Spinup Terms of Service
These Terms of Service are between SpinUp, and the customer ordering the Services (”Customer”) each a “party” and together the “parties”.
1. DEFINED TERMS
The defined terms in Section 1 shall be applicable to the Agreement
- “Affiliate” as to Customer means, any legal entity that Customer owns, that owns Customer, or that is under its common control with Customer,; and as to SpinUp means SpinUp Cloud, LLC and any entity that is directly or indirectly controlled by SpinUp Cloud, LLC. As used in this definition, “control” means control of more than a 50% interest in an entity.
- “Agreement” means, collectively, these Terms of Service, the AUP, any Order, and any other addenda which govern the provision of Services.
- “AUP” means SpinUp’s Acceptable Use Policy found at www.spinup.com/information/legal/aup.
- “Business Day” means Monday through Friday, excluding public holidays, in the country whose laws govern the Agreement.
- “SpinUp” means the SpinUp Affiliate identified in the Order, or if none is identified: SpinUp Cloud, LLC, a Delaware Limited Liability Company with principal offices at: 125 Belmont Drive, Somerset, NJ 08873.
- “Confidential Information” means non-public information disclosed by one party to the other in any form that: (i) is designated as “Confidential”; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either party’s products, customers, marketing and promotions, know-how, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure.
- “Customer Configuration” means an information technology system (hardware, software and/or other information technology components) which is the subject of the Services or to which the Services relate.
- “Customer Data” means all data which Customer receives, stores, or transmits on or using the Customer Configuration.
- “Data Center Network” means a network used to interconnect devices within a data center.
- “Open Source Software” means open source software including Linux, OpenStack, and software licensed under the Apache, GPL, MIT, or other open source licenses.
- “Order” means the document or web page describing the Services Customer purchases, and any online order, process, API, or tool through which Customer purchases, Services.
- “Renewal Term” means a fixed term extension of the Order term.
- “Representatives” means a party’s respective service providers, officers, directors, employees, contractors, Affiliates, suppliers, and agents.
- “Security and Privacy Practices” means SpinUp’s Global Security and Privacy Practices found at www.spinup.com/information/legal/securitypractices.
- “Sensitive Data” means any: (i) personally identifiable information or information that is referred to as personal data (including sensitive personal data); PII (or other like term) under applicable data protection or privacy law and includes information that by itself or combined with other information can be used to identify a person; (ii) financial records; and (iii) other sensitive or regulated information.
- “Services” means the SpinUp services identified in a specific Order.
- “Third-Party Software” means software applications or services sourced from a third-party and used in connection with the Services.
- “SpinUp Control Panel” means the SpinUp website used by Customer to manage the Services
- “Test Services” means those Services designated by SpinUp as “Test”, “Pre-Release, “Limited Availability” or with like designation in an Order.
2.1. SpinUp’s obligation to provide Services is contingent on verification that Customer at all times satisfies SpinUp’s credit approval criteria. Customer remains liable for the acts and omissions of Customer’s end users.
2.2. Customer may not use the Services in any situation where failure or fault of the Services or the Customer Configuration could lead to death or serious bodily injury of any person or, physical or environmental damage.
2.3. Customer may access the Services via the SpinUp Control Panel, the SpinUp mobile application, or via a SpinUp-provided API. SpinUp may modify The SpinUp Control Panel or API at any time, or may transition to a new API. Customer agrees that SpinUp may establish new procedures for Customer’s use of the Services, as SpinUp deems necessary for the optimal performance of the Services. Customer’s use of any API, code, or Software Development Kit downloaded from the SpinUp website is governed by the terms and conditions included with the code in the file named “COPYING”, “LICENSE” or like caption and the terms of the Agreement. The Agreement includes any Services which Customer provisions through the SpinUp Control Panel or an API.
2.4. Customer agrees that SpinUp may migrate the Customer Configuration or the Customer Data within or between data centers if SpinUp determines doing so is necessary to remediate service degradation or shared resource constraints or for the optimal performance of the Services. If such migration will result in Customer’s Customer Data residing in a data center in a different country SpinUp shall give Customer at least 30 days advance notice.
2.5. If Customer provisions additional Services, such Services are subject to the terms of the Agreement.
3. CUSTOMER OBLIGATIONS
Customer shall cooperate with SpinUp’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement. Customer is responsible for keeping its account permissions, billing, and other account information up to date. Customer’s use of the Services must comply with the AUP. Customer agrees that it is solely responsible for the suitability of the Services and Customer’s compliance with applicable laws, including export laws and data privacy laws.
SpinUp shall provide the Services in accordance with the Security and Privacy Practices and any additional security specifications identified in the Agreement. Customer shall use reasonable security measures and precautions in connection with its use of the Services. Customer Data is, and at all times shall remain, Customer’s exclusive property. SpinUp shall not use or disclose Customer Data except as materially required to perform the Services or as required by law.
5. Intellectual Property
5.1. Open Source. In the event SpinUp distributes, or otherwise provides for Customer’s use, any Open Source Software to Customer as part of the Services, such Open Source Software is subject to the terms of the applicable open source license. To the extent there is a conflict between this document and the terms of the applicable open source license, the open source license shall control.
5.2. Third-Party Software. SpinUp may provide Third-Party Software for delivery of, or Customer’s use with, the Services. Unless otherwise permitted by the terms of the applicable license, Customer may not: (i) assign, grant, or transfer any interest in the Third-Party Software to another individual or entity; (ii) reverse engineer, decompile, copy, or modify the Third-Party Software; (iii) modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Third-Party Software; or (iv) exercise any intellectual property rights reserved to the third party under the laws governing the Agreement. Customer may only use Third-Party Software provided for Customer’s use as part of the Services on the Customer Configuration on which it was originally installed, subject to any additional restrictions identified in the Agreement. Customer shall not be permitted to access any Third-Party Software which SpinUp installs solely to assist SpinUp’s delivery of the Services. Upon termination of the Agreement, Customer shall permit removal of any Third-Party Software installed by SpinUp or its Representatives on the Customer Configuration. SpinUp makes no representation or warranty regarding Third-Party Software except that SpinUp has the right to use or provide the Third-Party Software.
5.3. Customer Provided Licenses. If Customer uses any non-SpinUp provided software on the Customer Configuration, Customer represents and warrants to SpinUp that Customer has the legal right to use the software. On SpinUp’s request, Customer shall certify in writing that Customer is in compliance with the requirements of this Section and any other software license restrictions, and shall provide evidence of Customer’s compliance as SpinUp may reasonably request. If Customer fails to provide the required evidence of licensing to SpinUp, and continues to use the software, SpinUp may suspend or terminate the applicable Services.
6. SERVICE LEVEL AGREEMENTS (“SLA”)
6.1. Cloud SLAs. SpinUp guarantees that Customer’s SpinUp Cloud Servers, Block Storage, Load Balancers, Object Storage, and Databases (“Infrastructure Services”) will be available 99.99% of the time in any given monthly billing period. SpinUp guarantees that our Data Center Network will be available 100% of the time in any given monthly billing period. The Data Center Network will be deemed available unless a SpinUp Cloud Server is not reachable due to Data Center Network downtime. If SpinUp fails to meet these guarantees, Customer will be eligible for a pro-rated credit based on the portion of the monthly billing period the Service was unavailable. These SLAs may be modified from time to time and are Customer’s sole remedy for any failure related to the SpinUp Services.
6.2. Limitations on Credits. The following limitations apply to all Cloud SLAs.
Maintenance. Customer is not entitled to a credit under any Service Level Agreement for downtime or outages resulting from Maintenance. Maintenance means: (i) SpinUp maintenance windows: modification or repairs to shared infrastructure, such as core routing or switching infrastructure that SpinUp has provided notice of at least 72 hours in advance, that occurs during off peak hours in the time zone where the data center is located; (ii) Scheduled customer maintenance: Maintenance that Customer requests and that SpinUp schedules with Customer in advance (either on a case by case basis, or based on standing instructions), such as hardware or software upgrades; (iii) Emergency maintenance: Critical unforeseen Maintenance needed for the security or performance of Customer’s configuration or SpinUp’s network; and (iv) Routine Optimization: Where SpinUp has attempted and failed on three consecutive occasions to live-migrate Customer’s virtual machine(s), SpinUp may, on 24 hours’ advance notice to Customer, conduct a reboot-migration of Customer’s virtual machine(s).
Limitations. Customer is not entitled to a credit for a failure to meet an SLA which results from: denial of service attacks, viruses or malware, hacking attempts, a change which Customer performs or requests which results in downtime or outages or interferes with SpinUp’s ability to provide the Services, deficiencies, bugs, or errors in Customer’s application, application code, data structures, system software, operating system, or any vendor supplied patches or any other circumstances that are not within SpinUp’s control.
Requests. Customer must request a credit via support ticket in the SpinUp Control Panel within 30 days following the occurrence of the event giving rise to the request for credit. If the claim is approved, the credit shall be applied during the next billing cycle following approval. To be eligible for the credit, Customer must show that its use of the Service to which the applicable SLA applies was adversely affected as a direct result of the downtime or outage.
7. TERM AND RENEWAL
7.1. Term. The Initial Term for each Order begins on the date that SpinUp makes the Services available for Customer’s use and continues for the duration of that month. Upon expiration of the Initial Term, the Order shall automatically renew for successive Renewal Terms of one month each on the first day of each successive month, unless and until one of us gives the other a written notice of termination at any time prior to the expiration of the then current term following the process in this section. Customer is responsible for deleting their SpinUp Services prior to submitting a notice of non-renewal. If Customer requires SpinUp to delete any SpinUp Services, Customer may be charged for those services for up to 5 days following the effective date of termination.
7.2. Termination. Account termination will be effective as of the date specified in the notice of termination. To give effective notice of termination, Customer must follow SpinUp’s termination process through the SpinUp Control Panel. Any other attempt to notify SpinUp of termination will be invalid. Customer is responsible for retrieving a copy of the Customer Data and deleting Customer Data from the Services before the effective date of termination. Upon the effective date of termination Customer will no longer have access to the Services. For the avoidance of doubt, these Terms of Service will continue to apply following Customer’s notice of termination until the effective date of termination. Customer will not have access to Customer’s data stored on the Services following termination or expiration. Customer acknowledges that if Customer terminates the Services or deletes instances through the Spin Up Control Panel, API or other means, that the data contained thereon is permanently deleted and is not recoverable.
7.3. SpinUp reserves the right, in its sole discretion, to terminate Customer’s access to all or any part of the Services at any time, effective immediately. Any such termination may result in the forfeiture and destruction of information associated with Customer’s account. Except as otherwise set forth in this Agreement, any and all fees paid are non-refundable and any and all fees owed to SpinUp before such termination shall be immediately due and payable, including any liabilities incurred prior to termination, such as SpinUp’s costs for collection (including attorneys’ fees). Upon termination, Customer’s rights under this Agreement will cease, and Customer shall promptly discontinue all use of the Services. If Customer wishes to terminate its account, Customer may do so by following the instructions in the SpinUp Control Panel. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
For the avoidance of doubt, if SpinUp believes Customer has violated these Terms of Service, SpinUp may immediately suspend or terminate Customer’s account. Customer is free to terminate its account at any time for any or no reason.
8.1. Fees. Fees are due on the invoice date. If Customer has arranged for payment by credit card or automated clearing house, SpinUp will charge Customer’s card or account on the invoice date. If Customer’s undisputed payment is overdue by 10 days or more, SpinUp may suspend all Services associated with the account. SpinUp shall undertake collection efforts prior to suspension. Invoices that are not disputed within 90 days of the invoice date are conclusively deemed to be accepted as accurate by Customer. Customer shall pay the fees in the currency identified on the Order, and, except as expressly permitted in section 8.4, without setoff, counterclaim, deduction, or withholding. SpinUp may charge interest on overdue amounts at the maximum legal rate, and may charge Customer for any cost or expense arising out of SpinUp’s collection efforts.
8.2. SpinUp will charge Customer and Customer agrees to pay when due the fees for the Services in accordance with the Order. Unless Customer has made other arrangements, SpinUp will charge Customer monthly, without necessity for an invoice, beginning on or about the first day of each month. Any credit that SpinUp may owe Customer, such as a credit for failure to meet a Service Level Agreement, shall be applied to fees due from Customer for Services, and will not be paid to Customer as a refund. Customer authorizes SpinUp to obtain a credit report at any time during the term of the Agreement.
8.3. SpinUp may change the fees and pricing for Services at any time.
8.4. Taxes. All amounts due to SpinUp under the Agreement are exclusive of tax. Customer shall pay SpinUp any tax that is due or provide SpinUp with satisfactory evidence of Customer’s exemption from the tax in advance of invoicing. All payments to SpinUp must be made without any withholding or deduction for any taxes except for local withholding taxes. Customer agrees to timely provide SpinUp with accurate factual information and documentation of Customer’s payment of any such local withholding taxes. SpinUp will remit such cost to Customer in the form of a credit on Customer’s outstanding account balance following receipt of sufficient evidence of payment of any such local withholding taxes.
9. CONFIDENTIAL INFORMATION
Each party agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, the exercise of its legal rights under the Agreement, or as required by law; and shall use reasonable care to protect Confidential Information from unauthorized disclosure. Each party agrees not to disclose the other’s Confidential Information to any third-party except: (i) to its Representatives, provided that such Representatives agree to confidentiality measures that are at least as stringent as those stated in the Agreement; (ii) as required by law; (iii) in response to a subpoena or court order or other compulsory legal process, provided that the party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information unless the law forbids such notice; or (iv) with the other party’s consent.
10.1. SpinUp provides support only for the physical hardware used to provision the Services. SpinUp will not provide technical support for any software or application. SpinUp will not provide any support for Customer’s end users.
10.2. SpinUp makes no commitment to provide any services other than the Services stated in the Agreement. SpinUp is not responsible to Customer or any third-party for unauthorized access to Customer Data or for unauthorized use of the Services that is not solely caused by SpinUp’s failure to meet its security obligations in section 4. To the maximum extent permitted by law, SpinUp disclaims all responsibility for any situation where the security, availability, or stability of the Services is compromised by: (i) actions of Customer or any end user; (ii) software provided by Customer, or (iii) any actions taken by SpinUp which are requested by Customer and not based on the advice or recommendation of SpinUp. SpinUp is excused from all liability to the extent such liability arises out of Customer’s breach of the Agreement.
10.3. SpinUp may designate certain Services as Test Services. SpinUp makes no representation or warranty with respect to Test Services. SpinUp shall not be liable to Customer for any loss or damage arising from the provision of Test Services. SLA(s) shall not apply to Test Services or any other aspect of the Customer Configuration that is adversely affected by Test Services.
10.4. SpinUp and its Representatives disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law including implied warranties such as merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement.
11. LIMITATIONS ON DAMAGES
11.1. Notwithstanding anything in the Agreement to the contrary: **The maximum aggregate monetary liability of SpinUp and any of its Representatives in connection with the Services or the Agreement under any theory of law shall not exceed the actual damages incurred up to the greater of: (i) an amount equal to the fees payable by Customer for the Services that are the subject of the claim in the month in which the liability arose, or (ii) the total amount paid by Customer to SpinUp for the Services that are the subject of the claim in the 3 months immediately preceding the event(s) that first gave rise to the claim.
11.2. SpinUp, or any of its Representatives, is not liable to Customer for any indirect, special, incidental, exemplary, or consequential loss or damages of any kind. SpinUp is not liable for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall SpinUp be liable to Customer for any punitive damages; or for any loss of profits, data, revenue, business opportunities, customers, contracts, goodwill, or reputation.
11.3. As an essential part of the Agreement, the liquidated damages payable under the SLA(s) shall be the credits stated in any applicable SLA(s) which are Customer’s sole and exclusive remedy for SpinUp’s failure to meet those guarantees for which credits are provided.The parties agree that the credits are not a penalty, are fair and reasonable and represent a reasonable estimate of loss that may reasonably be anticipated from any breach. The maximum credit(s) for failure to meet any applicable SLA(s) in any calendar month will not exceed 100% of the then current monthly recurring fee for the affected Services component. Customer is not entitled to a credit if Customer is in breach of the Agreement at the time of the occurrence of the event giving rise to the credit. No credit shall be due if the credit would not have accrued but for Customer’s action or omission.
12.1. If SpinUp, its Affiliates, or any of its or their respective Representatives (collectively, the “Indemnitees” or “Indemnified Parties”) are faced with a claim by a third-party arising out of: Customer’s breach of: the Agreement, any end user agreement, AUP, security obligation, third-party intellectual property rights, or section 5, then Customer shall hold SpinUp harmless and pay the cost of defending the claim (including reasonable legal and professional fees and expenses) and any damages, losses, fines, or other penalties imposed on or incurred by the Indemnitees as a result of the claim. Customer’s obligations under this section include claims arising out of the acts or omissions of Customer’s employees, agents, end users, any person or entity to whom Customer has given access to the Customer Configuration, and any person or entity that gains access to the Customer Configuration as a result of Customer’s failure to use reasonable security precautions, even if the acts or omissions of such persons or entities were not authorized by Customer.
12.2. If SpinUp receives notice of a claim that is covered by this section 12, SpinUp shall give Customer prompt written notice thereof. SpinUp shall be allowed to conduct the defense of the matter, including choosing legal counsel to defend the claim, provided that the choice is reasonable and is communicated to Customer. Customer shall comply with SpinUp’s reasonable requests for assistance and cooperation in the defense of the claim. SpinUp may not settle the claim without Customer’s consent, which may not be unreasonably withheld, delayed or conditioned. Customer shall pay costs and expenses due under this section 12 as SpinUp incurs them.
Customer’s routine communications to SpinUp regarding the Services should be sent using the SpinUp Control Panel. For termination of the Agreement for breach, indemnification, or other legal matters, Customer must send notice to SpinUp by electronic mail and overnight postal service to:
[email protected] General Counsel SpinUp Cloud, LLC. 125 Belmont Drive Somerset, NJ 08873
SpinUp’s routine communications regarding the Services and legal notices shall be posted on the SpinUp Control Panel or sent by email or post to the individual(s) Customer designates as contact(s) on Customer’s account. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
14. PUBLICITY, USE OF MARKS
Customer agrees that SpinUp may publicly disclose that it is providing Services to Customer and may use Customer’s name and logo to identify Customer in promotional materials, including press releases. Customer may not issue any press release or publicity regarding the Agreement, use the SpinUp name or logo or other identifying indicia, or publicly disclose that it is using the Services without SpinUp’s prior written consent.
Customer may not assign the Agreement in whole or in part without the prior written consent of SpinUp, except to an Affiliate or successor as part of a corporate reorganization or a sale of all, or substantially all, of its business, provided that; Customer is not in breach of any obligations to SpinUp at the time of assignment, notifies SpinUp of such change of control, and SpinUp does not reject such assignment within 30 days of Customer’s notification. SpinUp may use its Affiliates or subcontractors to perform all or any part of the Services, but SpinUp remains responsible under the Agreement for work performed by its Affiliates and subcontractors to the same extent as if SpinUp performed the Services itself.
16. FORCE MAJEURE.
Neither party shall be liable or be in breach of the Agreement (excluding in relation to the Customer’s payment obligations) if the failure to perform the obligation is due to an event beyond its control, including significant failure of a part of the power grid, failure of the Internet, natural disaster or weather event, fire, acts or orders of government, war, zombie apocalypse, riot, insurrection, epidemic, strikes or labor action, or terrorism.
17. GOVERNING LAW
The Agreement is governed by the laws of the State of Texas, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Any dispute or claim relating to or arising out of the Agreement shall be submitted to binding arbitration. The arbitration shall be conducted in the state and county (or equivalent geographic location) of the non-asserting party’s principal business offices in accordance with the Commercial Rules of the American Arbitration Association (“AAA”) in effect at the time the dispute or claim arose. The arbitration shall be conducted by one arbitrator from AAA or a comparable arbitration service. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law. Either party may bring an action in any court of competent jurisdiction to compel arbitration under the Agreement, or to enforce an arbitration award. Neither party nor an arbitrator may disclose the existence, content, or results of any arbitration under the Agreement without the prior written consent of both parties. Either party shall be permitted to appeal the final award under the AAA’s Optional Appellate Arbitration Rules in effect at the time the dispute or claim arose. Grounds for vacating the award shall include, in addition to those enumerated under the Federal Arbitration Act, 9 U.S.C. §1, et seq, that the arbitrator committed errors of law that are material and prejudicial. The appeal shall be determined upon the written documents submitted by the parties, with no oral argument. After the appellate rights described in this section have been exercised or waived, the parties shall have no further right to challenge the award
Customer not may resell any portion of the Services unless authorized in writing by SpinUp. Customer is responsible for use of the Services by any third-party to the same extent as if Customer were using the Services itself.
19. CUSTOMER DATA PRIVACY
Customer warrants that Customer shall process any Personal Data (meaning Sensitive Data which can be used to identify an individual or is likewise defined by applicable law) in compliance with all applicable laws. Customer shall, and Customer shall require its end user(s) to, implement those technical and organizational measures required by the applicable laws relative to Customer’s use of the Services and the nature and the volume of the Personal Data stored on the Customer Configuration or processed through Customer’s use of the Services. Customer is responsible for providing any necessary notices to individuals and for obtaining any legally required consent from individuals in relation to SpinUp’s provision of any Services to Customer or Customer’s processing of any Personal Data.
20. CUSTOMER DATA SNAPSHOTS
The Snapshot service is not to be used as a backup service or disaster recovery plan. Customer agrees that Customer shall maintain at least one current copy of Customer’s Customer Data somewhere other than on the SpinUp Services. If Customer utilizes SpinUp Snapshot services, Customer is responsible for performing and testing restores as well as testing Customer’s systems and monitoring the integrity of Customer’s Customer Data. Customer has the option to create a snapshot of Customer’s Cloud Servers, Block Storage volumes, or Databases however it is Customer’s responsibility to initiate the snapshot and test it to determine the quality and success of Customer’s Snapshots.
21. SUSPENSION OF SERVICES
SpinUp may suspend Services without liability if: (i) Customer fails to pay SpinUp when payment is due, regardless of whether such failure is the fault of Customer or a third-party; (ii) Customer initiates a chargeback; (iii) SpinUp reasonably believes that the Services are being used in violation of the Agreement; (iv) Customer does not cooperate with SpinUp’s reasonable investigation of any suspected violation of the Agreement; (v) there is an attack on Customer’s Customer Configuration or the Customer Configuration is accessed or manipulated by a third-party without Customer’s consent; (vi) SpinUp is required by law or by a regulatory or government body to suspend Customer’s Services; or (vii) there is another event for which SpinUp reasonably believes that the suspension of Services is necessary to protect the SpinUp network or SpinUp’s other customers. SpinUp will make reasonable efforts to give Customer advance notice of a suspension under this section of at least 24 hours unless SpinUp determines in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect SpinUp or its other customers from imminent and significant operational, legal, financial, or security risk. If the Customer Configuration is compromised, then Customer must address the vulnerability prior to SpinUp placing the Customer Configuration back in service or, at Customer’s request, SpinUp or one of its Representatives may be able to perform this work for Customer for an additional fee . If a suspension is based on Customer’s breach of Customer’s obligations under the Agreement, SpinUp may continue to charge Customer the fees for the Services during suspension, and SpinUp may charge a reasonable fee upon reinstatement of the Services.
22. MICROSOFT SOFTWARE
Customer’s use of any Microsoft® software is governed by: (i) Microsoft’s license terms that appear at Microsoft License, for client or redistributable software; (ii) Microsoft’s license terms at Microsoft License Mobility for use of Microsoft software on the SpinUp Cloud under the license mobility program; and (iii) any use restrictions on Customer’s use of the Microsoft software as indicated in the Agreement, such as a limitation on the number of users. If Customer resells any part of the Services that include Microsoft software then Customer must include the Microsoft terms posted at Microsoft License Mobility in a written agreement with its customers.
23. SERVICES MANAGEMENT AGENT
Customer agrees that SpinUp may install service management agents on Customer’s Customer Configuration for purposes of providing the Services and identifying security vulnerabilities. SpinUp agrees that its agents shall use only a minimal amount of computing resources (except as otherwise necessary for the provision of the Services) and SpinUp shall not otherwise use the agents to view or capture Customer Data. SpinUp will provide no support for the Services if Customer disables or interferes with SpinUp’s services management software agent(s).
24.1. Some terms are incorporated into the Agreement by reference to pages on the SpinUp website and SpinUp may revise those terms from time to time (including these Terms of Service). Such revisions shall be effective and supersede and form part of the Agreement as of the time: (i) Customer enters into a new Order referencing the revised terms, (ii) this Agreement automatically renews pursuant to its terms or (iii) the parties enter into an agreement for a fixed length term, in which case Customer acknowledges that Customer has reviewed and accepted the then-current version of the terms as of the date of the renewal. If there is a conflict between the terms of the Agreement, the documents shall govern in the following order: the Order then the Terms of Service. The headings or captions in the Agreement are for convenience only. If over time Customer enters into multiple agreements for a given Customer Configuration (for example to add additional components or services) then the terms referenced in the most recent Order shall govern the entirety of the Services for the given Customer Configuration.
24.2. Unless otherwise expressly permitted in the Agreement, the terms of the Agreement may be varied only by a written agreement signed by both parties that expressly refers to the Agreement. Customer may modify, add, or remove Services at any time via the SpinUp Control Panel. The pre-printed terms of Customer’s purchase order or other business form or terms that Customer provides shall be void and of no effect.
24.3. If any part of the Agreement is found unenforceable, the rest of the Agreement shall continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the Agreement. The parties acknowledge and agree that the pricing and other terms in the Agreement reflect and are based upon the intended allocation of risk between the parties and form an essential part of the Agreement. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other and neither party has the right to bind the other on any agreement with a third-party. Other than Representatives for the purposes of sections 10, 11 or 12, or as otherwise specifically designated a “Third-Party Beneficiary”, there are no third-party beneficiaries to the Agreement. The use of the word “including” means “including without limitation”.
24.4. The following provisions shall survive expiration or termination of this Agreement: Intellectual Property, Confidential Information, Limitations on Damages, Indemnification, Notices, Governing Law, Miscellaneous, all terms of the Agreement requiring Customer to pay any fees for Services provided prior to the time of expiration or termination or requiring Customer to pay an early termination fee, and any other provisions that by their nature are intended to survive expiration or termination of the Agreement.
24.5. The Agreement constitutes the complete and exclusive understanding between the parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), agreement(s) or understanding(s), written or oral.