Customer Agreement


Account Registration.

Services.  Spiio will provide its sensor monitoring services (“Services”) at Customer’s premises (“Customer Premises”) in conjunction with the Spiio products (“Products”) that Customer purchased pursuant to an order(s) it submitted to Spiio and/or a reseller of Spiio (“Order”).  Customer acknowledges and agrees that the terms herein, including but not limited to any limited warranty, apply to Products that Customer ordered prior to or after Customer accepts this Agreement and such Products will be subject to and governed by this Agreement. In the event of a conflict between this Agreement and any such Order, the terms and conditions in this Agreement will control over the terms and conditions in any Order. For purposes of this Agreement, any reference to Customer will include its Authorized Users (as defined below).   

Batteries.  Customer acknowledges and agrees that the Products include lithium batteries which are not manufactured by Spiio and which may fail without warning.  As between Customer and Spiio, Customer will be and hereby accepts full responsibility for learning how to properly use, store and otherwise handle such batteries.  

Registration of Authorized User(s). Customer is solely responsible for registering its personnel, independent contractors or other individuals that Customer wishes to authorize to use the Services and for whom Customer will be solely responsible (“Authorized Users”). Customer (a) will require any Authorized User (including any third parties) to comply with the terms of this Agreement; (b) will be responsible for Authorized Users performance and/or non-performance hereunder; (c) will be responsible for all communications with its Authorized Users and between Authorized Users and Spiio regarding the Services. 

Customer Premises.  Customer represents and warrants that it has the authority to enter into this Agreement and (a) Customer is not required to obtain approval from any lessor/owner of the Customer Premises with respect to Spiio providing Services at Customer Premises; or (b) Customer has obtained any such approvals in writing which may be necessary for Spiio to provide the Services at Customer Premises.  As between Spiio and Customer, Spiio will not be responsible, and will have no liability, for any liability for and/or damage to Customer Premises resulting from Customer use of the Products and Services.  

Customer Accounts. Customer will (a) provide and keep current accurate, current and complete information (“Registration Data”); (b) provide and keep current accurate payment information for purposes of paying Services Fees, and any other amounts owed under this Agreement; (c) maintain the security of Customer’s password(s), if any; (d) prior to providing personal data about Authorized Users obtain any necessary consents to share such data with Spiio for purposes of Spiio performing under this Agreement; and (e) accept all risks of unauthorized access to the Registration Data, and any other information Customer provides to Spiio. Customer will be fully responsible for activities or transactions that relate to Customer’s account, its Authorized User accounts, including but not limited to passwords, login credentials, API keys, Authorized User names, and other Authorized User information. Customer will assign a single user login to each Authorized User, such logins will not be shared or used by more than one Authorized User, provided that any user login may be reassigned to Authorized User as needed. Customer will notify Spiio immediately if Customer learns of any attempted or actual unauthorized use of any Customer accounts and/or passwords. 

Fees and Payment Terms.

Services Fees.  Customer will pay the fees for the Services, including but not limited to subscription fees and any additional fees (“Services Fees”) in advance or by the given due date.  For clarity, for each Renewal Term and as set forth in Customer’s account, Customer will pay Spiio’s then-current Services Fee for Services Spiio provides to Customer.  All payments will be made in U.S. Dollars (unless mutually agreed upon otherwise in writing) by using the payment methods that Spiio makes available. Services Fees are non-refundable. Spiio reserves the right to suspend, in whole or part, the provision of Services and/or the licenses granted herein upon Customer failing to timely pay applicable Services Fees by the applicable due date. Upon Spiio initiating collection proceedings, Customer will be liable for all collection and other costs incurred by Spiio, including without limitation, reasonable attorneys’ fees whether or not litigation is commenced. 

Other Terms. Interest on any amounts not paid by the applicable due date will be deemed a late payment and will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Customer will be responsible for, and will pay all sales and similar taxes, all license fees and similar fees levied upon the provision of the Services provided under this Agreement, excluding taxes based solely on Spiio’s net income. Customer will indemnify and hold Spiio harmless from and against any and all such taxes and related amounts levied upon the provision of the Services and any costs associated with the collection or withholding thereof, including penalties and interest.

Services and Product Restrictions.

Restrictions.  Except as expressly authorized herein, Customer (and for clarity, that includes Authorized Users) will not (a) modify, disclose, alter, translate or create derivative works of the Services and/or Products (or any components thereof); (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Services and/or Products (or any components thereof, respectively); (c) use the Services/underlying software on a timesharing or service bureau basis or otherwise for the benefit of a third party; (d) disassemble, decompile or reverse engineer the software components of the Services and/or Products (except to the extent and for the express purposes authorized by applicable law); (e) use the Services to store or transmit any content is comprised of or in any way includes personally identifiable information, as defined by applicable law; (f) remove, alter or obscure any proprietary notices, including copyright notices, in or on the Services and/or Products; (g) copy, frame or mirror any part or content of the Services; (h) build a competitive product or service, or copy any features or functions of the Services and/or Products; (i) detrimentally interfere with or disrupt the integrity or performance of the Services and/or Products; (j) attempt to gain or gain unauthorized access to the Services or their related systems or networks; (k) disclose to any third party any performance information or analysis relating to the Services and/or Products; (l) cause or permit any third-party to do any of the foregoing.  

Damaged Products. As between Spiio and Customer, Customer will be solely responsible for its actions and the actions of its Authorized Users while using the Products and/or Services.  Spiio will not be responsible, and will have no liability, for any theft, vandalism, destruction of, loss of and/or any other damage to the Products (“Damaged Products”). In the event Customer has Damaged Products, then Customer will be responsible for timely replacing the Damaged Products and Spiio will not be responsible for providing any refund/credit fees for Damaged Products.

Connectivity Between Products and Services. 

No Connectivity at Installation.  If after initially installing the Products at Customer Premises, the Products do not connect to Spiio Services solely due to lack of wireless coverage, then Customer may contact Spiio for purposes of returning the Products.  To receive a credit or refund, Customer will return such Products to the place of purchase (unless Spiio provides instructions otherwise) within six months of the date of purchase.  

Connectivity after Installation.  Customer accepts and acknowledges that Spiio Products and Services may be impacted by wireless connectivity to Products installed at Customer premises at any given time. Spiio relies on third party network services and coverage to provide its Services.  After Products are installed and connected to Spiio Services, Spiio, in its sole discretion, will determine if wireless connectivity at Customer Premises is sufficient for Spiio Services. Customer agrees and acknowledges that Spiio will not be responsible for any downtime and/or any issues related to data transmission, including no transmission, due to lack of or inadequate wireless coverage.  During the Term, if Product is not communicating for a minimum of 72 consecutive hours, then Customer may contact Spiio and request authorization to return the Products. Spiio, in its sole discretion, will determine if it will authorize Customer to return the Products from place of purchase for a pro rata credit or refund. If Product is purchased from a Spiio Reseller, then Customer will comply with additional return policies of the Reseller that also govern the conditions of the return.

Data and IP Ownership. 

Resultant Data” means information, data and other content that is derived by or through Customer’s use of the Services or from processing Customer Data and is sufficiently different from such Customer Data such that Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.

“Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer by or through the Services. 

Privacy Policy.  Customer acknowledges and agrees that Spiio monitors, collects, uses and stores Resultant Data and Customer Data as set forth in this Agreement and as set forth in Spiio’s Privacy Policy (https://spiio.com/privacy-policy).

Ownership & Cross-licenses. As between the parties, Spiio owns all right, titles and interest in Resultant Data, including any Intellectual Property Rights embodied in Resultant Data. Subject to the terms herein, including and not limited to the license granted below, payment of any applicable Services Fees, Spiio hereby grants to Customer a non-exclusive, non-transferable, revocable and limited license during the Term to access and use Resultant Data relevant to Customer solely for its internal business purposes. As between the parties, Customer owns all right, titles and interest in Customer Data, including any Intellectual Property Rights embodied in Customer Data.  Customer hereby grants to Spiio an irrevocable, perpetual, worldwide non-exclusive, fully paid-up license to use Customer Data in any manner whatsoever (a) as is necessary to provide the Services to Customer; and (b) for Spiio’s internal purposes, such as to aggregate the data with other data in order to gain insights into how to improve products and services.  For purposes of this Agreement, “Intellectual Property Rights” means all trademarks (including the goodwill attached thereto), know-how, copyrights, copyright registrations and applications for registration, patents, trade secrets, author’s rights, moral rights, right of publicity, and contract and licensing rights, and all other intellectual property rights, recognized in any jurisdiction, as may exist now and/or hereafter come into existence, and all renewals and extensions thereof, whether registered or not.

Spiio IP. The Services, including any data, materials, technology, software or other materials that comprise it, and the Products are protected by copyright, trade secret and other intellectual property laws and treaties and all title and Intellectual Property Rights in and to such are owned by and will remain the exclusive property of Spiio, its licensors and/or suppliers (“Spiio IP”). All rights not expressly granted herein are reserved. 

Term, Suspension and Termination.

Term. Unless terminated earlier as permitted herein, the term of this Agreement will commence on the date Customer accepts this Agreement and will remain in effect for twelve months (unless the parties agree otherwise) (“Initial Term”) and is non-cancellable.  Upon expiration of the initial term, this Agreement will automatically renew for additional one year non-cancellable periods (each a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either party gives the other party 90-day written notice of non-renewal prior to the end of the Initial Term or the then-current Renewal Term.  

Termination. Either party may terminate this Agreement, for cause, if the other party breaches this Agreement and does not remedy such failure within thirty (30) business days after its receipt of written notice of such breach. If Customer uses the Services in any unauthorized manner, Spiio may immediately terminate this Agreement for cause, and thereafter provide written notice to Customer.  

Suspension of Services.  Spiio reserves the right to suspend and deactivate without prior notice Customer’s access and use of the Services in the event of an actual or alleged breach of this Agreement, or actual or threatened breach of the security or integrity of the Services, or as reasonably necessary for exigencies as determined by Spiio in its sole discretion.  Spiio reserves the right to suspend the Services, in whole or part, if Customer does not pay Services Fee by the given due date. Spiio expressly disclaims and will not be responsible or liable for any damages that may occur as a result of such suspension. To the extent appropriate or feasible under the circumstances, Spiio will provide Customer with advance written notice of the suspension and will work to restore the Services as soon as practicable and with minimal disruption to Customer’s operations.  

Effect of Termination. Upon any termination of this Agreement: (a) all rights and licenses granted under the Agreement will immediately cease (other than perpetual licenses); (b) Spiio will deactivate the Services; and (c) Customer will immediately pay to Spiio any amounts due and payable up to the effective date of termination of this Agreement. Notwithstanding any terms to the contrary in this Agreement, Sections 2 (Fees and Payment Terms), 3 (Services and Product Restrictions), 5 (Data and IP Ownership), 6 (Effect of Termination), 8 (Disclaimer of Warranty), 9 (Limitation of Liability), 10 (Indemnification), 11 (Dispute Resolution and Governing Law) and 13 (Miscellaneous) will survive any termination of the Agreement. 

Product Replacements.

Product Warranty.  Spiio provides a limited warranty for the hardware in its Products solely for the continuous period during which Customer subscribes to this Agreement for the Services for the given Products (“Warranty Period”). During the Warranty Period, Spiio warrants the Products will comply in all material respects with published specifications, respectively (“Limited Warranty”).  If a Product is not in conformance with the Limited Warranty above, then prior to the expiration of the Warranty Period, Customer will describe in reasonable detail how the Product failed to be in conformance as further specified in Spiio’s Product Return Directions, which are hereby incorporated by reference, and available at this link: www.spiio.com/warranty (“Product Return Directions”).  Customer will comply with the Product Return Directions, and acknowledges and agrees that Spiio may modify the Product Return Directions during the Term without providing notice of such changes to Customer. Unless stated otherwise in the Product Return Directions, Customer will be responsible for returning the given Products. If a Product is covered by a warranty, then the given Product will be repaired or replaced (“Replacement Product”) and Replacement Products will be provided or shipped to Customer. Replacement Products may be new, reconditioned, refurbished, re-manufactured or functionally equivalent and will be furnished only on an exchange basis.  Returned Products that are replaced will become Spiio’s property. Replacement Products are warranted for the same Warranty Period as the original Product.   

 Exclusive Remedies for Product WarrantyTHIS REMEDY WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR NONCONFORMANCE OF WARRANTIES SET FORTH IN THIS SECTION AND WILL BE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES CUSTOMER MAY HAVE AGAINST SPIIO WITH RESPECT TO SUCH NONCONFORMANCE OF PRODUCTS.

Battery Replacements. During the Warranty Period, if a battery fails to charge a Product, then Customer may contact Spiio as set forth in the Product Return Directions at www.spiio.com/warranty.  Spiio, in its sole discretion, will determine if it will authorize Customer to return the given Product for a replacement.  Customer agrees that the applicable terms in the Product Return Directions will apply. Any returned Products will become Spiio’s property.

DISCLAIMER OF WARRANTIES.

1) CUSTOMER ACKNOWLEDGES AND AGREES THAT (I) THE SERVICE MAY BE IMPACTED BY ENVIRONMENTAL CONDITIONS AND/OR INSTALLATION RELATED CONDITIONS WHICH MAY IMPACT THE ACCURACY OF THE DATA GENERATED BY THE SERVICE; AND (II) CUSTOMER WILL NOT RELY SOLELY ON THE DATA GENERATED FROM THE SERVICE. 

SPIIO DISCLAIMS AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND VERIFICATION OF ANY RESULTS OBTAINED WITH THE PRODUCTS AND SERVICES.

2) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SPIIO WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES ARISING OUT OF OR RELATING TO: (I) DAMAGE TO THE PRODUCTS, WHETHER INTENTIONAL OR UNINTENTIONAL, WHETHER BY CUSTOMER OR A THIRD PARTY, THAT RESULTS IN DAMAGE TO CUSTOMER PREMISES, PROPERTY AT CUSTOMER PREMISES OR PERSONS AT CUSTOMER PREMISES; (II) ANY CONNECTION TO, OR RESULTS OF ANY INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; (B) SERVICE LEVELS, DELAYS OR INTERRUPTIONS (EXCEPT WHERE A CREDIT IS EXPLICITLY PERMITTED);  (III) ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF PRODUCTS, DATA, CUSTOMER PROPERTY AND/OR CUSTOMER PREMISES. DUE TO THE COMPLEXITY OF TECHNOLOGY, SPIIO DOES NOT, AND CANNOT, WARRANT THAT SERVICES WILL BE UNINTERRUPTED AND/OR ERROR-FREE.

ALL SPIIO PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  CUSTOMER ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SPIIO MAKES NO GUARANTEES, CONDITIONS, COVENANTS, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY REPRESENTATION OR WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.   

3) BETA/EVALUATION: NO WARRANTY.  During the Term, as part of the Services, Spiio may include features and/or functionality that are offered on a beta basis (“Beta Service”). IN ADDITION TO BEING SUBJECT TO THE DISCLAIMER OF WARRANTY ABOVE, THE BETA SERVICE MAY CONTAIN DEFECTS AND A PRIMARY PURPOSE OF THE BETA TESTING IS TO OBTAIN FEEDBACK ON PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. CUSTOMER IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE BETA SERVICE AND/OR ACCOMPANYING MATERIALS. Additionally, Customer acknowledges and agrees that if it elects to use Beta Service, it does so at its own risk, and that Spiio does not provide any support or maintenance for such services.

LIMITATION OF LIABILITY.  

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SPIIO BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SPIIO’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO SPIIO DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.

THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

THE FOREGOING LIMITATION OF DAMAGES IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND CUSTOMER ACKNOWLEDGES AND AGREES THAT SPIIO WOULD NOT BE ABLE TO PROVIDE THE SERVICE ON AN ECONOMIC BASIS WITHOUT SUCH LIMITATIONS.  

Indemnification.

Customer will indemnify and defend Spiio and its affiliated entities, and their respective employees, directors, officers, shareholders, agents, suppliers and permitted assigns from any damages, losses, liabilities, costs and expenses (including, but not limited to, reasonable attorneys’ fees) related to claims, demands, charges or investigations by third parties, arising out of or in connection with Customer’s use of the Services/Products or Customer’s alleged or actual breach of this Agreement. In no event will Customer settle any claim without Spiio’s prior written approval. Spiio reserves the right, without waiving any rights to indemnification, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, without the prior written consent to Customer. All indemnification obligations will continue in effect even after, and notwithstanding, any expiration or termination of this Agreement. 

Dispute Resolution and Governing Law. 

Binding Arbitration.  Any dispute arising out of or relating to this Agreement which is not resolved by the parties will be resolved by final and binding arbitration conducted in Santa Clara, California under the then current Commercial Dispute Resolution of the American Arbitration Association (“AAA”); provided however, either party retains the right to apply to any court of competent jurisdiction worldwide to protect and enforce its intellectual property and other rights. For avoidance of doubt, either party retains the right to apply to any court of competent jurisdiction worldwide to protect and enforce its intellectual property and other rights and arbitrator is not vested with the authority to do so. The arbitration will be conducted by one arbitrator and knowledgeable in the subject matter which is at issue in the dispute and who is selected by mutual agreement of the Parties or, failing such agreement, will be selected according to the AAA rules. The arbitrator will render a written opinion including findings of fact and law, and the award and determination of the arbitrator will bind the parties and will not be subject to an appeal. The arbitrator will be able to decree any and all relief of an equitable nature, including but not limited to such relief as a temporary restraining order, a preliminary injunction, a permanent injunction, or replevin of property.  The arbitrator will be able to award damages only if consistent with the terms of this Agreement. The decision of the arbitrator will be final and may be sued on or enforced by the Party in whose favor it runs in any court of competent jurisdiction at the option of such Party. The Parties will have such discovery rights as the arbitrator may allow. The parties will share equally the expenses of the arbitration, such as the arbitrator’s fees. 

Governing Law; Enforcement. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law rules. All rights and remedies of the Parties, under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately.  The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies. The provisions of Section (Dispute Resolution and Governing Law) may be enforced by any court of competent jurisdiction, and the Party seeking enforcement will be entitled to an award of all costs, to be paid by the Party against whom enforcement is ordered.  For any action arising from or related to this Agreement for which arbitration is not required, the state or federal courts in Santa Clara, California, will have exclusive jurisdiction, and the parties hereby expressly consent and submit themselves solely to the personal jurisdiction and venue of such courts.

Remedies.  Customer acknowledges that its breach of the licenses and license restrictions contained herein may cause irreparable harm to Spiio, the extent of which would be difficult to ascertain.  Customer accordingly agrees that, in addition to any other remedies to which Spiio may be legally entitled, it will have the right to seek immediate injunctive relief in the event of a breach of such sections by Customer. For avoidance of doubt, an arbitrator is not vested with the authority to determine Spiio’s request for such relief. 

Electronic Notices, Electronic Access, Electronic Signature. 

CUSTOMER AGREES TO TRANSACT WITH SPIIO ELECTRONICALLY.  All notices permitted or required, including notices of address change, will be sent to Customer Primary Contact via the Spiio app.  Customer will provide notice to Spiio at the following address: support@spiio.com and as set forth above.  An electronic notice will be deemed to have been received on the day of receipt as evidenced by the Spiio app or any such email.   

Miscellaneous.

Entire Agreement. This Agreement (including any terms and conditions incorporated into this Agreement by reference) set forth in the entire agreement and understanding of the parties relating to the subject matter hereof, and supersede all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom.

Independent Contractors. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.  

Assignment. Customer may not assign, delegate or transfer (by sale, merger, operation of law or otherwise) this Agreement or any right, title, interest or obligation hereunder without the prior written consent of Spiio. Any attempted or purported assignment, delegation or transfer in violation of the foregoing will be null and void and without effect. Spiio may assign this Agreement without the Customer’s prior written consent. This Agreement will be binding and inure to the benefit of such assignees, transferees and other successors in interest of the parties, in the event of an assignment or other transfer made consistent with the provisions of this Agreement.

Force Majeure. Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), national emergencies, catastrophe, sabotage, riots or wars, embargo, epidemics, viruses, strikes work stoppages or other labor difficulties, civil disturbances, disruption of utility or transmission failures, disruption of power or other essential services, interruption or termination of service (including, hosting services) by any service providers being used by Spiio, vandalism, computer viruses or other similar occurrences, governmental acts or orders or restrictions, and/or any malicious or unlawful acts of any third party, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the non-performing party (“Force Majeure Event”). In the event of a threatened default or default as a result of any of the above causes, the defaulting party will exercise its best efforts to avoid and cure such default.  In the event such an event prevents performance thereunder for a period in excess of ninety (90) days, then the non-defaulting party may elect to terminate this Agreement and/or cancel or suspend any services/orders by a written notice to the defaulting party.

Severability. If any provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.

No Third Parties. Except as expressly set forth or referred to in this Agreement, nothing in this Agreement is intended or will be construed to confer upon or give to any entity other than the Parties to this Agreement, their successors and permitted assigns, if any, any rights or remedies under or by reason of this Agreement.

Feedback.  Notwithstanding any terms to the contrary in this Agreement, in the event Customer provides any comments, suggestions, data or any other information to Spiio with respect to Spiio’s products and/or Services, including without limitation, any Beta Service (“Feedback”), (a) such Feedback will constitute Spiio confidential information; and (b) Customer hereby assigns all right, title, and interest in and to the Feedback, including without limitation, any Intellectual Property Rights, to Spiio. 

###


Effective Date: April 16th, 2020

Last Updated Date: April 16th, 2020