END USER SUBSCRIPTION AGREEMENT
This End_User Subscription Agreement (the “Agreement”) is between Spearstone LLC, a Utah S Corporation, located at 333 South 520 West Suite 180, Lindon, UT 84042 (“Spearstone”) and the Subscriber named on an Order Form (including the on-line Order Form) between Subscriber and Spearstone. The terms of this Agreement shall apply to the Services provided and Client Software licenses granted under the Order Form and this Agreement. When completed and executed by both parties, an Order Form and this Subscription Agreement shall evidence the subscription for Services and the license of the Client Software to be provided.
- SERVICES SUBSCRIPTION. The Services comprise the Services described in one or more Order Forms (which may include on-line Order Forms) that reference these Terms and Conditions and use of Client Software required to access the Services. Subject to Subscriber’s completion of the applicable Order Form, acceptance of this Agreement and payment of the subscription fee, as applicable, Spearstone grants to Subscriber the nonexclusive right, subject to the terms and conditions of this Agreement, to (a) install and use the Client Software in conjunction with the Services solely for Subscriber’s business purposes, which Client Software and Services, as such terms are used herein, include any future updates, upgrades or enhancements for which Subscriber may become eligible; (b) use the Services solely for Subscriber’s business purposes; and (c) copy the Client Software for device and data loss protection purposes.
Except as otherwise provided in this section, no additional copies of the Client Software shall be made without Spearstone’s prior written consent. All titles, trademarks, copyrights and restricted rights notices shall be reproduced in such copies. All archival and backup copies of the Client Software are subject to the terms and conditions of this Agreement.
Subscriber acknowledges and agrees that use of the Services may include transmission and storage of data through one or more Spearstone hosting servers. Data stored on or relayed through a Spearstone hosting service is transmitted in encrypted form and is handled in a manner consistent with accepted standards for secure transmission of materials over the internet.
Subscriber agrees to assume full administrative and financial responsibility for the management of Services on all accounts, and systems for which the Services have been ordered, including without limitation, addition, modification, and deletion of accounts; management of Services available to each account; and the use of the remote data destruction security capability offered as part of the Services. Subscriber further assumes full administrative and financial responsibility, as described above, for any person(s) to whom Subscriber grants administrator privileges or to whom such administrators grant additional administrator privileges.
- RIGHTS AND OBLIGATIONS. Spearstone retains all title, copyright and other proprietary rights in the software and hardware, including but not limited to the Client Software, used to provide the Services. Subscriber does not acquire any rights, express or implied, in the Client Software or other software or hardware used to provide the Services or the Services other than those specified in this Agreement. Subscriber agrees that it will not use the Services for any illegal activity or other activities prohibited by applicable international, federal, state or local laws and regulations. Subscriber agrees to fully comply with all federal, state and local privacy laws in connection with use of the Client Software and the Services. Spearstone shall have the right to monitor use of the Services by Subscriber, subject to the confidentiality provisions set forth herein.
- SUBSCRIBER HARDWARE AND SOFTWARE. Subscriber agrees to use hardware, operating systems and applications software compatible with the Client Software and the Services, as specified in Spearstone’s system requirements on Spearstone’s website (www.drivestrike.com), including the proper use of security and encryption functions available to Subscriber in such hardware, operating systems and applications software.
- PRE-PRODUCTION CLIENT SOFTWARE OR SERVICES. As an accommodation to Subscriber, Spearstone may supply Subscriber with or allow access to pre-production releases of the Client Software or the Services (which may be labeled “Alpha” or “Beta” or otherwise identified as pre-production versions). Pre-production releases of the Client Software and the Services are provided “AS-IS” and are not covered by any warranty, express or implied, and are not intended for production use. Pre-production releases of the Client Software and the Services are provided without additional charge for demonstration and trial use of the Client Software and the Services and may expire automatically at the end of a pre-determined trial period or upon notice from Spearstone.
- RESTRICTIONS. Subscriber may not directly, or permit others to, (a) disassemble, decompile or otherwise derive source code from the Client Software or other software used to provide the Services; (b) reverse engineer the Client Software or the Services; (c) modify or prepare derivative works of the Client Software or the Services; (d) copy the Client Software, except as expressly permitted in this Agreement; (e) rent or lease the Client Software or the Services; (f) use the Client Software or the Services in any manner that infringes the intellectual property or other rights of another party; or (g) transfer the Client Software or any copy thereof or access to the Services to another party without the express prior written consent of Spearstone.
- OWNERSHIP. Subscriber acknowledges and agrees that Spearstone and its licensors own the Client Software and the Services and any other software and hardware used to provide the Services, together with all trade secrets, copyrights, patents and other intellectual property rights related thereto.
- WARRANTY DISCLAIMER. SPEARSTONE PROVIDES THE CLIENT SOFTWARE AND SERVICES “AS-IS” AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- LIMITATION OF LIABILITY. SPEARSTONE SHALL NOT BE LIABLE FOR ANY DAMAGE OR LOSS, WHETHER DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL (INCLUDING LOST PROFITS), ARISING OUT OF OR RESULTING FROM SUBSCRIBER’S POSSESSION OR USE OF THE CLIENT SOFTWARE OR THE SERVICES (INCLUDING DATA LOSS, CORRUPTION OR COMPROMISE OF DATA SECURITY), REGARDLESS OF WHETHER SUCH LIABILITY IS BASED IN TORT, CONTRACT OR OTHERWISE AND WHETHER OR NOT SUCH LOSS IS FORESEEABLE. IF THE FOREGOING LIMITATION IS HELD TO BE UNENFORCEABLE, SPEARSTONE’S MAXIMUM LIABILITY TO SUBSCRIBER SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY SUBSCRIBER FOR THE CLIENT SOFTWARE AND THE SERVICES DURING THE PREVIOUS SIX (6) MONTH PERIOD. THE REMEDIES AVAILABLE TO SUBSCRIBER UNDER THIS AGREEMENT ARE EXCLUSIVE. THE PARTIES AGREE THAT THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN SPEARSTONE AND SUBSCRIBER AND THAT SPEARSTONE’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY AND DESIGNATION OF EXCLUSIVE REMEDIES SPECIFIED HEREIN.
- TERM AND TERMINATION. This Agreement is effective upon Subscriber’s assent to its terms and conditions in the manner specified above and shall continue for the agreed-upon subscription period set forth in the Order Form and any renewals unless otherwise terminated as provided hereunder. Spearstone may terminate this Agreement immediately upon Subscriber’s breach of the obligations set forth in Sections 2, 5 or 10 of the Agreement or in the event of Subscriber’s bankruptcy, insolvency or equivalent circumstance. Spearstone may also terminate this Agreement if Subscriber breaches any other material term of this Agreement and such breach is not cured within thirty (30) days of notice thereof. Upon any such termination, Spearstone may immediately cease providing the Services, and Subscriber agrees to promptly delete all copies of the Client Software and the Documentation, and any portions thereof, from the computer(s) on which they are installed, destroy all such copies and verify such actions to Spearstone in writing.
- CONFIDENTIALITY. By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Confidential Information includes, without limitation, the Client Software, the terms and pricing under this Agreement and all information clearly identified as confidential or reasonably deemed to be confidential based on the circumstances and industry practices.
A party’s Confidential Information shall not include information that (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party.
The parties agree to hold each other’s Confidential Information in confidence during the term of this Agreement and thereafter. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Each party agrees that remedies at law may not be adequate to protect the rights of the other party under this Section 10 and that a non-breaching party may seek injunctive or other equitable relief to enforce such rights.
- INDEMNITY. Subscriber agrees to indemnify Spearstone and hold it harmless with respect to any and all claims, causes of action or damages arising as a result of Subscriber’s breach of its obligations under this Agreement.
- GOVERNMENT USE/EXPORT ASSURANCES. Any Client Software or Services obtained from Spearstone for or on behalf of the United States of America or its agencies (“U.S. Government”), is provided with restricted rights. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in DFARS 252.227-7013 (Rights in Technical Data and Computer Software) or 46 CFR 52.227-19 (Commercial Computer Software Restricted Rights), as applicable. Manufacturer is Spearstone, LLC, 333 South 520 West Suite 180, Lindon, UT 84042. Subscriber may not download or otherwise export or re-export the Client Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations, including without limitation, the United States Export Administration Act, the Trading with the Enemy Act, the International Emergency Economic Powers Act and any regulations related thereto. Any transfer of technical data outside the United States by any means, including the Internet, is an export that is subject to export control requirements under United States law. By downloading, installing or using the Client Software or Services, Subscriber agrees to the foregoing and Subscriber represents and warrants that Subscriber is not located in, under the control of or a national or resident of any prohibited country or territory.
- ASSIGNMENT. Subscriber may not assign any rights under this Agreement to another party without Spearstone’s prior written consent, which shall not be unreasonably withheld. Any such unauthorized assignment shall be void. Spearstone may assign this Agreement to any successor or affiliate.
- BILLING. Both Monthly and Annual plans are charged for an initial quota of devices, the higher of the number of devices selected upon signup or actual installations in the first month.All accounts are reviewed monthly to determine the highest number of simultaneously registered devices, establishing a “high-water” mark for the account.Monthly plans adjust up and down after reaching their initial quota, based on the devices active in the preceding month.
Annual plans that exceed their quota are charged a prorated amount so all devices renew on the account’s anniversary. Fluctuations below the “high-water” mark are not re-billed. Annual renewals are charged based on the number of active devices renewed.
- MISCELLANEOUS. This Agreement is governed by the laws of the State of Utah without regard to provisions pertaining to conflicts of law. If any provision of this Agreement is held to be unenforceable, the unenforceable provision shall be deemed stricken from this Agreement and the remaining provisions shall be enforced in accordance with their terms. In the absence of a written agreement duly executed by Subscriber and Spearstone that specifically supersedes or amends the terms of this Agreement, this Agreement is the complete agreement between Subscriber and Spearstone with respect to the Client Software and the Services. 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. Except for actions of nonpayment or breach of Spearstone’s proprietary rights in the Client Software and the Services as well as actions of breach of Sections 2, 5 or 10, no action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has occurred.
Questions concerning your Spearstone Agreement may be addressed to:
333 South 520 West Suite 180
Lindon, UT 84042
Tel: 877-375-2468 Fax: 888-918-9393.