SPATIALNOTE TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE (THE “TERMS”) CAREFULLY. IF YOU ELECTRONICALLY ACCEPT THESE TERMS, EXECUTE AND DELIVER THESE TERMS, OR OTHERWISE USE THE SPATIALNOTE SERVICES OR SOFTWARE (COLLECTIVELY, THE “SERVICE”), YOU AGREE TO BE BOUND BY ALL OF THESE TERMS (THE “AGREEMENT”) AS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND AITOC, INC., THE MAKERS OF SPATIALNOTE (“SPATIALNOTE”). IF YOU DO NOT ACCEPT THE TERMS, YOU ARE NOT PERMITTED TO USE THE SERVICE. If you are entering this Agreement as an employee or representative of your employer, the term “you” includes your employer and any other party on whose behalf you act. If your organization has entered into a separate purchase agreement with SpatialNote, then that agreement supersedes these Terms of Service to the extent that they conflict.
1. Provision of Service. This Agreement governs your use of SpatialNote’s website and SpatialNote’s provision of its web based note-taking software as a service (the “Service”) to you. Your use of the website and Service are at all times subject to these Terms of Service and your payment in full of any applicable fees.
2. Software License. Subject to the terms of this Agreement, SpatialNote grants you a non-exclusive, revocable, non-transferable license to use the Service and any upgrades and updates made available by SpatialNote from time to time, solely during the Term (as defined herein). SpatialNote also grants you a non-exclusive, revocable, non-transferable license to use the accompanying documentation (“Documentation”) during the Term in connection with your use of the Service. You acquire no right, title, or interest to the Service, the underlying software, or the Documentation except the limited license described in this paragraph. SpatialNote reserves the right to terminate, discontinue temporarily or permanently modify the Service and its availability to at any time without notice.
3. Your Systems and Existing Cloud Accounts. The Service allows for the organization of user provided information and other data (your “Information”). By entering into this Agreement, you agree to provide and allow SpatialNote access to your Information to provide the Service to you, and you represent and warrant that you have the right to grant this access to SpatialNote. You are solely responsible for the set-up, maintenance, and security of your Information outside of SpatialNote.
4. Software Upgrades. By subscribing to the Service, you agree that SpatialNote may update and upgrade the Service from time to time.
5. Your Information; SpatialNote Confidentiality Obligation. In providing the Service to you, SpatialNote will provide access to and the ability to arrange and display your Information. Except as provided in these Terms of Service, SpatialNote does not collect any information relating to your Information. You agree that SpatialNote may analyze, store and modify Information for the sole purpose of delivering the Service to you. You represent and warrant that, to the extent required, you have obtained all necessary rights and licenses to your Information for use as contemplated by these Terms and that SpatialNote’s use of such Information as set forth herein will not violate any third party rights, including intellectual property and privacy rights. SpatialNote will not disclose your Information to any third party except SpatialNote employees and contractors who have entered into binding agreements with SpatialNote that contain non-disclosure obligations who have a need to know this information for the purposes of providing the Services. SpatialNote may anonymously aggregate non-identifiable Information with non-identifiable anonymous meta-data from other SpatialNote customers and third parties to create anonymous aggregated meta-data that pertain mainly to the usage of the Service and does not identify any individual customer or the metrics or information pertaining to any individual customer (“Aggregated Meta-Data”). SpatialNote will own all rights to Aggregated Meta-Data, and has the irrevocable right to maintain, store, use and disclose Aggregated Meta-Data.
6. Restrictions. You may NOT: (i) provide access to the Service to third parties, or use the Service for the benefit of third parties; (ii) copy or modify all or any part of the Documentation or distribute it to third parties; (iii) unless otherwise permitted by applicable local law, decompile, decrypt, disassemble, reverse engineer or otherwise discover the source code for the software underlying the Service (the “Software”), or attempt to disable or defeat any locking mechanism within the Software or the Service; (v) modify the Software or Service, incorporate the Software or Service in whole or in part in any other product or create derivative works based on all or any part of the Software or Service; and (vi) remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Service. You acknowledge that the Software and Service are subject to United States export laws and regulations and you shall comply with all such laws and regulations in your use of the Software and Service.
7. Ownership, Non-Disclosure. SpatialNote owns and will retain all right, title and interest, including without limitation all copyright, trademark, trade secret, patent and other proprietary rights, in and to the Service, Software, Documentation, and Aggregated Meta-Data (the “Proprietary Materials”). You shall keep confidential and not disclose, sell, lease, transfer, sublicense, dispose of, or otherwise make available the Proprietary Materials or any portion thereof, in source or object code, to any third party other than your employees who need access to the Proprietary Materials in order to use the Service and exercise your license rights granted herein. You agree that dissemination of the Proprietary Materials in breach of this Agreement would cause irreparable harm to SpatialNote for which monetary compensation alone would be inadequate, and SpatialNote is entitled to seek injunctive relief prohibiting any such dissemination, in addition to monetary damages and all other remedies available at law or in equity. This Agreement is NOT a sale of the Proprietary Materials or any copy of them. You obtain only such rights as are expressly provided in this Agreement.
8. Cloud Hosting. SpatialNote shall host the Software and Services remotely with a reputable third party with published policies, and use such third party’s server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs for delivery of the Services (such third party, a “Cloud Provider”, and such services, the “Cloud Provider Services”). You acknowledge that the Services and Software is currently hosted by the Cloud Provider, and that SpatialNote may choose to use some other provider at any time. Your use of the Services shall be subject to any applicable restrictions of the Cloud Provider and the Cloud Provider Services, including the Cloud Provider’s Acceptable Use Policy and other policies. Notwithstanding any other provisions herein, you acknowledge that SpatialNote shall not be liable for any problems, failures, defects or errors with the Services, to the extent that they are caused by the Cloud Provider or the Cloud Provider Services. You acknowledge the fees payable for the Services reflect the fact that SpatialNote is not responsible for the acts or omissions of the Cloud Provider.
9. Access. You will need a user name and password to use the Service. You must safeguard your user name and password and keep them confidential, and you will be responsible for any use of the Service by means of your user name and password.
11. Feedback. Upon request by SpatialNote, you agree to provide SpatialNote with reasonable information about your use and evaluation of the Service, including, without limitation, any errors, logs, usage statistics or problems in the Service and any information reasonably necessary for SpatialNote to evaluate such errors or problems, test results and performance data, information relating to the compliance of the Service with documentation, specifications or functionality and comparison with other software or products (collectively, “Evaluation Data”). Without limiting the foregoing, you irrevocably consent to SpatialNote’s collection of Evaluation Data and any other information and data relating to your use of the Service, by various means (including without limitation through the Service and through any direct communications between you and SpatialNote), without any further notice to, or consent of, you.
12. Payment of Fees; Taxes. You shall pay SpatialNote the fees specified in accordance with the subscription table and the subscription level chosen by you at [http://www.spatialnote.com/pricing] or as set forth on the applicable order form executed by and between you and the SpatialNote. Prices of all Services, including but not limited to all subscription fees are subject to change upon 30 days’ notice from SpatialNote, with such notice being provided via the Service or posted on the SpatialNote Website. You acknowledge that if your usage at any time during the term of this Agreement extends beyond the subscribed limits of your plan, the fees payable shall be automatically adjusted to the fees payable for such increased usage. If you have pre-paid fees, the incremental fees due to the additional usage shall remain payable. Invoices are due thirty days from date of invoice. You agree to pay a late charge of one and half percent (1 1/2%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts not paid when due. Amounts set forth on the subscription table excludes taxes. You will be solely responsible for, and will promptly pay, all taxes of any kind (including but not limited to sales and use taxes) associated with the Service, except for taxes based on SpatialNote’s net income. You agree to pay reasonable attorneys’ fees and court costs incurred by SpatialNote to collect any unpaid amounts owed by you.
13. Termination and Suspension. These Terms takes effect on the effective date as set forth on the subscription table and shall continue until completion of the period of performance set forth therein (or any extension thereof agreed by the parties) (the “Order Term”). Notwithstanding the foregoing, SpatialNote will have the right to terminate this Agreement if you breach any material term of this Agreement and fail to cure such breach within thirty (30) days after written notice thereof. You may terminate this Agreement at any time at which time your cancellation will take effect immediately and you will not be charged for monthly subscription fees following the month you cancelled or terminated your account. You must terminate this Agreement by cancelling your account via your online account settings that enables a simple “no-questions-asked” cancellation process. You may not terminate this Agreement via a phone call or email request. SpatialNote may terminate this Agreement immediately if you become the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. In addition to the foregoing, SpatialNote also reserves the right, in its sole and absolute discretion, to suspend providing you access to the Services at any time, without having to terminate this Agreement, if you are more than thirty (30) days late with respect to any payments due hereunder. Upon such suspension, you shall still be liable for all payments that have accrued prior to the date of suspension. SpatialNote will not be obligated to restore access to the Services until you have paid all fees owed to SpatialNote. All Information and other information related to your use of the Services shall be deleted upon termination of this Agreement and cannot be recovered. You are responsible for maintaining backups to your Information on sources unrelated to SpatialNote and the Service.
14. U. S. Government Users. Pursuant to the policy stated at 48 CFR 227.7202-1, U.S. Government users acknowledge that (i) the Software is commercial computer software, (ii) this Agreement embodies the licenses customarily used by SpatialNote for licenses in Software granted to the public, and (iii) the licenses set forth herein shall apply to all possession, use and duplication of the Software by the Government, except to the extent which such licenses are inconsistent with Federal procurement law. Contractor/manufacturer is AITOC, Inc., 113 Barksdale Professional Center, Newark, DE 19711.
16. Additional Support for Paying Customers. If you are not using the free version of the Software, depending on your subscription level you will be entitled to certain support services detailed in connection with your use of the Services detailed at [spatialnote.com/support].
17. Limited Warranty and Disclaimer. SpatialNote warrants that, during the period that you have paid applicable fees and remain in compliance with this Agreement, the Service will operate in substantial conformance with the documentation provided by SpatialNote. SpatialNote’s sole responsibility and your sole remedy for any failure of the Service to conform to this warranty shall be SpatialNote’s commercially reasonable efforts to remedy any error in the Service so as to conform to the warranty within a reasonable time after you notify SpatialNote of the error, or, in the event that SpatialNote is unable to remedy the error, SpatialNote shall refund to you the fees paid by you, if any, with respect to the period during which the Service failed to operate in accordance with the limited warranty. Neither SpatialNote nor its licensors make any warranties with respect to third party software included in the Software. EXCEPT FOR THE FOREGOING WARRANTY, SPATIALNOTE PROVIDES THE SERVICE AND SOFTWARE TO YOU “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY SPATIALNOTE EMPLOYEE, REPRESENTATIVE OR DISTRIBUTOR SHALL CREATE A WARRANTY FOR THE SERVICE OR SOFTWARE, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. SPATIALNOTE’S LICENSORS EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE. IN NO EVENT SHALL SPATIALNOTE BE LIABLE FOR ANY BREACH OF THIS AGREEMENT TO THE EXTENT SUCH BREACH IS OUTSIDE ITS REASONABLE CONTROL.
18. Limitation of Liability. IN NO EVENT SHALL SPATIALNOTE OR ITS LICENSORS OR ANY OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR OTHER AFFILIATES BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION THE COST OF COVER, DAMAGES ARISING FROM LOSS OF DATA, USE, PROFITS OR GOODWILL), WHETHER OR NOT SPATIALNOTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SPATIALNOTE’S MAXIMUM LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR YOUR USE OR POSSESSION OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY AND ALL CLAIMS COMBINED, WILL NOT EXCEED THE AMOUNT OF THE FEES YOU HAVE PAID FOR THE SERVICE PROVIDED UNDER THIS AGREEMENT. THE CONSIDERATION TO BE RECEIVED BY SPATIALNOTE HEREUNDER DOES NOT INCLUDE COMPENSATION FOR ASSUMING OR INSURING ANY OF THE RISKS AND LIABILITIES DISCLAIMED BY SPATIALNOTE. THE LIMITATIONS AND DISCLAIMERS PROVIDED IN THIS SECTION ARE INTENDED TO PREVAIL OVER ANY PROVISION HEREIN TO THE CONTRARY.
20. Applicable Law and Jurisdiction; Compliance. All disputes arising out of or relating to this Agreement, shall be resolved exclusively by binding arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect and the further procedures set forth herein. (For information on the AAA and its rules, see www.adr.org.) The arbitration shall be conducted in Boston, Massachusetts, unless the Arbitrator shall determine that that venue is not reasonably convenient to all parties, in which case the Arbitrator shall determine another venue that is. In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have authority to issue any and all remedies authorized by law. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 2 et seq., and the laws of the Commonwealth of Massachusetts without reference to principles of conflicts of laws. Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and YOU HEREBY WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to these terms and conditions, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Following confirmation of an arbitration award in a state or federal court in Boston, Massachusetts, a judgment arising therefrom may be executed in any court of competent jurisdiction. Notwithstanding the above, this section shall not prevent SpatialNote from seeking an injunction, or other equitable relief, in any court of competent jurisdiction.
21. Complete Agreement. Except as expressly provided herein, this Agreement constitutes the entire agreement between you and SpatialNote in relation to the Service, and supersedes all proposals, oral or written, all negotiations, conversations, discussions and all past course of dealing between you and SpatialNote relating to the Service and Software, and may only be modified in writing signed by you and SpatialNote. You may not assign this Agreement or any right or license hereunder without the prior written consent of SpatialNote. In the event any term of this Agreement is held by a court of competent jurisdiction not to be enforceable, the remaining terms shall survive and be enforced to the maximum extent permissible by law. No waiver of any right or obligation contained herein shall be given except in writing signed by the party against whom the waiver is sought to be enforced.