PLEASE READ THESE KEPLER DEVELOPER TERMS (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY SPRUCE SYSTEMS, INC. (“SPRUCE”). BY CLICKING THE “ACCEPT” BUTTON OR OTHERWISE USING THE SERVICES, YOU (“DEVELOPER”) ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF DEVELOPER DOES NOT AGREE TO ALL OF THIS AGREEMENT, DO NOT USE OR ACCESS THE SERVICES. YOU AGREE TO BE BOUND BY THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT UNDER ALL APPLICABLE LAWS AND ON BEHALF OF DEVELOPER. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
1. Services.
1.1 License to Services. Subject to Developer’s compliance with all the terms and conditions of this Agreement, Spruce grants Developer a limited, non-exclusive, non-transferable, non-sublicensable right and license to use and access the products, services and data made available by Spruce to Developer related to Spruce’s Kepler product, including any software, data, interfaces, tools, APIs, derivatives, improvements, enhancements, and updates related thereto (collectively, the “Services”) solely for Developer’s internal business purposes in accordance with the documentation and information regarding such Services that are delivered by Spruce to Developer in any form, including any updates to such documentation provided by Spruce from time to time (the “Documentation”). The Services shall expressly exclude any open source software provided hereunder, and for the avoidance of doubt, any products, services or data made available by Spruce to Developer pursuant to an open source license shall be subject to the terms of such open source license.
1. 2 End User Terms. Developer shall require all Developer’s end users shall be required to acknowledge and accept Spruce’s Terms of Use for Kepler available at https://spruceid.com/termsofuse and Privacy Policy for Kepler available at https://spruceid.com/privacypolicy (together, the “Kepler End User Terms”) before using any of Developer’s services (“Developer Services”) that integrate the Services. Developer shall provide end users with a copy of, or a link to, the Kepler End User Terms prior to the applicable end user’s first use of the Developer Services.
1. 3 Third-Party Software. Developer acknowledges and agrees that the Services may operate on, with or using application programming interfaces (APIs) and/or other services and software operated, licensed or provided by third parties, including software that is subject to open source licenses (“Third Party Software”). Spruce is not responsible for the operation of any Third Party Software nor the availability or operation of the Services to the extent such availability and operation is dependent on Third Party Software. Developer is solely responsible for procuring any and all rights necessary for it to access Third Party Software and for complying with any applicable terms or conditions thereof. Spruce does not make any representations or warranties with respect to Third Party Software.
1. 4 Modifications and Adjustments. Spruce may in its sole discretion modify, enhance or otherwise change the applicable Services (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Spruce shall have no obligation under this Agreement or otherwise to provide any such Updates.
2. Proprietary Rights.
2. 1 Limited License. Except for the limited rights and licenses expressly granted to Developer herein, no other license is granted, no other use is permitted, and Spruce shall retain all rights, title and interests (including all proprietary and Intellectual Property Rights) in and to the Services, including all ideas, concepts, inventions, systems, data, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information that are used by Spruce in providing the Services, and all trademarks, tradenames and logos of Spruce, and all rights to patent, copyright, trade secret and other proprietary or Intellectual Property Rights.
2. 2 Aggregate Data. Developer agrees that Spruce is free to disclose aggregate measures of usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services hereunder, including that it could have acquired performing the same or similar services for another Developer. Furthermore, Developer agrees that Spruce shall have a perpetual, worldwide, non-exclusive, irrevocable right and license to use, store, copy, create derivatives, and archive data (a) to create anonymized compilations and analyses data (“Aggregate Data”); (b) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data (“Analyses”); and (c) to create, develop, enhance algorithms, machine learning and other generally available tools in connection with the Services using Aggregate Data. Spruce shall have exclusive ownership rights to, and the exclusive right to use, such Aggregate Data and Analyses for any purpose, including, but not limited to product improvement and marketing to other Developers of the Services; provided, however, that Spruce shall not distribute Aggregate Data and Analyses in a manner that is identifiable.
2. 3 Feedback. All Developer suggestions for correction, change or modification to the Services, evaluations, benchmark tests, and other feedback, information and reports provided to Spruce hereunder (collectively, “Feedback”), will be the property of Spruce and Developer shall and hereby does assign any rights in such Feedback to Spruce. Developer agrees to assist Spruce, at Spruce’s expense, in obtaining intellectual property protection for such Feedback, as Spruce may reasonably request.
2. 4 License Restrictions. Developer shall not, and shall not permit any third party to: (a) use any of Services to create any service, software, documentation or data that is similar to or competes with any aspect of the Services; (b) decompile, disassemble or reverse engineer the Services, or otherwise attempt to discover the source code, object code, logic, process or underlying methodology, structure, ideas or algorithms of the Services, or related trade secrets, or any software, documentation or data related to the Services, except to the extent this provision is expressly prohibited by statutory law; (c) copy, distribute, modify or create any derivative work of any part of the Services (or any portion thereof); (d) encumber, market, sublicense, publish, distribute, reproduce, resell, assign, transfer, rent, lease, sublicense, loan, or otherwise permit third parties to use the Services (or any portion thereof); (e) use the Services (or any portion thereof) for commercial time-sharing or service-bureau use or for any purpose other than its own internal use; or (f) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction.
3. Fees. Developer agrees to pay, and shall pay, the fees (if any) set forth on Spruce’s pricing page available at https://spruceid.com/pricing, as may be updated by Spruce from time to time.
4. Warranties and Disclaimers.
4. 1 Developer. Developer represents and warrants that: (a) Developer has the full power and authority to enter into and perform its obligations under this Agreement; (b) the execution of this Agreement by Developer, and the performance by Developer of its obligations and duties hereunder do not and will not violate any other agreement to which Developer is a party or by which it is otherwise bound; (c) when executed and delivered by Developer, this Agreement will constitute the legal, valid, and binding obligation of Developer, enforceable against Developer in accordance with its terms; (d) Developer will comply with all applicable laws, rules, and regulations in connection with performance of Developer’s obligations under this Agreement.
4. 2 DISCLAIMERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (OR ANY PORTION THEREOF), AND ALL RELATED INFORMATION AND TECHNOLOGY PROVIDED BY OR ON BEHALF OF SPRUCE ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPRUCE EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF ADVISED OF THE PURPOSE), ACCURACY, TITLE, AND/OR NON-INFRINGEMENT. IN ADDITION, SPRUCE DOES NOT WARRANT THAT ACCESS TO THE SERVICES (OR ANY PORTION THEREOF) WILL BE UNINTERRUPTED OR ERROR FREE. FURTHER, SPRUCE HAS NO RESPONSIBILITY FOR AND SHALL HAVE NO LIABILITY RELATED TO ANY BLOCKCHAIN WALLETS USED IN CONNECTION WITH THE SERVICES BY DEVELOPER’S END USERS AND DOES NOT STORE OR HAVE ACCESS TO ANY RELATED CREDENTIALS. IF AN END USER LOSES SUCH CREDENTIALS, THEN THE END USER MAY LOSE ACCESS TO ALL ASSETS STORED IN SUCH WALLET.
5. Term, Termination, Effect of Termination, and Survival.
5.1 Term. This Agreement shall commence on the date that Developer first uses or accesses the Services.
5. 2 Termination. Either party may terminate this Agreement at any time for any reason or no reason at all.
5.3 Effect of Termination and Survival. Upon termination or expiration of this Agreement for any reason: (a) Developer’s access to the Services shall immediately terminate and all licenses granted hereunder shall immediately terminate; (b) Developer shall return and make no further use of any equipment, property, Documentation and other items (and all copies thereof) belonging to Spruce. The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 2.2, 3, 4, 5, 6.3, 7 through 9 (inclusive).
6. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, SPRUCE’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, STRICT LIABILITY, NEGLIGENCE AND/OR OTHER TORT, SHALL IN NO EVENT EXCEED ONE HUNDRED DOLLARS ($100). IN NO EVENT WILL SPRUCE BE LIABLE FOR (I) ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, OR DATA USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY RELATED TO THE PROCUREMENT OF SUBSTITUTE GOODS, (II) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) ANY THIRD PARTY SOFTWARE. THE FOREGOING LIMITATIONS FORM AN ESSENTIAL BASIS FOR THIS AGREEMENT AND SHALL SURVIVE REGARDLESS OF THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE.
7. Indemnification. Developer shall defend, indemnify, and hold harmless Spruce and its affiliates, and each of their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to: (a) Developer’s use or misuse of the Services or intentional misconduct; (b) Developer’s violation of this Agreement; (c) Developer’s violation of any applicable law, rule or regulation; (d) Developer’s violation of any other party’s right, including without limitation any right of privacy or intellectual property rights; and (e) the Developer Services.
8. General Provisions.
8.1 Notices. All notices and other communications required or permitted under this Agreement shall be in writing, addressed (if to Developer) to the address set forth in the Developer Account, or (if to Spruce), to Spruce Systems, Inc. 228 Park Avenue S, New York, NY 10003. Notice shall be deemed effectively delivered only: (a) upon personal delivery, (b) upon delivery by a courier service as confirmed by written delivery confirmation, (c) upon delivery by email as confirmed by transmission receipt, or (d) three (3) business days after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid. Either party may change its address for notice by giving notice to the other party in accordance with this section.
8.2 Governing Law, Jurisdiction, Venue, and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Unless waived by Spruce in its sole discretion, exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in New York, New York having jurisdiction over Spruce’s offices, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
8.3 Force Majeure. Spruce shall be excused from any delay or failure in performance hereunder due to any labor dispute, government requirement, internet congestion or breakdown, epidemic or pandemic, or any other cause beyond its reasonable control.
8.4 Relationship of the Parties. The relationship between the parties shall only be that of independent contractors. Neither party is an agent, representative, partner, employer, or employee of the other party, and neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
8.5 Third Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by, Developer and Spruce. This Agreement will not be deemed to create any rights in third parties or to create any obligations of a party to any third parties.
8.6 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Developer agrees that, in the event of any breach or threatened breach of Section 3, Spruce may suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, Spruce shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
8.7 Publicity. Spruce may use and display Developer name and logo on Spruce’s website and other materials solely for the purposes of identifying Developer as a customer. Developer shall not use or otherwise display Spruce’s name or logo without Spruce’s prior written consent.
8.8 Assignment. Developer shall not assign nor transfer any obligations or benefit under this Agreement without the written consent of Spruce. Spruce may transfer, assign or delegate this Agreement and its rights and obligations without consent. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their successors and assigns.
8.9 Modifications. Spruce reserves the right to amend, modify or change this Agreement at any time and will use commercially reasonable efforts to notify Developer of the same. If Developer uses the Services in any way after such changes are effective, then Developer will be deemed to have agreed to all of the changes. This Agreement may not otherwise be amended, except as mutually agreed to by the parties in writing.
8.10 Entire Agreement. This Agreement is the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements, and all prior and contemporary proposals and discussions relating to the subject matter of this Agreement, and controls over the preprinted terms of any purchase order or similar document. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.
8.11 Severability. If any provision of this Agreement is determined to be unenforceable, that provision will be replaced with the valid one that most closely achieves the parties’ intent and the remainder of this Agreement will remain enforceable.
8.12 Headings. The headings in this Agreement are for convenience only and may not be used to interpret or construe the terms hereof.
