SPSSVideoTutor Terms & Conditions
The following terms and conditions apply to the services indicated by the attached Statement of Work (“SOW”). The “Project” consists of the creation of the deliverables identified in the SOW (“Deliverables”) and the performance of the services identified in the SOW (“Services”). The agreement (“Agreement) to perform the Services and provide the Deliverables is between SSPS Video Tutor (“SPSSVT”) and the client identified on the SOW (“Client”), and comprises the SOW and these terms and conditions. By executing the SOW, SPSS and Client are entering into a binding legal agreement effective as of the latest signature date shown on the SOW (“Effective Date”). SPSSVT and Client may be referred to herein as a “Party” or may be referred to jointly as the “Parties.”
Pricing and payment. The Price to perform the Project contemplated by this Agreement is set forth in the SOW. Except as set forth in the SOW, Client will be billed monthly for Services rendered, Deliverables provided, and expenses incurred. All payments are due net thirty days of the invoice date. If payment is overdue by 15 days, SPSS reserves the right to suspend services until payment is received and a revised SOW is entered into that accounts for the delay in the Project schedule.
Limitation of liability. SPSSVT’s liability under this Agreement, and Client’s sole remedy, shall be strictly limited to refund of payments actually received by SPSSVT from Client for the Project. To the maximum extent allowable under applicable law, in no event shall SPSSVT, its employees, principles, agents or contractors, be liable for any indirect, special, exemplary, consequential, or incidental damages, including but not limited to, loss of anticipated profits or revenue, economic loss, loss of data, loss of use of any product or any associated equipment, cost of capital, cost of substitute or replacement equipment, facilities or services, Client time, the claims of third parties, business interruption, infringement, or injury to property, regardless of the nature of the claim, including but not limited to, breach of warranty, breach of contract, tort (including negligence) or strict liability, even if SPSSVT has been advised of the possibility of such loss or damage. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply. In such states, the Parties agree that the SPSSVT’s liability shall be limited as set forth in the foregoing to the maximum extent permissible under applicable law. In the event of a dispute arising from this Agreement, SPSSVT shall be released from and discharged of all further obligations and liability to Client upon refund of payments made for the disputed Services, Deliverables or expenses and SPSSVT shall have the right to terminate any remaining SOW (in whole or in part) between Client and SPSSVT immediately and without further liability to Client. The Parties agree that any claim arising under, or related to this Agreement shall be brought pursuant to the dispute resolution procedures set forth herein within one year of the date the claimant new of, or should have known of, such claim. Failure to bring a claim within such one year period shall constitute a waiver of that claim.
Confidentiality and non-disclosure. In connection with the completion of the Project, SPSSVT and Client may each determine that it is necessary or desirable to share information with the other Party that the disclosing Party considers to be proprietary and confidential (“Confidential Information”).
1. The Parties agree that Confidential Information of a Party might include, but not be limited to that Party’s: (1) business plans, methods, and practices; (2) information identifying personnel, customers, and suppliers and the business relationships with such persons; (3) inventions, processes, methods, products, patent applications, and other proprietary rights; or (4) specifications, drawings, sketches, data files, documents, video tutorials, models, samples, tools, computer programs, technical information, or other related information.
2. Either Party may disclose Confidential Information to the other Party in confidence provided that the disclosing Party identifies such information as proprietary and confidential either by marking it “CONFIDENTIAL”, in the case of written materials, or, in the case of information that is disclosed orally or written materials that are not marked, by notifying the other Party of the proprietary and confidential nature of the information in a writing clearly identifying the disclosure and the scope of the information disclosed for which protection is sought. It is understood and agreed, however, that the receiving Party’s obligations with respect to such information shall not begin until proper notice is received. Notwithstanding the foregoing, it is agreed and understood that the Deliverables shall be deemed and treated as Client’s Confidential Information provided, however, that it is understood and agreed that the foregoing shall not prevent or restrict SPSSVT’s right to create similar deliverables for other clients provided it does not utilize Client’s Confidential Information when doing so.
3. The receiving Party (“Recipient”) shall refrain from disclosing Party’s Confidential Information to any contractor or other third party without prior, written approval from the disclosing Party and shall protect such Confidential Information from inadvertent disclosure to a third party using the same care and diligence that the Recipient uses to protect its own proprietary and confidential information, but in no case less than reasonable care. The Recipient shall also use the disclosing Party’s Confidential Information solely in connection with the Performance of this Agreement and for no other purpose without the prior written consent of the disclosing Party. The Recipient shall ensure that each of its employees, officers, directors, or agents who has access to Confidential Information disclosed under this Agreement is informed of its proprietary and confidential nature and is required to abide by the terms of this Agreement in such manner and to such an extent as shall enable the disclosing Party to take enforcement action against him or her. The Recipient of Confidential Information disclosed under this Agreement shall promptly notify the disclosing Party of any disclosure of such Confidential Information in violation of this Agreement or of any subpoena or other legal process requiring production or disclosure of said Confidential Information and shall co-operate fully with the disclosing Party, at the expense of the Disclosing Party, in damage limitation, recovery of compensation and/or any application to avoid or limit the effect of subpoena or other legal process. Nothing in the foregoing, however, shall be construed to prevent the Recipient from disclosing Confidential Information when required to by law.
4. All Confidential Information disclosed under this Agreement shall be and remain the property of the disclosing Party and nothing contained in this Agreement shall be construed as granting or conferring any rights to such Confidential Information on the other Party except the right to use such Confidential Information in the performance of this Agreement. The Recipient shall honor any request from the disclosing Party to promptly return or destroy all copies of Confidential Information disclosed or created under this Agreement and all notes related to such Confidential Information. The foregoing, however, shall not require either Party to destroy, alter or delete any electronic backups made in the ordinary course of business prior to the time such backup would otherwise be overwritten or destroyed according the Party’s ordinary disaster recovery procedures provided that such Party promptly destroys any Confidential Information in the event it is restored from such backup for any reason. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party may be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach.
5. The Parties’ confidentiality obligations under this Agreement shall not be construed to limit either Party’s right to develop independently or acquire products without use of the other Party’s Confidential Information. The disclosing Party acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information. Nothing in this Agreement will prohibit the Recipient from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
6. Notwithstanding the above, the Parties agree that information shall not be deemed Confidential Information and the Recipient shall have no obligation to hold in confidence such information, where such information (i) is already known to the Recipient, having been disclosed to the Recipient by a third party without such third party having an obligation of confidentiality to the disclosing Party; or (ii) is or becomes publicly known through no wrongful act of the Recipient, its employees, officers, directors, or agents; or (iii) is independently developed by the Recipient without reference to any Confidential Information disclosed hereunder; or (iv) is approved for release (and only to the extent so approved) by the disclosing Party; or (v) is disclosed pursuant to the lawful requirement of a court or governmental agency or where required by operation of law.
7. The Parties’ confidentiality and non-use obligations under this Agreement shall continue for three (3) years from the Effective Date. In the event either Party desires to have these protections continue for a longer period of time, the Parties may agree to do so only in a separate signed writing clearly and unambiguously defining the Confidential Information to be so protected, the period of protection, and any other applicable restrictions or limitations.
8. Neither Party will, without prior approval of the other Party, make any public announcement of or otherwise disclose the existence or the terms of this Agreement.
9. This Agreement in no way creates an obligation for either Party to disclose information to the other Party or to enter into any other agreement.
Term/Termination. This Agreement shall be in effect beginning on the Effective Date and shall remain in effect until all Deliverables and Services set forth in the SOW have been completed, unless this Agreement is terminated earlier as provided for herein. Either Party shall have the right to terminate this Agreement upon a material breach by the other Party, provided that such breach is not remedied within thirty (30) days of the breaching Party’s receipt of written notice of such breach. Either Party may terminate this Agreement immediately if the other Party becomes insolvent, makes an assignment for the benefit of creditors, appoints (or has appointed on its behalf) a trustee, receiver or similar officer, or commences a proceeding seeking reorganization, liquidation or similar relief under any bankruptcy, insolvency or similar debtor-relief statute, or attempts to assign this Agreement or any license granted hereunder in any manner not explicitly permitted hereunder. Consultant may terminate the Agreement for any reason with 30 days written notice, and may also terminate this Agreement without notice immediately upon Client defaulting on its payment obligations. The terms of this Agreement that by their nature should survive termination of this Agreement shall survive termination of this Agreement including, without limitation, the provisions concerning payment, protection of Confidential Information, limitations of liability, choice of law, choice of venue, and waivers and limitations relating to warranties.
Warranties. SPSSVT warrants and represents that it has authority to enter into this Agreement and to perform its duties hereunder and that the Services will be performed in a professional and workmanlike manner. Client and its signatory also represent and warrant that they have full power and authority to enter into this Agreement. SPSSVT does not warrant that the Deliverables or Services will be uninterrupted or error-free, or that use of the Services or Deliverables will secure or enable Client to secure any specific business or economic result. Client’s sole and exclusive remedy for a breach of warranty shall be, at SPSSVT’s election, (i) refund of the amount paid for the allegedly non-conforming Services or Deliverables or (ii) re-performance of the allegedly non-conforming Services or correction of the allegedly non-conforming Deliverable. SPSSVT HEREBY DISCLAIMS ANY AND ALL IMPLIED AND EXPRESS WARRANTIES NOT SPECIFICALLY SET FORTH HEREIN INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTY IS MADE THAT THE SERVICES OR DELIVERABLES PROVIDED HEREUNDER SHALL MEET CLIENT’S NEEDS. NO TERM, CONDITION OR PROVISION OF ANY SOW MAY LIMIT OR RESTRICT THIS DISCLAIMER OF WARRANTIES IN ANY WAY OR TO ANY EXTENT.
Force majeure. SPSSVT shall not be liable for damages, delay, or default in performance if such delay or default is caused by conditions beyond its control including, but not limited to hurricanes, natural disasters, acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections, and/or any other cause beyond the reasonable control of SPSSVT.
Dispute resolution. This Agreement shall be governed by the laws of the State of Florida without giving effect to its choice of law principles. Client and Consultant agree that all actions to enforce or terminate this Agreement or any license granted hereunder shall be brought exclusively in the courts of Broward County, Florida, or the United States District Court for the Southern District of Florida, and the proper courts of appeal therefrom.
General terms. The failure of either Party to exercise or enforce any provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing, nor shall it be construed as a waiver of any future failure to exercise or enforce any right or provision of this Agreement. Neither this Agreement, nor any term or condition hereof, shall be deemed to create an agency, joint venture, or partnership relationship between the Parties, nor shall either Party hold itself out to third parties as having such a relationship with the other Party. This Agreement (which includes the properly executed SOW) constitutes the entire contract and understanding of the Parties with respect to the subject matter hereof and supersedes all previous oral or written statements, negotiations, proposals, or communications not expressly set forth herein. Each Party expressly warrants and represents that, in entering into this Agreement, it is not relying on any promise, agreement or statement, whether oral or written, that is not fully set forth in this Agreement.
