, Searchspring will make available its materials describing its security safeguards and related audit and compliance reports (the “Security Materials”). Customer acknowledges that the Security Materials are Searchspring’s sensitive Confidential Information and may be shared only with Customer’s personnel and professional advisors and consultants on a need-to-know basis. Searchspring is not responsible to Customer or Customer’s users for any harm or damage resulting from a security incident except to the extent the security incident resulted from Searchspring’s failure to provide use commercially reasonable security safeguards.  Customer acknowledges that the measures described in the Security Materials are commercially reasonable as to the risks and potentially vulnerabilities covered by those measures. Customer is responsible for determining if Searchspring’s security safeguards meet any regulatory requirements applicable to Customer and otherwise meet Customer’s business and security requirements.

11.5  Governing Law. The Order and these Services Terms are governed by and should be interpreted under the laws of the State of Texas, and the United States of America, as applicable, without giving effect to any conflicts of law principles that would require the application of the law of a different jurisdiction. The parties expressly and irrevocably disclaim and waive the application of the United Nations Convention on Contracts for the International Sale of Good and the Uniform Computer Information Act.

11.6 Notices. Customer’s notices must be submitted via ticket on the customer portal. Searchspring’s notices to Customer must be given to Customer’s primary account contact at the email address in the Searchspring portal. If Customer sends a notice of breach of the Agreement, a legal dispute, a legal claim, or other legal matter, Customer must copy Customer’s notice to, and must also send Customer’s notice via first class United States mail to Searchspring’s physical address appearing on its website on the day the notice is transmitted electronically. Searchspring’s legal notices to Customer must be copied via first class United States mail to Customer’s physical notice address, or if Customer’s physical address is outside of the United States, via a reputable and established international priority mail service on the date the notice is transmitted electronically. Notices are deemed given, received and effective as of the time transmitted by electronic mail, or if that time does not fall on a business day, as of the beginning of the first business day following the time transmitted. Notices must be given in the English language. A party may change its address for notice by giving notice in the manner stated in this Section.

11.7  Disputes

11.7.1 Mediation.  Except for a request for temporary injunctive or other equitable relief, each party agrees that it shall not file a lawsuit or other legal action in connection with this Agreement unless it has first given the other party written notice of the dispute, and attempted to resolve the dispute through good faith negotiation.  At the request of either party, the dispute will be submitted for non-binding mediation conducted by a mutually acceptable mediator in Bexar County, Texas. The mediator will be chosen by mutual agreement of the parties within twenty-one (21) days after written notice by either party demanding mediation. Neither party shall unreasonably withhold or delay consent to the selection of a mediator. The parties will share equally the costs of the mediation, exclusive of any fees paid by a party to its internal or external legal advisors, accountants and experts in connection with the dispute. The use of any mediation procedures will not be construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of either party.  If the dispute is not resolved through negotiation or mediation within forty-five (45) days of the date of the initial demand for mediation, the parties are free to file a lawsuit or other action.

11.7.2  Jurisdiction, Venue.  Each party agrees that it shall bring any lawsuit or other legal action related to this Agreement in the State or Federal courts sitting in Bexar County, Texas.  Neither party shall dispute the personal jurisdiction of such courts, and each party waives any objection it may have as to the venue of such court.

11.7.3  Waiver of Jury Trial.  To the extent permitted by applicable law, each party waives the right to a trial by jury in respect of any litigation arising out of this Agreement and the parties’ activities regarding this Agreement.

11.7.4  Time Bar.  A party may not bring an action in relation to this Agreement more than two (2) years after the date that the cause of action accrued.

11.8 Export Compliance. Customer may not permit users to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation, or in a manner that causes Searchspring to be in violation of U.S. export laws, even if the use is permitted the laws applicable to Customer or Customer’s users. For example, Customer may not authorize any person to use the Services that is on the list of Specially Designated Nationals and Blocked Persons issued by the U.S. Treasury Department’s Office of Foreign Asset Control (OFAC) or who is located in or is a national of any country that is embargoed under United States export laws; and Customer may not use or permit the use of the Services to process or store any data that is subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State, or permit the use of the Services by any person who Customer know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, or sounding rockets, or unmanned air vehicle systems. Each party represents that it is not on any restricted persons list maintained by the U.S., Canada, or any member of the European Union.

11.9 Anti-Corruption. Each party represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from the other’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either party learns of any violation of the above restriction, it will promptly notify the other party.

11.10 Force Majeure. Except for Customer’s payment obligations, neither party is in violation of the Agreement if the failure to perform is due to an event beyond that party’s reasonable control, such as a significant failure of the power grid or Internet, denial of service attacks, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other acts or events for which precautions are not generally taken in the industry.

11.11 Assignment. Neither party may assign the Agreement in whole or in part, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Orders), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

11.12 Publicity. Searchspring may identify Customer in its marketing and sales materials, and may include Customer’s Marks in an appropriate area of its website and marketing materials, provided that it does not state or imply that Customer endorse the Searchspring Services.  Searchspring will use and display Customer’s Marks in accordance with Customer’s trademark usage guidelines communicated to Searchspring in writing. Any goodwill accruing from Searchspring’s use of Customer’s Marks shall accrue to Customer.

11.13 Relationship of the Parties. The parties are independent contractors. Neither party is the agent of the other, and neither party is authorized to make any representations, contract, or commitment on behalf of the other. The use of the words “partner” or “partnership” in this Agreement or otherwise refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between the persons described as partners. The parties do not agree to any exclusivity in regards to the subject matter of this Agreement and each party is free to contract with third parties, including competitors of the other party, for transactions of the type covered by this Agreement in any market, worldwide.

11.14 Interpretations. (i) In calculating any period of time under this Agreement, the day of the act, event or default from which the designated period of time begins to run is not to be included. (ii) The term “person” refers to any legal person, and may mean a natural person (individual), a legally created person (such as an entity, trustee, or executor), or an entity (such as a corporation, partnership, or limited liability company). (iii) The word “personnel” refers to a person’s employees and individual contractors who are under the person’s direct supervision. (iv) The use of the word “including” should be read to mean “including, without limitation.” (v) All references to monetary amounts mean United States Dollars. (vi) The term “parties,” either in lower- or upper-case form, refers to the persons who are parties to this Agreement. (vii) For notice purposes, the words “business day,” “business hours,” or the like means Monday – Friday, 9:00 a.m. – 5:00 p.m., United States Central Time, excluding federal public holidays in the United States. (viii) A reference to “day” shall mean a calendar day, unless expressly designated as a “business” day. (ix) All software and other technology provided for Customer’s use is licensed and not sold; any references to a sale or purchase of software or other technology means the sale or purchase of a subscription. (x) Any requirement in this Agreement that a statement be written, in writing, or a like requirement is satisfied by an email or other digital form of writing unless expressly stated otherwise. (xi) Nouns stated in the singular imply the plural as indicated by the context, and pronouns that are gender specific refer to either gender. (xii) The Section captions in the Agreement are for convenience only; they are not part of this Agreement and may not be used to interpret the terms of the Agreement.

11.15 Third-Party Beneficiaries. There are no third-party beneficiaries under the Agreement.

11.16 Severability. In the event one or more of the terms of this Agreement are adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret the Agreement as if such terms had not been included, or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the Agreement.

11.17 Changes to the Services. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Searchspring regarding future functionality or features. Customer acknowledges that Searchspring may modify or suspend any of its Services offerings at any time. If a modification or suspension materially and adversely affects Customer’s use of the Services, Customer may terminate the Agreement by giving written notice of the change no later than 30 days following the date of the change and receive a refund of any prepaid fees for unused services as Customer’s sole and exclusive remedy.

11.18 General Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

11.19 Representation by Individual Submitting the Order. If an individual submits an Order, the individual represents that: (i) if the individual submits the Order on his or her own behalf (including as a sole proprietor), the individual is old enough to enter into contracts and otherwise has the legal capacity to enter into contracts under applicable law; or (ii) if the individual submits the Order on behalf of a company or other legal entity, the individual has the legal power and authority to bind that entity to the Order and these Service Terms.

11.20 Changes to Online Service Terms. Searchspring may amend these Services Terms at any time in its sole discretion. Any amendment will become effective as to Customer’s Order on the first renewal of the Order that follows the publication of the amendment by at least thirty (30) days. If the amendment materially and adversely impacts Customer’s use of the Services, Customer may terminate the Agreement by giving written notice no later than thirty (30) days following the date the amendment is published and receive a refund of prepaid fees for unused Services as Customer’s sole and exclusive remedy.

11.21 Waiver.  No right or remedy arising regarding this Agreement shall be waived by a course of dealing between the parties, or a party’s delay in exercising the right or remedy.  A party may waive a right or remedy only by signing a written document that expressly identifies the right or remedy waived. Unless expressly stated in the waiver, a waiver of any right or remedy on one occasion will not be deemed a waiver of that right or remedy on any other occasion, or a waiver of any other right or remedy

11.22  Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Customer and Searchspring regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of these Service Terms or an Order will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any preprinted term or condition stated in any business form is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, (2) these Services Terms, and (3) the Services documentation. Customer’s use of the Services, both during any free use period and Customer’s paid term, is subject to all of the terms, conditions, and restrictions stated in the Agreement and any restrictions stated on a page on the Searchspring website that is part of Customer’s Order.

12. Definitions.

Capitalized terms have the meaning stated below or in the section where they are first used.

  • Affiliate means Customer’s subsidiaries, parent company, and members of Customer’s corporate family so long Customer control the entity, are controlled by the entity, or are under common control with the entity; for this purpose “control” means the right to vote a majority of the equity securities of the entity or to otherwise control the management or policies of the entity.
  • Agreement refers collectively to Customer’s Order(s) and these Terms of Service.
  • Authorized Users has the meaning given in Section 7.3 (Authorized Users).
  • Customer Data has the meaning given in Section 5.1 (Customer Data).
  • Mark(s) means trademarks and service marks, such as trade names, logos, and similar indicia.
  • Order means either of the following that have been signed or submitted by Customer, and accepted by Searchspring: (i) an order form provided to Customer by Searchspring for Customer’s signature, or (ii) a web form that Customer submits on the Searchspring website.
  • Security Materials has the meaning given in Section 11.4 (Security).
  • Services means Searchspring’s search, merchandising, recommendation, analytics and other online application services described in an Order, as well as its standard implementation support and ongoing technical support for the online Services.
  • Searchspring Technology means Searchspring software and services technology, including interfaces, management tools, and analytics tools used by Searchspring to provide the Services, all related software, documentation, all modifications and derivative works of any of them, and all related intellectual property rights worldwide.
  • Statement of Work or SOW means a statement of work that describes Searchspring’s customization or other professional services to be provided to agreed specifications that has prepared by Searchspring for Customer’s signature, has been signed and returned by Customer, and has been signed or otherwise accepted by Searchspring.
  • Term means the initial term and any renewal terms, collectively.