THIS DOCUMENT IS A LEGAL AGREEMENT BETWEEN YOU AND Distinct Software Solutions, LLC. DBA Spillover (Spillover). BY EITHER SIGNING A SPILLOVER AUTHORIZATION FORM OR BY ACCESSING OR USING THE SITE. DO NOT ACCESS OR USE THE SITE IF YOU ARE UNWILLING OR UNABLE TO BE BOUND BY THE TERMS OF SERVICE.YOU, PERSONALLY AND ON BEHALF OF ANY ENTITY YOU REPRESENT, AGREE AND ARE SUBJECT TO THE TERMS SET FORTH BELOW AND THAT THE PARTY ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER IS 18 YEARS OLD OR OLDER. You represent and warrant that you have the legal authority to bind the ENTITY OR ORGANIZATION that is to be the Customer hereunder and that you and the ENTITY OR organization you represent are not citizens, nationals, or residents of, and are not under control of, the government of Cuba, Iran, Sudan, Libya, North Korea, Syria, or any country to which the United States has prohibited export. YOU FURTHER REPRESENT AND WARRANT THAT NEITHER YOU NOR THE ORGANIZATION YOU REPRESENT ARE listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, nor are you listed on the United States Department of Commerce Table of Denial Orders. YOU UNDERSTAND AND ACKNOWLEDGE THAT, ONCE YOU SIGN THE AUTHORIZATION FORM, LOGIN or CONTINUE ACCESSING THE SITE, ANY FEES PAID UNDER THE TERMS OF THIS AGREEMENT ARE NON-REFUNDABLE AND NON-RETURNABLE.
The terms "you" and "Customer" refer to the individual or, if applicable, legal entity (including its agents, employees, officers, directors and owners) identified in the registration information you provide to Spillover.
1.1 Spillover provides Software tools and/or Marketing Services to create, launch, and manage marketing campaigns across multiple platforms and channels. The Software provides individuals, corporations, small businesses, and communities the means to sign up visitors to their websites, collect and retrieve visitor sign-up data, and develop and execute simple interactive marketing communications with visitors. Your Spillover Services begin at the moment of your first payment to Spillover. By purchasing Spillover’ services, you grant Spillover the right to (1) create, access and manage profiles, applications, or websites in your name using Spillover Content, Your Content, Third Party Content, and publicly available information; (2) post, at Spillover’ discretion, Content to the above-mentioned profiles, applications, or websites in your name, including but not limited to Content that mentions, discusses, or promotes third parties; (3) access, collect, read, analyze, and otherwise use on your behalf the information available on the above-mentioned profiles, applications, or websites; and (4) host, using the resources of Spillover or its affiliates, the above-mentioned profiles, applications, or websites.
Upon termination of your use of Spillover’ services, you retain the right to access and control the above-mentioned profiles, applications, or websites not hosted by Spillover or its affiliates, as well as Your Content. At any time, including upon termination of your use of Spillover’ services, Spillover may delete, disable, alter, remove, retain, or otherwise dispose of profiles, applications, or websites hosted by Spillover or its affiliates.
1.2 Spillover may provide reservation call center services for you and will answer inbound calls originally intended for the customers main phone number. Spillover will provide basic agreed information and book reservations for your customers.
1.3 The Software and Services are provided subject to these Terms and Conditions, and any operating and/or privacy policies that Spillover may establish (such terms, conditions, and policies are referred to herein as the "Agreement"). Spillover may modify or revise the Agreement at any time by updating the Terms and Conditions posting at www.Spillover.com. Customer's continued use of the Software and/or Services constitutes Customer's acceptance of any such changes.
1.4 The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, you are not authorized to use the Services.
1.5 Customer agrees to provide true, accurate, current, and complete information about Customer as requested in the Authorization Form, and agrees to update the information as needed. Customer agrees to provide an email address and password for Customer's Spillover Software account. Customer is responsible for maintaining the security of the Customer account, password, and files, and for all uses of Customer's account and of the Software in Customer's name. Spillover reserves the right to refuse a registration or to cancel an account, as Spillover in its sole discretion deems appropriate.
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or any software, documentation, or data related to the Services or Software. Customer will not modify, translate, or create derivative works based on the Services or any Software, or copy (other than in connection with its authorized use of the Service or Software), distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party.
2.2 Customer acknowledges and agrees that Spillover is the owner of all Intellectual Property rights associated with the Services and Software. Spillover does not grant any rights to or ownership of the Services or Software to Customer by this Agreement. Customer is permitted to use the Services only as expressly authorized by Spillover.
2.3 Customer further acknowledges that DSS CourseTrends retains all right, title and interest in the Services and Software and in all improvements, enhancements, modifications and derivative works of the Services and Software including all rights to patent, copyright, trade secret and trademark, regardless of the identity of the creating party.
2.4 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Spillover' privacy policies as published at www.Spillover.com or as may otherwise be furnished to Customer (the "Policy") and all applicable laws (including but not limited to applicable regulations and laws related to spamming, privacy, obscenity, and defamation).
2.5 Customer may not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party unless Customer has the right to use such third party mailing lists. Customer hereby agrees to indemnify and hold harmless Spillover against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys fees) in connection with any claim or action that arises from an alleged violation of the foregoing or any breach by Customer of this Agreement.
2.6 Although Spillover has no obligation to monitor the content provided by Customer or Customer's use of the Services, Spillover may do so and may remove any such content or prohibit any use of the Services it believes may be (or that is alleged to be) in violation of the foregoing.
2.7 Customer acknowledges and agrees that an automatically generated identifying footer stating "Powered by Spillover" or a similar message shall appear on every email message sent by Customer in connection with the Services.
2.8 During the Term of the Agreement and beginning after the Effective Date, Customer shall not use, license, sell, create, modify, distribute, support, maintain, or permit or assist others to use, license, sell, create, modify, distribute, support, maintain the Software or any similar product created by or for Customer or owned or controlled by Customer. Customer shall not license or disclose the Software to any person without an express written obligation imposed upon that person consistent with the terms of this section. Customer agrees that a monetary remedy for any breach of this Agreement would be inadequate, that Spillover would be irreparably harmed in the event of such a breach, and that Spillover may enforce this Agreement by specific performance and injunction.
2.9 You alone are responsible for Your Content. You assume all risks associated with Your Content, including anyone’s reliance on its accuracy, completeness or usefulness, or any disclosure by you of information in Your Content that makes you personally identifiable. You represent that you own, or have the necessary permissions to use, and authorize the use of, Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by Spillover.
You may expose yourself to liability if, for example, Your Content violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is false, intentionally misleading, or defamatory; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
3.1 This Agreement will become effective upon the the date Customer signs and transmits (generally via fax) the Spillover Authorization Form, (the "Effective Date"). The Term of the Agreement (the "Term") will commence upon delivery of the Spillover solution (Live website, active social media profiles, receiving and answering of calls on the reservation center) to Customer. Upon delivery of the solution, Customer will have three (3) days to review the solution and respond in writing to Spillover with any reasonable corrections or changes that are within the scope of the Solution. If there are no changes or corrections, the solution will be deemed accepted after the three (3) day review period has expired. If there are changes or corrections, the solution will be deemed accepted the day Spillover completes the changes or corrections; such completion will be determined at Spillover' sole discretion after a reasonable attempts to get approval from customer.
3.2 The Term of this Agreement will be for Twelve (12) months unless otherwise agreed. The pricing for this Agreement is reflected on the signed agreement by customer and Spillover, unless otherwise agreed. Customer may terminate this Agreement or reduce the number of licenses, effective upon the expiration of the Term, by notifying Spillover in writing or via email at least thirty (30) days prior to the expiration of the Term. Absent such written termination notice, and upon expiration of the Term, the Agreement will automatically renew for a rolling thirty (30) day Renewal Term (the "Renewal Term") unless otherwise agreed in writing. Customer may terminate the Agreement during the Renewal Term by notifying Spillover in writing, which will set the expiration date of the Renewal Term thirty (30) days from the date of written notification.
3.3 In the event that Customer terminates this Agreement and is not in breach of this Agreement, Spillover will make available to Customer a list of its Customer data within thirty (30) days of termination if Customer so requests at the time notice of termination is given. Spillover reserves the right to impose a service fee in the event Customer requests an electronic file of Customer data.
3.4 Any breach of Customer's payment obligations or unauthorized use of the Spillover technology, Software or Services will be deemed a material breach of this Agreement. Spillover, in its sole discretion, may terminate Customer's password, account or use of the Services if Spillover reasonably believes that Customer has breached or otherwise failed to comply with this Agreement. In addition, Spillover may terminate an account if Customer does not first log on within thirty (30) days after registration or if ninety (90) days have passed since Customer last logged on. In addition, Spillover may terminate the Agreement with at least 30 days notice, for convenience, at its sole discretion.
3.5 Customer agrees and acknowledges that Spillover is not limited in its use of Customer data (Customer data is defined as information from Customer website and email databases) throughout the term of the Agreement, has no obligation to retain any Customer data after termination of this Agreement (but may, at its election, do so), and such information becomes Spillover property and may be irretrievably deleted after thirty (30) days following termination.
4.1 Customer agrees to deliver first payment on the Effective Date of the Agreement.
4.2 Customer agrees to make payments on the first business day of each month, unless otherwise agreed in writing by the parties.
4.3 Spillover charges and collects in advance for use of the Services and Software. Customer authorizes Spillover to, and Spillover will automatically charge Customer's credit card or EFT (or issue an invoice if Spillover approves such an arrangement) for the initial Term fee(s), and Spillover will thereafter automatically bill Customer's credit card or EFT (or issue an invoice to Customer) for Renewal Term fee(s). The renewal fee(s) will be equal to the then-current Software or Service fee in effect at the time of such Renewal.
4.4 Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder or they may be added by Us to Our fees if required by State or federal laws.
4.5 Customer agrees to provide Spillover with complete and accurate billing and contact information. This information includes Customer's legal company name, street address, email address, and name and telephone number of an authorized billing contact and license administrator. Customer agrees to update this information within thirty (30) days of any change to it. If the contact information Customer has provided is false or fraudulent, Spillover reserves the right to terminate this Agreement and/or Customer's access to the Services in addition to any other legal or equitable remedies it may have.
4.6 For credit card payers, service fees shall accrue at the start of the initial Term, and Customer's credit card will be charged at that time. If Customer has been approved for payment by invoice, invoices will be generated at the start of the initial Term, and thereafter approximately one month in advance of the start of any Renewal Term, and shall be due within thirty (30) days. Customer's account will be considered delinquent (in arrears) if payment in full is not received within thirty (30) days of the date of the invoice.
4.7 If Customer believes that the bill is incorrect, Customer must notify Spillover in writing within sixty (60) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
4.8 In addition to any other rights granted to Spillover herein, Spillover reserves the right to suspend or terminate this Agreement and Customer's access to the Software if Customer's account becomes thirty (30) days or more delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including attorney's fees. Customer will continue to be charged service fees during any period of suspension. If Customer or Spillover initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer's account computed in accordance with the this Billing and Renewal section. Customer agrees that Spillover may charge such unpaid fees to Customer's credit card or otherwise bill Customer for such unpaid fees.
Spillover reserves the right to impose a reconnection fee in the event Customer's account is suspended and thereafter requests access to the Services. Customer agrees and acknowledges that Spillover has no obligation to retain Customer data and that such Customer data may be irretrievably deleted if Customer's account is 30 days or more delinquent.
Software and services are provided by Spillover on an "as is" and "as available" basis. Spillover makes no representations or warranties of any kind, express or implied, as to the Software and the services it provides. To the full extent permissible by applicable law, Spillover disclaims all warranties, express or implied, including but not limited to the implied warranty of non-infringement of third party rights, merchantability, or fairness for a particular purpose
THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SPILLOVER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
IN NO EVENT SHALL SPILLOVER' AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) EVEN IF THE PARTY FROM WHOM DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer may not remove or export from the United States or allow the export or re-export of the Software, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
Spillover may give notice by means of an update to this posting, a general notice on the Spillover website, electronic mail to Customer's email address on record in Spillover' account information, or by written communication sent by first class mail or pre-paid post to Customer's address on record in Spillover' account information. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). Customer may give notice to Spillover (such notice shall be deemed given when received by Spillover) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Spillover at the following address: Spillover, 9111 Jollyville Road, Suite 108, Austin, TX 78759 addressed to the attention of: Billing Department.
11.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.2 Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
11.3 No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind Spillover in any respect whatsoever.
11.4 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys fees.
11.5 This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws' provisions. Exclusive venue for any litigation related hereto shall occur in Travis County, State of Texas.
11.6 Spillover reserves the right to modify pricing and will notify Customer at least thirty (30) days in advance, by email, when this occurs.
11.7 Neither party has the right to assign this Agreement without the written consent of the other.
11.8 Customer understands and agrees to the Terms of this Agreement. You agree to the Terms of Service by accessing or using the Site or aforementioned services. Do not access or use the Site or continue to use the services if you are unwilling or unable to be bound by the Terms of Service.