Spartan 6 Inc. - Customer Terms of Services

Last Modified: December 27, 2012

PLEASE READ THE CUSTOMER TERMS OF SERVICES (“AGREEMENT”) CAREFULLY BEFORE USING THE SPARTAN 6 SERVICE.

This Agreement is a legally binding contract between you (“Customer”) and Spartan 6 Inc. Spartan 6 Inc. provides the Service (as defined below) to you subject to and conditioned upon your acceptance of this Agreement.

BY ACCESSING AND USING THE SERVICE IN ANY WAY, YOU AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS, DO NOT USE THE SERVICE.

Spartan 6 Inc. may update and change any part or all of this Agreement. If we update or change this Agreement, we will post the updated version at http://www.spartan6.com/wiki/wiki.php?p=TermsOfServices . The updated Agreement will become effective on the next business day after being posted. When we change this Agreement, we will modify the "Last Modified" date above. We encourage you to review this Agreement periodically.

1. Definitions

“Administrator” means Customer's employees, representatives, consultants, contractors or agents who are authorized by Customer to use the Service in an administrative manner and who have been supplied user identifications and passwords by Customer (or by Spartan 6 at Customer’s request)

“Agreement” means these Customer Terms of Service and all materials referred or linked to in these Terms of Service.

“Billing Period” means the period of time for which Customer has agreed to prepay fees for the Service, from time to time and will be the same as or shorter than the Contract Term. For example, if Customer subscribes to the Service for one year, with monthly credit card payments, the Billing Period will be one month.

"Communication Services" means third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and Linked In) linked to or from the Service that enable Customer to communicate with the public at large or with a group.

“Contact” means the contact information, typically unique email address, of a Customer’s customer, prospect, lead, or other individual (other than a User) used with the Service.

“Contact Information” means the name, company affiliation, job title, email address, online user name telephone number, and similar publicly available information voluntarily submitted by visitors to Customer’s landing pages on the Service, as well as navigational data relating to each visitor’s activity on Customer’s webpages on the Service. Contact Information does not include Sensitive Information.

"Contract Term" means the Initial Contract Term and any Renewal Contract Term(s), as defined in Section 8, below.

"Customer Data" means all Contact Information and other permitted information submitted by Customer to, or collected by Customer via, the Service. Customer Data does not include Sensitive Information.

"Customer Materials" means all materials that Customer provides or posts, uploads, inputs or submits for public display through the Service. Suggestions, feedback and comments relating to the Service provided by Customer personnel to Spartan 6 Inc. are not Customer Materials.

"Customer" means the person or entity using the Service and identified in the applicable billing statement or order form as the Spartan 6 Inc. customer.

“Email Send Limit” means the number of emails that Customer may send in a calendar month, equal to five (5) times the Maximum Contacts number.

"Spartan 6" means Spartan 6 Inc. and any entity which directly or indirectly controls, is controlled by, or is under common control with Spartan 6 Inc.

"Spartan 6 Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags incorporated into the Service by Spartan 6.

“Maximum Contacts” means the maximum number of Contacts Customer may use with the Service as identified in Customer’s order form or its subscription.

"Member" means the person(s) or Contact who are authorized by Customer to use restricted areas of the Service in a membership-type manner and who have been supplied user identifications and passwords by Customer (or by Spartan 6 at Customer’s request)

“Sensitive Information” means credit or debit card numbers, personal financial account information, Social Security numbers, passport numbers, driver’s license numbers or similar identifiers, or employment, financial or health information.

"Service" means the specific edition and elements of Spartan 6's web-based marketing applications, tools and platform selected by Customer, and developed, operated, and maintained by Spartan 6, accessible via http://www.spartan6.com or another designated URL, and any ancillary online or offline products and services, including website hosting, provided to Customer by Spartan 6, to which Customer is being granted access under this Agreement. The Service includes the Spartan 6 Content, and does not include training services, consulting services, and Third-Party Products.

"Third-Party Products" means professional services, online web-based applications and offline software products that are provided by third parties, interoperate with or are used in connection with the Service, and are identified as being provided by third parties, including but not limited to non-Spartan 6 services listed on http://www.spartan6.com/wiki/wiki.php?p=Services.

"Third-Party Sites" means third-party websites linked to from within the Service, including without limitation Communications Services.

"User(s)" means anyone who has been supplied user identifications and passwords, and includes Members and Administrators

2. The Service

During the Contract Term and as provided in this Agreement, Spartan 6 will provide Customer access to the Service.

The Service shall be as selected by the Customer during the subscription process. Limits may apply to the number of Contacts, users, keywords tracked, competitors tracked, emails per month, and lead nurturing campaigns, as detailed in Spartan 6’s pricing and subscription terms, currently available at http://www.spartan6.com/wiki/wiki.php?p=Pricing. Customer’s access to and use of the Service is governed by the terms of this Agreement.

Spartan 6 modifies the Service from time to time, including by adding or deleting features and functions, in order to improve its customers’ experience. Nothing in this Agreement shall prohibit Spartan 6 from making such changes to the Service, provided that no such change to the Services shall materially reduce the functionality of the Services provided to Customer during the Contract Term. Spartan 6 reserves the right to provide some or all elements of the Service through use of third party providers.

Customer can subscribe to additional elements of the Service from time to time, as agreed to between the parties, and such added elements of the Service shall, starting with the date on which the parties agree to their addition, be included in the Service provided and fees payable under this Agreement.

3. Customer Support

Support for Customer’s use of the Service is included in Customer’s subscription fee.

Spartan 6 accepts webform support questions 24 Hours per Day x 7 Days per Week at http://www.spartan6.com/contact.php.

Webform responses are provided during Spartan 6's normal days and hours of business operation 10am to 4pm (MST), Monday through Friday, excluding Canadian national holidays. Spartan 6 attempts to respond to webform support questions within one business day; in practice, Spartan 6’s responses are generally even faster. Spartan 6 does not promise or guarantee any specific response time.

Spartan 6 shall use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.

4. Consulting Services

Spartan 6 offers consulting packages to provide training and Internet marketing expertise to help Spartan 6’s customers succeed. Fees for these services are in addition to Customer’s fees for the Service and are payable at the start of the engagement. Unless otherwise agreed, all Spartan 6 consulting is performed remotely. Hours purchased as part of a consulting package are nonrefundable and expire as set forth in the Order Form but in any case no later than 180 days from purchase.

5. Custom Branding Services

Spartan 6 offers custom branding packages to provide a unique online presence that help Spartan 6’s customers succeed. Fees for these services are in addition to Customer’s fees for the Service and are payable at the start of the engagement. Unless otherwise agreed, all Spartan 6 consulting regarding these Custom Branding Services is performed remotely. These custom branding packages are nonrefundable.

6. Custom Software Services

Spartan 6 offers custom software services, such as enhancements to Member Profiles and other website features and enhancements to the Service that help Spartan 6’s customers succeed. Fees for these services are in addition to Customer’s fees for the Service and are payable at the start of the engagement. Unless otherwise agreed, all Spartan 6 consulting regarding these Custom Software Services is performed remotely. These custom software services are nonrefundable.

7. Fees and Payments

The Service Fee will be as agreed to by Customer in the Order Form and will not change during a Billing Period, except as provided in this Section.

a. Price Increases. General price increases established by Spartan 6 will not affect Customer during a Billing Period. Spartan 6 will charge or invoice Customer under the new price structure, starting with the next Billing Period in the Contract Term.

b. Contact and Email Send Limit Tier Adjustments. If Customer exceeds its Maximum Contacts and/or Email Send Limit in a Billing Period, then Customer’s Service Fee will be adjusted at the beginning of the next Billing Period up to the tier price for the maximum number of Contacts or maximum monthly email sends from any prior period, and Spartan 6 will charge or invoice Customer for that adjusted amount. This process will continue for each Billing Period during the Contract Term. Spartan 6 pricing and limits will be as set forth at http://www.spartan6.com/wiki/wiki.php?p=Pricing. Spartan 6's determination of the number of contacts in Customer’s marketing community and the number of emails Customer sends shall be conclusive. Service Fees will not decrease, even if there is a subsequent reduction in the number of contacts or emails.

c. Overage Fees for Exceeding Maximum Email Send Limits. Customer will use best efforts to accurately calculate the number of contacts in its customer data list to purchase the subscription that most accurately fits its good faith projected number of contacts in its customer data list. Spartan 6 and its subcontractors will have the right to monitor or audit remotely the number of contacts in Customer’s marketing community and the number of emails sent by Customer on the Service. The Service Fee will not change during a Billing Period, unless Customer exceeds its Email Send Limit in a Billing Period, and continues to do so after notice from Spartan 6, in which case, Customer’s Service Fee for the then-current Billing Period will be adjusted immediately up to the tier price for the maximum number of contacts in Customer’s marketing community and Customer’s maximum monthly email sends from any prior period, and Spartan 6 will promptly charge or invoice Customer for the increased amount due. Spartan 6's determination of the number of contacts in Customer’s marketing community and the number of emails Customer sends in a month shall be conclusive.

d. Payment by credit card. Customer will provide Spartan 6 with valid and updated credit card information or bank account information. Customer authorizes Spartan 6 to charge Customer’s credit card or bank account for all fees payable at the beginning of the Initial Contract Term and all subsequent Billing Periods

e. Payment against invoice. Spartan 6 will invoice Customer at the beginning of the Initial Contract Term and at the beginning of each subsequent Billing Period. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice. Payment instructions shall be as set out on Spartan 6’s invoice. Fees paid in advance are not refundable, except as specifically provided for in this Agreement.

f. Payment Information. Customer shall ensure that all details provided regarding the Customer's contact information, billing information and credit card information, where applicable, are correct and undertakes to update such information when changes to such information occurs. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are payable in advance throughout the Contract Term.
All quoted prices and fees are exclusive of sales, value added and similar taxes, which Spartan 6 will charge or invoice as applicable, and Customer agrees to pay any such taxes applicable to its use of the Service.

8. Contract Term and Renewal

The “Initial Contract Term” shall begin on the effective date of Customer’s subscription and expire at the end of the period selected during the subscription process, unless earlier terminated in accordance with this Agreement.

Unless either party gives the other notice that it does not intend to renew this Agreement at least 45 days in advance of the end of the Contract Term, this Agreement will be automatically renewed for a “Renewal Contract Term”, which shall be: (i) on the terms and conditions of this Agreement then in effect, (ii) subject to the pricing structure and applicable levels provided for renewal terms in this Agreement or, if not so specified, as then posted by Spartan 6 at http://www.spartan6.com/wiki/wiki.php?p=Pricing, and (iii) for a term equal to the shorter of the Initial Contract Term or one year.

Each Contract Term, unless renewed, shall end on the earlier of the applicable expiration date or its earlier termination as provided in this Agreement. Except as provided herein, a Contract Term cannot be canceled before its expiration. Fees for each Contract Term are non-cancelable, and therefore no refunds of fees paid in advance will be made, except as specifically provided for in this Agreement.

9. Spartan 6’s Proprietary Rights

This is an Agreement for access to the Service, and Customer is not granted a license to any software by this Agreement. The Service is based upon proprietary Spartan 6 technology and includes the Spartan 6 Content. The Service is protected by applicable intellectual property and other laws, including patent, trademark, and copyright laws. The Service, including all intellectual property rights in the Service, belongs to and is the property of Spartan 6 or its licensors (if any). Spartan 6 owns and retains all copyrights in the Spartan 6 Content. The Spartan 6 Content may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, and Customer agrees not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivative works based on the Spartan 6 Content or the Service, in whole or in part, by any means, except as expressly authorized in writing by Spartan 6. Spartan 6, the Spartan 6 logos, and other marks used by Spartan 6 from time to time are trademarks and the property of Spartan 6. The appearance, layout, color scheme, and design of the Spartan 6.com site are protected trade dress. Customer does not receive any right or license to use the foregoing.

Spartan 6 may use and incorporate into the Service any suggestions or other feedback relating to the Service provided by Customer personnel, without payment or condition.

10. Customer’s Proprietary Rights

As between the parties, Customer shall own and retain all rights to the Customer Materials, Customer Data and any works specifically created by Spartan 6 for Customer under separate agreement of the parties, and this Agreement does not grant Spartan 6 any rights to such materials. Customer grants permission to Spartan 6 and its licensors to use the Customer Materials and Customer Data only as necessary to provide the Service to Customer, and not for any other purpose.

11. Publicity

Customer grants Spartan 6 the right to add Customer’s name and company logo to its customer list and web site. Except for the foregoing, neither party may use the other party’s name or logo without the other party's prior written consent.

12. Customer Data

Spartan 6 will not use, or allow anyone else to use, Customer Data to contact any individual or company except as directed by Customer. Spartan 6 will use Customer Data only in order to provide the Service to Customer and only as permitted by applicable law, this Agreement, and Spartan 6’s Privacy Policy, located at http://www.spartan6.com/wiki/wiki.php?p=PrivacyPolicy or such other site as Spartan 6 may select. Spartan 6 will not use Customer Data for any other purpose.

Spartan 6 may monitor use of the Service by all of its customers and use data related to such use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Service. Customer agrees that Spartan 6 may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify Customer.
Spartan 6 will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Customer consents to the processing of Customer Data in the United States.

CUSTOMER AGREES NOT TO USE THE SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. SPARTAN 6 DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE FROM CUSTOMER’S USE OF THE SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.

13. Use and Limitations of Use

Customer’s access to the Service is conditioned upon its representations and warranties that it will not:

• Use, or allow its Users to use, the Service in violation of the terms of this Agreement;
• Use or allow its Users to use, the Service in violation of the terms of Spartan 6’s Acceptable Use Policy at http://www.spartan6.com/wiki/wiki.php?p=AcceptableUse.
• Copy, modify, create a derivative work from, reverse engineer or reverse assemble the Service, or otherwise attempt to discover any source code, or allow any third party to do so;
• Sell, assign, sublicense, distribute, commercially exploit, grant a security interest in or otherwise transfer any right in, or make available to a third party, the Spartan 6 Content or Service in any way;
• Use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," that accesses the Service in a manner that sends more request messages to the Spartan 6 servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser;
• Use the Service in any manner that damages, disables, overburdens, or impairs any Spartan 6 website or interferes with any other party's use and enjoyment of the Service;
• Attempt to gain unauthorized access to the Service;
• Access the Service by any means other than through the interface that is provided by Spartan 6 for use in accessing the Service;
• Use the Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.

Any unauthorized use of any Spartan 6 Content or the Service may violate patent, copyright, trademark, and other laws. Customer agrees to cooperate with Spartan 6 to prevent any unauthorized copying of the Service or Spartan 6 Content.

Customer shall promptly notify Spartan 6 of any unauthorized use of its Users’ identifications and passwords or its account by sending a notification at http://www.spartan6.com/contact.php

14. Acceptable Use of Communications Services

Customer agrees to use any third-party Communication Service only in compliance with any terms of use specified by the Communication Service. Spartan 6 does not control or endorse the content, messages or information found in the Communication Services and, therefore, Spartan 6 specifically disclaims any liability with regard to the Communication Services and any actions resulting from Customer’s use of the Communication Services.

15. Third-Party Sites and Products

Third-Party Sites and Products are not under Spartan 6’s control, and Spartan 6 is not responsible for the contents of any Third-Party Site or Product, including without limitation any link contained in a Third-Party Site, or any changes or updates to a Third-Party Site or Product. Spartan 6 is not responsible for any other form of transmission received from any Third-Party Site. The Third-Party Sites and Products are provided to Customer only as a convenience, and the inclusion of any Third-Party Site or Product does not imply endorsement by Spartan 6 of the Third-Party Site or Product or any association of Spartan 6 with it.

16. Indemnification

Customer will indemnify, defend and hold Spartan 6 harmless, at its expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against Spartan 6 (and its officers, directors, employees, agents, service providers, licensors, and affiliates) to the extent that such Action is based upon or arises out of (a) Customer’s use of the Service; (b) Customer’s noncompliance with or breach of this Agreement, (c) Customer’s use of Third-Party Products, or (d) the unauthorized use of the Service by any other person using Customer’s User information. Customer will indemnify Spartan 6 for any and all costs, damages, settlements, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees and court costs) of any kind whatsoever, directly and to the extent arising out of any Action by a third party not affiliated with Spartan 6. Spartan 6 shall use commercially reasonable efforts to: notify Customer in writing within thirty (30) days of Spartan 6’s becoming aware of any such claim; give Customer sole control of the defense or settlement of such a claim (provided that Customer may not settle any such claim unless the settlement unconditionally releases Spartan 6 of all liability); and provide Customer (at Customer’s expense) with any and all information and assistance reasonably requested by Customer to handle the defense or settlement of the claim. Customer shall not accept any settlement that (i) imposes an obligation on Spartan 6; (ii) requires Spartan 6 to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on Spartan 6 without Spartan 6’s prior written consent.

17. Disclaimers; Limitations of Liability

THE SPARTAN 6 CONTENT MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES.

SPARTAN 6 AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICE OR THE SPARTAN 6 CONTENT FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICE AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. SPARTAN 6 AND ITS SERVICE PROVIDERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SERVICE AND THE SPARTAN 6 CONTENT, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SPARTAN 6 IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SPARTAN 6 AND ITS SERVICE PROVIDERS, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER TYPE OF DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR COVER OR LOSS OF USE, DATA, REVENUE OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SERVICE, WITH THE DELAY OR INABILITY TO USE THE SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICE, OR FOR ANY SPARTAN 6 CONTENT, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE, EVEN IF SPARTAN 6 OR ANY OF SPARTAN 6’S SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE THE DATA IS PROCESSED IN THE UNITED STATES AND SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.

IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, SPARTAN 6 IS DETERMINED TO HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, CUSTOMER AGREES THAT THE AGGREGATE LIABILITY OF SPARTAN 6 AND ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SERVICE PROVIDERS, LICENSORS OR SUPPLIERS SHALL IN ALL CASES BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS OR THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER FOR THE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

SPARTAN 6 DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS USED BY CUSTOMER. SPARTAN 6’S LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT AND SPARTAN 6’S LIABILITY WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR THIRD PARTY CONTENT PROVIDED WITH THE SERVICE SHALL BE SUBJECT TO THIS SECTION.

CUSTOMER UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATION OF LIABILITY IS AN AGREED ALLOCATION OF RISK AND AN ESSENTIAL PART OF THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT ABSENT CUSTOMER’S AGREEMENT TO THIS LIMITATION OF LIABILITY, SPARTAN 6 WOULD NOT PROVIDE THE SERVICE TO CUSTOMER.

18. Termination, Suspension and Expiration

a. Termination for Cause - Either party may terminate this Agreement for cause: (i) upon 30 days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

b. Suspension for Prohibited Acts - Spartan 6 may suspend Customer’s or any User’s access to the Service for any of the following causes, and Spartan 6 shall provide prompt electronic or telephonic notice of such event: (i) any use of the Service by Customer that violates applicable local, provincial, federal, or foreign laws or regulations or the terms of this Agreement, (ii) Customer’s use of the Spartan 6 email send service that results in excessive bounce-backs, SPAM notices or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person.

c. Suspension for Non-Payment - Spartan 6 may suspend Customer’s access to all or any part of the Service for cause upon 10 days’ notice to Customer of non-payment of any amount due hereunder if such amount remains unpaid at the expiration of such period. Spartan 6 will not suspend the Service while Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

d. Suspension for Present Harm - If any Customer website on, or use of, the Service: (i) is being subjected to denial of service attacks or other disruptive activity, or (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Service or others, (iv) is consuming excessive bandwidth, or (v) is causing immediate, material and ongoing harm to Spartan 6 or others, then Spartan 6 may, with reasonably contemporaneous electronic or telephonic notice to Customer, suspend all or any access to the Service. In this extraordinary circumstance, Spartan 6 will use commercially reasonable efforts to limit the suspension to the affected portion of the Service and promptly resolve the issues causing the suspension of the Service.

e. Effect of Termination or Expiration - Immediately upon termination or expiration of this Agreement as provided herein, Customer shall cease all use of the Service and return or destroy all Spartan 6 Content in its possession. If Customer terminates this Agreement for cause, Spartan 6 shall promptly refund any fees that Customer has previously paid covering use of the Service after the effective date of such termination. If Spartan 6 terminates this Agreement for cause, Customer shall promptly pay all unpaid fees due through the end of the Contract Term. Other than as provided herein, fees are non-refundable.

f. Retrieval of Customer Data - Upon request by Customer made within 30 days after the date of termination or expiration of this Agreement, Spartan 6 will provide Customer with temporary access to the Service to retrieve, or Spartan 6 will provide Customer with copies of, all Customer Data then in its possession or control. After such 30-day period, Spartan 6 shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or control.

19. General

a. Amendment; No Waiver - Spartan 6 may update and change any part or all of this Agreement, including but not limited to the fees and charges associated with the use of the Service. If we update or change this Agreement, we will post the updated Agreement at http://www.spartan6.com/wiki/wiki.php?p=TermsOfService. The updated Agreement will become effective and binding on the next business day after they are posted. When we change this Agreement, we will modify the "Last Modified" date above. We encourage you to review this Agreement periodically. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.

b. Applicable Law - To the maximum extent permitted by law, this Agreement shall be governed by the laws of the province of Alberta, Canada without reference to conflicts of law principles, and both parties hereby consent to the exclusive jurisdiction and venue of courts in Calgary, Alberta, Canada, in all disputes arising out of or relating to the use of the Service. Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this paragraph.

c. Force Majeure - Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of Nature; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

d. Actions Permitted - Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than one year after the cause of action has accrued.

e. Relationship of the Parties - Spartan 6 and Customer agree that no joint venture, partnership, employment, or agency relationship exists between Customer and Spartan 6 as a result of this Agreement or Customer’s use of the Service.
f. Compliance with Laws - Spartan 6 will comply with all applicable Canadian provincial and federal laws in its provision of the Service and its handling of Customer Data. Spartan 6’s provision of the Service is subject to existing laws and legal process, including Spartan 6’s rights and obligations to cooperate and comply with governmental, court and law enforcement requests or requirements relating to Customer’s use of the Service or information provided to or gathered by Spartan 6 with respect to such use. Spartan 6 reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request.

g. Severability - If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.

h. Notices - Notice shall be sent to the contact address set forth here (as such may be changed by notice given to the other party), and shall be deemed delivered as of the date of actual receipt. To Spartan 6: Spartan 6 Inc., Suite 200 440-10816 Macleod Trail S.E., Calgary, Alberta, Canada, T2 J 5N8, Attention: Administrator. To Customer: Customer’s address as provided in Spartan 6’s account Information for Customer. Spartan 6 may give electronic notices applicable to its Service customer base by means of a general notice via the Service and may give electronic notices specific to Customer by email to appropriate Customer e-mail addresses on record in Spartan 6’s account information for Customer. Spartan 6 may give telephonic notice to Customer by calls to appropriate numbers on record in Spartan 6’s account information for Customer.

i. Entire Agreement - Unless otherwise expressly stated herein, this Agreement, along with any Spartan 6 exhibit or addendum hereto, including any Order Form, constitutes the entire agreement between Customer and Spartan 6 with respect to the Service and supersedes all prior or contemporaneous communications, proposals and agreements, whether electronic, oral or written, between Customer and Spartan 6 with respect to the subject of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Spartan 6 objects to and rejects any additional or different terms proposed by Customer, including those contained in Customer’s purchase order, acceptance form or website. Spartan 6’s failure to object elsewhere to any provisions of any subsequent document, communication, or act of Customer shall not be deemed a waiver of any of the terms hereof. The party’s obligations hereunder are neither contingent on the delivery of any future functionality or features of the Service nor dependent on any oral or written public comments made by Spartan 6 regarding future functionality or features of the Service.

j. Assignment - Customer will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without Spartan 6’s prior written consent. Spartan 6 may assign or transfer this agreement to any successor.

k. Headings - The headings of sections included in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement.

l. Language - It is the express wish of the parties that this agreement and all related documents be drawn up in English.

m. Contract for Services - The parties intend this Agreement to be a contract for the provision of services and not a contract for the sale of goods. To the fullest extent permitted by law, the provisions of any "model law", guidelines or substantially similar legislation as may be enacted, shall not apply to this Agreement. If Customer is located outside of the territory of Canada, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.

n. Export - Customer agrees to comply with all applicable export laws.

o. Authority - Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

p. Survival - The following sections shall survive the expiration or termination of this Agreement: Fees and Payments, Proprietary Rights, Publicity, Indemnification, Disclaimers, Limitations of Liability, Termination, Suspension and Expiration, and General.