spriteCloud Terms of Service

(last update: 5 Nov 2009)

By using spriteCloud Products, you are agreeing to be bound by these Terms and Conditions. If you do not agree to any of the terms or conditions, “spriteCloud” is unwilling to provide access to any of the spriteCloud Products to you, and you should not use spriteCloud Products.

Services and License.

For the term of the agreement as set forth herein, spriteCloud agrees to provide you with remote access to spriteCloud products and associated user manuals and other instructions (the “User Documentation”) (collectively “the Services”) hosted on a computer system made available by spriteCloud, and to its standard support services for your use of the product.

The number of users and license types for any spriteCloud product available to you shall be limited to the number and type of licenses for which you have paid fees to spriteCloud. You may increase the number of such users, product licenses or license type with the prior awareness of spriteCloud and upon payment to spriteCloud of additional licensing fees.

Subject to the terms of this Agreement spriteCloud hereby grants to you, and you accept, a non-exclusive, nontransferable, limited license (without any right to sublicense) to use the Services only as authorized in this Agreement. This Agreement also governs any releases or revisions of, or enhancements to, the Services that we may furnish. spriteCloud reserves the right to change, amend and/or otherwise alter the Services without prior notice to you.

You acknowledge that spriteCloud retains all title, copyright, and other proprietary rights in and to the Services, that you will obtain only such rights to use the Services as are expressly provided herein, and that said use may be for your internal business purposes only.

Restrictions on License.

You may not, or cause or permit any third party to: (a) provide, disclose, divulge or make available to, or permit use of the Services or any modified version thereof by any third party, (b) sell, rent, lease, timeshare, loan, encumber, license, sublicense, transfer or assign the Services or any modified version thereof, (c) take any other action in derogation of spriteCloud’s intellectual property rights, (d) use the Services or any modified version thereof to provide services to third parties, (e) use the Services or any modified version thereof on a timesharing or service bureau basis, or otherwise permit any third party to enjoy the use or benefit of the Services or any modified version thereof, (f) remove any proprietary notices or labels on the Services or any modified version thereof, or (g) publish any report or statement or make any public comment concerning the performance, features or functionality of the Services or any modified version thereof or that compares the Services or any modified version thereof to any other service, product or system nor authorize any such report, statement or comment, without spriteCloud's prior written consent.

All rights not expressly licensed hereunder are reserved by spriteCloud.

Fees.

The fees paid by you are in consideration of the services provided under this Agreement. spriteCloud charges Account Set-Up Fees and periodic Service Fees. All such fees are subject to change with 30 days notice. A list of current fees is available from spriteCloud on request. Payment of fees is due in advance. All payments shall be made in Euro. spriteCloud reserves the right to offer subsequent promotional rates which may or may not be more favorable than the terms under which you entered this agreement. Any such periodic special rates shall not effect the then existing rights and responsibilities of each party. spriteCloud further reserves the right to institute new services and charge fees in association with the provision of such new services as it deems appropriate.

Account Set-up Fees are not refundable. Refunds of Service Fees will be made only for pre-payment of Service Fees beyond the renewal date following termination of this agreement. All refunds shall be pro-rated based upon the number of days for which service remains unused as of that renewal date. spriteCloud may grant refunds under any other circumstance it deems appropriate without waiving any other rights hereunder. Term.This Agreement is effective upon provision to you of access to spriteCloud Products. Access will commence as soon as is practicable after receipt of your order, dependent on the timely receipt of any payment due from you in connection therewith. The initial term of this Agreement shall be one (1) month with renewal for subsequent additional month after the expiration of the initial term (each such month a "Contract Term"). spriteCloud reserves the right to accept pre-payment of renewal periods and may from time to time offer financial incentives for such pre-payment. The Contract Term, however, shall remain one (1) month. spriteCloud may terminate this Agreement upon breach by you of any term hereof and terminate your access to the Services.

Warranty.

spriteCloud shall make every reasonable effort to maintain your access to spriteCloud Products. However because many events and circumstances are beyond the control of spriteCloud, spriteCloud does not in any way warrant or otherwise guarantee the availability of access to spriteCloud Products and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of spriteCloud. spriteCloud may, at its sole discretion, limit or deny access to its servers, if, in the judgment of spriteCloud, such limitations or denials of access are required to the assure the security of the network, the integrity of the network structure, or to prevent damage to the network, the software or the data stored on the spriteCloud servers. ALL spriteCloud SOFTWARE AND SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to be infringing.

Confidentiality.

spriteCloud will not use, disseminate, disclose or divulge information that you enter into spriteCloud Products under this Agreement, except as required by law. spriteCloud will use the same standard of care it uses for its own confidential computer data to secure said information. Upon passive termination of this Agreement spriteCloud shall provide to you all such information that is then in the possession of spriteCloud after which spriteCloud shall destroy all said information (6) six months after termination. A passive termination is a failure to provide payment for the Services by the contract due date. Upon active termination of this Agreement spriteCloud shall provide to you all such information that is then in the possession of spriteCloud after which spriteCloud shall destroy all said information at time of termination. An active termination is made through the Service by selecting a menu option which specifically states the Service user is permanently removing their account and all associated information.

Limitation of Liability.

IN NO EVENT WILL spriteCloud’s LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE EXCEED THE VALUE OF THE CONSIDERATION ACTUALLY PAID BY YOU HEREUNDER IN THE SIX MONTHS IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY. THE PARTIES AGREE THAT spriteCloud WILL NOT BE LIABLE, UNDER ANY THEORY OF LIABILITY, HOWEVER ARISING, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT, OR OTHERWISE, FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND REGARDLESS WHETHER spriteCloud HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Announcements.

spriteCloud and you may promote your use of the Software, either jointly or individually. spriteCloud may also use your name in publicity materials as a licensee of the Software.

Assignment.

You may not transfer or assign this Agreement or the license granted, whether by operation of law or otherwise, without spriteCloud's prior written consent. Any attempted transfer or assignment in violation of this provision shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.

Severability.

If any provision of this Agreement is held to be unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement shall be controlling over additional or different terms of any purchase order or similar document, even if accepted in writing by both parties.

No Waiver.

The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

Force Majeure.

Either party shall be excused from any delay or failure in performance hereunder, except the payment of monies by you, caused by reason of any occurrence or contingency beyond its reasonable control.

Remedies.

In the event any dispute arises between the parties, the prevailing party shall be entitled to its attorney fees and costs incurred in enforcing this Agreement, including without limitation any collection costs for monies due and payable.

Support.

In consideration of payment of the appropriate fees hereunder, spriteCloud will provide you with the following support services for the Services for the term of this Agreement.

Maintenance/Minor Updates.

spriteCloud will provide you with Major and Minor Updates made generally available to its customers for the Services. "Minor Updates" means updates, if any, not involving additions of substantial functionality. "Major Updates" means updates, if any, containing substantial new features. spriteCloud is the sole determiner of the availability and designation of a product revision as a Minor Update or a Major Update. Minor Updates exclude software releases that are designated by spriteCloud as Major Updates or new products.

Technical Support.

spriteCloud will provide you with technical support services as described below.

spriteCloud will provide you with back-end support for reproducible deviations in a standard, unmodified version of the Services from the applicable specifications shown in its documentation. This includes efforts to reproduce Program Errors and to provide corrections, workarounds and/or patches to correct them. Program Errors can be reported by email to spriteCloud. spriteCloud will use reasonable commercial efforts to communicate with you about a Program Error, via telephone or e-mail within the following targeted response times.

PRIORITY	FAILURE DESCRIPTION	RESPONSE TIME
1.	Fatal (no useful work can be done).	24 hours.
2.	Severe Impact (Functionality disabled): Error, which result in a lack of application functionality or cause intermittent system failure.	1 working day
3.	Degraded Operations: Errors causing malfunction of non-critical functions.	5 working days.
4.	Minimal Impact: attributes and/or options to utility programs do not operate as stated.	Future release, on a business justifiable basis
5.	Enhancement Request.	When applicable.

At the discretion of spriteCloud you will provide sufficient information for spriteCloud to enable spriteCloud to reproduce the Program Error before spriteCloud's response obligations will commence. This information will include at least:

• OS and version on which spriteCloud Products are being run.
• Client browser being used.
• Detailed procedure for reproducing the Program Error. It may be necessary to send a copy of your test data to spriteCloud to provide an environment in which the Error can be made to occur.
• Program Error classification.
• spriteCloud may reclassify Program Errors if it reasonably believes that your classification is incorrect.
• spriteCloud will use reasonable commercial efforts to resolve each significant Program Error that you identify, classify and report to spriteCloud, and that spriteCloud can reproduce, by providing either a reasonable workaround, a code patch or a specific action plan for how spriteCloud will address the problem and an estimate of how long it will take to rectify the defect.

spriteCloud will not be required to correct any Program Error caused by (a) incorporation, attachment of a feature, program, or device to any spriteCloud Service, or any part thereof; (b) any nonconformance caused by accident, transportation, neglect, misuse, alteration, modification, or enhancement of the Software; (c) the failure to provide a suitable installation environment; (d) use of the Software for other than the specific purpose for which the Software are designed; (e) use of the Services on any systems other than the specified hardware platform for such Licensed Software; (f) use of defective media or defective duplication of the Service; or (g) failure to incorporate any Minor or Major Update previously released by spriteCloud which corrects such Program Error.

spriteCloud reserves the right to charge additional fees at its then standard rates for (a) services performed in connection with reported Program Errors which are later determined to have been due to hardware or software not supplied by spriteCloud or (b) support requests which are later determined to not be related to a Program Error. Notwithstanding the foregoing, spriteCloud has no obligation to perform services in connection with (i) Program Errors resulting from hardware or software not supplied by spriteCloud; or (ii) which occur only in the Services release which is not the then current release, or (iii) support requests which are not related to a Program Error.

Communications.

You will identify one (1) member of your staff to act as the technical liaison responsible for all communications with spriteCloud's technical support representatives. Such liaison will have sufficient technical expertise, training and/or experience, to perform your obligations hereunder. You, and not spriteCloud, will be responsible for front-line, or first level, technical support to your Authorized Users. Such support includes, but is not limited to, call receipt and screening, problem identification and diagnosis, and creating a reproducible demonstration of a Program. spriteCloud will have no obligation to furnish any assistance, information or documentation with respect to the Services directly to your employees, other than the properly designated liaison.

Entire Agreement.

This Agreement is the complete, final, and exclusive statement of the agreement between the parties and supersedes any and all other agreements between them related to the subject matter hereof.