Terms & Conditions
THESE SPILLOVER STANDARD TERMS AND CONDITIONS (the “Spillover Standard Terms”) and that certain Marketing Services Agreement (“Marketing Services Agreement”) between your company (“Client” or “Customer”), and Spillover Software Group, LLC (for purposes of this Agreement, “Spillover”") set forth the terms and conditions applicable to the products and/or services offered by Spillover to Client. In exchange for the consideration set forth in the Marketing Services Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged by both parties, Client and Spillover agree as follows, intending to be legally bound:
1. The Agreement. Spillover will provide to Client the Marketing Services as agreed in the Marketing Services Agreement, subject to Client’s payment of the Consideration (defined herein) as set forth therein and all terms and conditions of the Marketing Services Agreement and these Spillover Standard Terms. Together, the Marketing Services Agreement and these Spillover Standard Terms constitute one binding agreement between the parties (the “Agreement”). The Agreement shall become legally binding on the parties on the date on which the Marketing Services Agreement is signed by Spillover (the “Effective Date”). The information in the Marketing Services Agreement regarding the amount of Consideration to be paid by Client, the payment process, and the Term, supersede any directly conflicting terms in these Spillover Standard Terms except for Sections 11(c),14(k) and 14(l) herein, which shall control. For all other purposes, these Spillover Standard Terms shall control.
2. General. All capitalized terms used herein and not otherwise defined shall have the meaning assigned to them in the Marketing Services Agreement. All other capitalized terms used herein shall have the meaning assigned to them below or elsewhere in the text of these Spillover Standard Terms:
(a) Website Development/Design Services. If agreed in the Marketing Services Agreement, Spillover provides website development and/or design services as provided in the Marketing Services Agreement. Spillover will liaise with Client to develop the look and feel of the website based on available templates as seen on www.spillover.com. as applicable, and will develop and deliver the website on a timetable to be agreed by the parties, recognizing that late delivery by Spillover will be excused to the extent caused by the Client or by factors outside of Spillover’s control. The website will be deemed accepted by Client once the Website is launched live and / or the Client begins conducting services or transactions via the website.
(b) Web Hosting Services. If agreed in the Marketing Services Agreement, Spillover will provide web hosting services twenty-four (24) hours per day, seven (7) days per week, subject to the Service Level. “Service Level” means that Spillover will use commercially reasonable efforts to make the relevant Marketing Services available at least 98% of the time such Marketing Services are needed by Client to conduct its business, measured over a calendar year, excluding unavailability due to Permitted Interruptions. “Permitted Interruptions” means any service downtime or degradation except as attributable to (A) scheduled downtime; (B) failure of third party products, software, services, or networks; (C) failures due to Client’s changes to the relevant software or equipment; (D) a Force Majeure Event; or (E) any period of suspension as authorized in this Agreement.
(c) Support and Maintenance Services. Spillover and Client will designate contact numbers and/or e-mail addresses so that Client can request the purchased support and maintenance services, if any, as provided in the Marketing Services Agreement. Spillover will respond to each request as appropriate given the nature of the problem, and will use commercially reasonable efforts to ensure that Spillover-provided Marketing Services meet the Service Level as defined above. If agreed in the Marketing Services Agreement, Spillover will provide other support services to Client on a case-by-case basis.
(d) Photography and Videography Services. Spillover agrees to provide to Client the Photography and Videography Services identified in the Marketing Services Agreement, if any, for the term of the Agreement, as subject to its Terms, as elected by Client. Any Photo Work Product or Videos Work Product created by Spillover in providing Photography Services and Videography Services are owned by Spillover. If Client elects to pay for a Professional Photo Shoot or Professional Video Shoot, Spillover hereby grants to Client a royalty free revocable license to use the photographs and images for marketing purposes during and after the Term of this Agreement. If Client elects to have a Spillover Sponsored Photo Shoot or Spillover Sponsored Video Shoot, Spillover hereby grants to Client a royalty free revocable license to use the photographs and images only for the duration of the Term of this Agreement.
(e) Licensed Software. Spillover agrees to provide to Client the licensed software identified as a Marketing Service in the Marketing Services Agreement, if any, for the Term of this Agreement and subject to its terms. The relevant licensed software will be delivered electronically, on tangible media, or by other means on or before the date referenced in the Marketing Services Agreement. Spillover hereby grants to Client a non-exclusive, non-sublicensable, and non-transferable license during the Term to use the licensed software solely for Client’s internal business purposes.
4. Change of Account. In the event that Client determines that a change in the scope of Marketing Services is desired, Client shall notify Spillover and the parties will negotiate in good faith to determine the mutually agreed changes to the scope of Marketing Services and a corresponding adjustment of Consideration, if any, in connection with such change, provided that neither party is under any obligation to agree to any changes to the Marketing Services and/or the Consideration. Any and all changes to the Marketing Services and/or the Consideration require a written change of account signed by both parties (the “Change of Account”). A fully signed Change of Account shall constitute an amendment to the Agreement.
5. Ownership of Materials.
(a) Client Owns Client Materials. As between Client and Spillover, Client shall continue to own all Intellectual Property rights and all other rights associated with the Client Materials. For the duration of the Term, Client hereby provides a royalty free license to Spillover to use and to reproduce, modify, distribute, display, and to make modifications to and derivative works of the Client Materials in the course of providing the Marketing Services to Client, to market and promote the Restaurant(s) and Spillover’ business, and (if applicable) to market, promote and sell Restaurant services. The foregoing license applies to Spillover’ use of Client Materials in all media and via Spillover platforms and/or its various affiliated, contracted, or licensed marketing and sales channels. Client represents and warrants that (A) it owns, or has the necessary permissions, to grant the license contained in this Section 5.a.; (B) the Client Materials do not violate any third-party Intellectual Property rights; and (C) the Client Materials contain no false or defamatory material or material that violates or advocates the violation of any law or regulation. If Client paid for a Professional Photo Shoot or Professional Video Shoot, and Client has Terminated its Agreement with Spillover per the Terms, with no outstanding monies owed to Spillover, then Client has the right to continue to use such Work Product as was created during these photo or video shoots under a usage royalty as outlined in 3(d) above.
(b) Spillover Owns Spillover Materials. As between Client and Spillover, Spillover shall continue to own all Intellectual Property rights and all other rights associated with the Spillover Materials. Spillover hereby provides a revocable royalty free license to Client to use and display the Spillover Materials as contained in the Marketing Services for the duration of the Term. Spillover owns the rights to all Photo Work Product and all Video Work Product generated by Spillover as part of the Marketing Services and may use such Work Product in any way it wishes to do so following Termination of this Agreement.
6. Trademarks. Each of Client and Spillover owns its own names and trademarks, and all goodwill associated therewith (the “Marks”), and will not use (or facilitate the use by others of) the names or trademarks of the other apart from the relevant licenses set forth in Section 5, without the prior written consent of the other party. Each party hereby acknowledges the other party’s right, title and interest in and to its Marks and such other party’s exclusive right to use, register and license the use of its Marks. Any and all goodwill arising from the use of a party’s Marks hereunder shall inure solely to the benefit of the owner, and neither during nor after the termination of this Agreement shall either party assert any claim to the other’s Mark(s). Neither party shall take any action that could be detrimental to the goodwill associated with the other’s Marks. Each party covenants and agrees that it will not, during or after the Term: (i) claim or assert title to any Mark of the other party, (ii) attempt to register any Mark of the other party anywhere in the world, (iii) claim any right to use any Mark of the other party, except to the extent expressly permitted by this Agreement, (iv) use any other trademark, brand name, trade name, symbol, design (including a translation) that the other party reasonably believes is confusingly similar to the Mark(s) of such other party, (v) contest or deny the validity or enforceability of the other party’s Mark(s) or of such other party’s interest therein, or (vi) oppose, object to, or seek to cancel any registration of the other party’s Mark(s), nor aid others in doing so. Client acknowledges and agrees that an automatically generated identifying footer stating “Powered by Spillover” or a similar message may appear on Marketing Services as appropriate.
7. Data Capture and Usage.
(a) Client End User Data. Client hereby grants to Spillover a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the End User Data and perform all acts with respect to the End User Data as may be necessary for Spillover to provide the Marketing Services to Client. Client agrees and acknowledges that (i) Spillover is not limited in its use of End User data, throughout the term of the Agreement and after its termination, (ii) Spillover has no obligation to retain any End User Data after termination of this Agreement, but may, at its election do so, and continue to use such End User at its sole discretion, for marketing data analytics and other purposes whereby any Resultant Data is owned by Spillover, and (iii) at Termination of this Agreement, Client has a thirty (30) day period during which they may request, in writing, a copy of this End User Data which shall be provided to them by Spillover in an industry standard format at Customer cost. Failure to make such a request may result in such End User Data being irretrievably deleted and/or amalgamated into a larger pool of Spillover data making retrieval impossible after thirty (30) days following termination. Client hereby unconditionally and irrevocably grants to Spillover an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
(b) Privacy and Permissions. Client is responsible for publishing its own privacy policy in conformity with applicable law to govern its collection of End User Data, and to allow for the usage and/or sharing of such data as referenced above. Client acknowledges that Client is responsible to secure consent to use the End User information or data for the particular marketing methods (e.g., text messaging, e-mailing, etc.) undertaken hereunder by Client or by Spillover on Client’s behalf, and that it is Client’s sole responsibility to ensure it has the requisite consent from individuals, as may be needed, prior to Client or Spillover engaging in any communication with End Users. Client agrees also to be bound by the Spillover.com Customer Privacy policy accessible at www.spillover.com.
(c) Security. Client is responsible to employ reasonable physical protections to guard Client’s equipment, facilities, systems, and networks used in connection with the Marketing Services, and to guard against unauthorized access to the same. Client will take reasonable measures to avoid the uploading or other infiltration of viruses, malware, spyware and other harmful code into such hardware, systems, and networks. Spillover reserves the right to deny access to Marketing Services to any user that Spillover reasonably believes poses a security risk.
8. Items for Which Spillover is Not Responsible. The parties agree that Spillover is not responsible or liable under this Agreement for:
(a) Delays in Spillover’ performance to the extent caused by Client, or by Permitted Interruptions.
(b) Client’s legal terms of service, privacy policies, or Client’s other legal compliance requirements.
(c) Client’s failure to control access to Client’s equipment, facilities, systems, and networks.
(d) The uploading or other infiltration of harmful code, viruses, malware, spyware and other harmful code into Client’s hardware, systems, and networks which is not the result of Spillover’ gross negligence or willful misconduct.
(e) Obtaining permission for Client to use any distribution list.
(f) Client’s back-up of its software, systems, and networks (including without limitation, back-ups of End User Data).
(g) The quality or speed of Client’s network connectivity.
(h) Changes to Client’s hardware, software, network or connectivity made by anyone other than Spillover after initiation of the Marketing Services.
(i) Any license fees payable to third parties for use of Client Materials, or any third-party permissions needed prior to using Client Materials. Specifically, Spillover is not responsible for verifying ownership of any pictures or materials supplied by Client to Spillover including pictures and product descriptions used on a previous Client website or marketing campaign. It is the Clients responsibility to confirm they have the right to use all pictures or product descriptions in their Client Materials and to notify Spillover immediately if they do not have such rights or permission and to request Spillover to remove them from Clients website or Client Materials.
(j) The nature or content of Client Materials, which includes (without limitation) social media content posted or provided by Client. Client assumes all risks associated with the usage of Client Materials and the reliance by third parties on its accuracy, completeness, or usefulness.
(k) Spillover’ removal of Client Material from any Marketing Service upon Spillover’ reasonable determination that such Client Material is in breach of any term of this Agreement.
(l) Any third-party warranties or other commercial terms applicable to third party hardware or software.
9. Client’s Key Responsibilities. Client covenants, represents, and warrants that:
(a) Client is duly organized under the laws of its home state.
(b) Client will use the Marketing Services only in compliance with this Agreement and all applicable laws.
(c) Client will not use the Marketing Services in a manner that violates the Intellectual Property rights, privacy rights, or other rights of any third party.
(d) Client will not remove the copyright, trademark, or other Intellectual Property designations from the Marketing Services.
(e) Client is not domiciled in, nor a resident of, and is not under control of, any country to which the United States has prohibited export.
(f) Neither Client nor any of its board members, executives, or shareholders are listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, or Specially Designated Narcotic Traffickers, nor on the United States Department of Commerce Table of Denial Orders.
(g) Client 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 constituting or contained within the Marketing Services.
(h) Client will not modify or create derivative works based on the Marketing Services, or copy (other than in connection with its authorized use of the Marketing Services), distribute, pledge, assign, or otherwise transfer or encumber rights to the Marketing Services.
(i) Client will not rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Marketing Services or information or results derived from the Marketing Services to any third party, including without limitation via any time-sharing, service bureau, software as a service, cloud, or other similar service.
(j) Client will not use the Marketing Services for the benefit of any third party, nor to conduct a comparative analysis with third party competitors of Spillover.
(k) Client is responsible for all Client Materials and hereby indemnifies Spillover from any fees, claims or costs associated with the use of Client Materials on any Spillover provided website or in the provision of the Marketing Services. Specifically, Client is responsible for all pictures provided to Spillover for the website or the provision of ongoing Marketing Services and in ensuring that any pictures supplied to Spillover are owned by, or have been licensed to the Client such that they have full permission to use these pictures and can pass such permission onto Spillover. Client acknowledges that Spillover cannot validate ownership of any pictures provided by Client including those that may have been on previous websites or used by Client in previous marketing campaigns and Client confirms that by allowing Spillover use any such pictures that Client is accepting responsibility for validating that all necessary permissions have been granted and that Client fully indemnifies Spillover for any claims against Client or Spillover that results from the usage of such pictures or Client Materials.
(l) Client will not use Client Materials, Spillover Materials or any other materials to imply that Client or its communications are authorized or endorsed by Spillover.
(m) Client will use any text messaging services that are provided by Spillover in the approved manner as defined in the Spillover Customer Privacy Policy (www.spillover.com/privacy-policy) and per the CITA recommendations, and will at all times ensure that only End Users who have opted-in for messaging will be marked as such on the Spillover database. It is the Clients’ responsibility to ensure that End Users are not added to the text messaging database unless they have opted-in for text messaging and that all campaigns to encourage such opt-in follow the CITA guidelines.
10. Term and Termination. This Agreement is legally binding on the parties as of the Effective Date. The term during which the Marketing Services will be provided shall begin on the 1st day of the following calendar month from the Activation Date (or on the Default Activation Date as defined above) and will continue for the time period designated as Term in the Marketing Services Agreement; or if none, then for a period of ninety (90) days (in either case, the “Initial Term”). This Agreement shall then renew automatically for the same period of time as designated as the Initial Term in the Marketing Services Agreement; or if none, for successive periods of ninety (90) days (each a “Renewal Term,” and together with the Initial Term, the “Term”), under the same terms and conditions.
Client may cancel the automatic renewal of this Agreement by giving written notice (e-mail to billing@spillover.com will suffice) to Spillover (“Termination Notice”) before the end of the Initial Term or then-current Renewal Term so long as such notice period, where Term is 30 days, is no less than 30 days notice. Termination Notice where the Term is 90 days, or where no Term has been stipulated in the Marketing Services Agreement shall be no less than 90 days notice prior to the end of the Term. Agreements that have a Term of more than 90 days shall require a Termination Notice period of 150 days notice prior to the end of the Term.
ALL TERMS AND CONSIDERATION DUE SHALL RUN TO THE LAST DAY OF THE MONTH IN WHICH THEY WOULD OTHERWISE EXPIRE. THIS INCLUDES THE CALCULATION OF THE TERMINATION PERIOD AND CONSIDERATION DUE THEREIN AFTER A TERMINATION NOTICE IS GIVEN.
Failure to provide Termination Notice within the designated notice period from the end of the current Term will lead to automatic renewal of the Marketing Services Agreement for an additional Renewal Term and services will continue to be provided by Spillover and must be paid for by Client until the end of that Renewal Term whereby the Termination Notice already given will then be deemed to have cancelled the Agreement at the end of the subsequent Renewal Term.
In addition to a Termination Notice by the Client:
(a) Either party may terminate the Agreement, effective on written notice to the other party, if the other party commits a material breach of this Agreement, and such breach is (A) incapable of being cured; or (B) although capable of being cured, remains uncured ninety (90) days after the non-breaching party provides the breaching party with written notice describing such breach..
(b) Spillover may terminate this Agreement on thirty (30) days’ notice to Client, for its convenience, in its sole discretion.
(c) Either party may terminate the Agreement, effective on written notice to the other party, if the other party (A) becomes insolvent or generally unable to pay its debts as they become due; (B) files or has filed against it a petition for bankruptcy or becomes subject, voluntarily or involuntarily, to any bankruptcy proceeding; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by court order to take charge of or sell any material portion of its property or business.
(d) Notwithstanding anything in Section 10.a. above, Spillover may terminate this Agreement, effective on written notice to Client, if (A) Client fails to pay any Consideration hereunder and such failure continues for ten (10) days after Client receives written notice from Spillover; or (B) Client is found in violation of any covenant, representation or warranty in Sections 5.a. or 9 of this Agreement.
11. Effect of Expiration or Termination. Upon the expiration or termination of this Agreement for any reason, (A) Client shall immediately cease use of all Marketing Services, (B) unless otherwise provided herein, all of Client’s rights and licenses to use the Marketing Services shall terminate, as shall each party’s respective permissions to use the materials provided by the other hereunder, and (C) Client shall pay Spillover any outstanding Consideration fees which are owed. If Client elects to have Spillover cease all Marketing Services immediately upon issuing a Termination Notice then Client accepts that Client is still liable for any Consideration that would have been due to be paid within the remainder of the Term and, if relevant based on the notice period given, also the Renewal Term, of this Agreement from the Termination Notice date. (D) Client shall return to Spillover all Spillover Materials then in its possession or control.
So long as Client has made full payment for the value of all Consideration due to Spillover under this Agreement, and provided that Client is not otherwise in breach, Spillover will provide to Client all Client Materials, End User Data (if requested), and Client profiles, passwords, websites, apps, accounts, and domain names then in its possession or control. (A reasonable service fee may be required for provision of End User Data.) In addition, if Client had previously paid Spillover for a Professional Photo Shoot or Professional Video Shoot, Spillover shall provide a copy of this Work Product for Clients’ ongoing use, under a royalty free revocable license. In the event Spillover is not paid all amounts due within thirty (30) days of such expiration or termination, then Spillover may delete, disable, alter, remove, retain, or otherwise dispose of all Client Materials, End User Data, and Client profiles, passwords, websites, apps, accounts, and domain names then in its possession or control.
So long as Client has Terminated per the Terms of this Agreement then Client may elect to purchase an ongoing license for the Photo Work Product generated from a Spillover Sponsored Photo Shoot for a one-time fee of $599. Likewise, Client may elect to purchase an ongoing license for Video Work Product generated from a Spillover Sponsored Video Shoot for a one-time fee of $1,000. It is at Spillovers sole discretion whether Spillover will agree to sell such Work Product and Spillover reserves the right to adjust the price for such Work Product at any time, with or without notice. Client may not use Work Product after Termination without acquiring a license from Spillover if Client availed of a Spillover Sponsored Photo Shoot or a Spillover Sponsored Video Shoot. Spillover owns, and continues to own after Agreement Termination, and may use in any way it chooses, all Work Product produced from any and all Spillover organized photo or video shoots whether they were sponsored by Spillover or fully paid for by the Client at the time.
12. Suspension of Marketing Services. Spillover reserves the right to suspend all or a portion of the Marketing Services: (A) for up to thirty (30) days in the event that Spillover reasonably believes the Client Materials are in violation of Client’s representations or warranties, or if Spillover reasonably believes the Client is using the Marketing Services or End User Data for any purpose not authorized under this Agreement, including but not limited to any unlawful purpose or in violation of any third party’s rights; (B) for up to sixty (60) days in the event Client’s payment of Consideration hereunder is more than thirty (30) days in arrears; or (C) during any cure period referenced in Section 10.a. or 10.b. above relating to a breach of the Agreement by Client. During any such period of suspension, Client shall remain responsible for the payment of all Consideration due hereunder. At the end of any such suspension period, Spillover must either restore the Marketing Services or pursue termination of the Agreement as set forth in Section 10. If Marketing Services are restored, a reconnection fee may be required.
13. Client’s Responsibility for Restaurant(s). The parties agree that Client shall be liable for any breach or default of this Agreement by the Restaurant(s) or for any other actions or omissions of any Restaurant with respect to this Agreement and/or the Marketing Services.
14. Fees and Payments. Subject to 14(l) below, the agreed pricing for the Marketing Services and the general payment terms are reflected in the Marketing Services Agreement including any initial fees and recurring fees (the “Consideration”), and Client agrees to pay such Consideration on such terms. In addition:
(a) Client agrees to deliver first payment on the Effective Date of the Agreement and, unless otherwise agreed in the Marketing Services Agreement, that such first payment will include any once off or implementation fees along with the first months recurring fees. Client further agrees that Spillover will charge for the first month (by crediting Client account balance for the pre-payment already made) on the Activation Date or if none, on the Default Activation Date. If this date occurs mid month Spillover shall include a proportional fee to the end of the following month, and charge Client for same, such that Client billing is now adjusted to begin on the 1st day of each month.
(b) Client agrees to make payments thereafter on or before the 15th business day of each month, unless otherwise agreed in the Marketing Services Agreement.
(c) Spillover charges and collects monthly in advance for use of the Services. Client authorizes Spillover to, and Spillover will automatically charge Client’s credit card or EFT (or issue an invoice if Spillover approves such an arrangement) for the monthly fee(s) along with any initial set-up fees as outlined in the Marketing Services Agreement during the Initial Term, and Spillover will thereafter automatically bill Client’s credit card or EFT (or issue an invoice to Client) monthly in advance for the period of the Term or Renewal Term. The renewal fee(s) subject to 14(l) will be equal to the then-current Service fee in effect at the time of such Renewal.
(d) If client uses Online Ordering, client agrees to a $1.00 per order fee paid by the consumer and payable to Spillover for any orders that are less than $50.00 and a $2.00 per order fee paid by the consumer for any orders where the total value equals or exceeds $50.00. This fee will be totaled for the previous month and included in the standard invoice as a line item of “Online Order Fee” or will be collected with the order, paid for by the end customer and remitted to Spillover within 24 hours, depending on payment gateway solution used.
(e) Spillover will begin billing for contracted services once the solution is live or 60 days after the Effective Date of the Agreement (whichever is sooner). Spillover will apply any due at signing payments along with the first month of billed service paid by Client at the Effective Date. In the event that the contracted services are partially live, Spillover may bill partial monthly fees for services prorated according to the percentage of contracted service that are live. Once any setup work for contracted services has been initiated by Spillover, any and all due at signing payments (including the first month's software and service fees) are non-refundable. If Client opts to delay their go-live past 90 days, then Spillover will apply the first month recurring fees to the cost of implementation and set-up and will at Client request hold the Client site and set-up in stasis mode for up to a further 30 days. After 120 days the Client shall be deemed by Spillover to be a false start, this will be communicated to the Client by the Spillover project manager and all work will be shut-down on the Clients project (“False Start”). If subsequent to a False Start being declared a Client wishes to proceed with their products and services as originally defined in the MSA, or a variant of that solution, then a further implementation fee will be due to re-start the project.
(f) Unless otherwise stated in the Marketing Services Agreement, Spillover’ 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”). Client is responsible for paying all Taxes associated with Client’s purchases hereunder or they may be added by Spillover to the fees if required by State or federal laws.
(g) Client agrees to provide Spillover with complete and accurate billing and contact information. This information includes Client's legal company name, street address, email address, and name and telephone number of an authorized billing contact and license administrator. Client agrees to update this information within thirty (30) days of any change to it. If the contact information Client has provided is false or fraudulent, Spillover reserves the right to terminate this Agreement and/or Client's access to the Services in addition to any other legal or equitable remedies it may have.
(h) For credit card payers, service fees shall accrue at the start of the initial Term, and Client's credit card will be charged at that time. If Client 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. Client'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.
(i) If Client believes that the bill is incorrect, Client must notify Spillover in writing within thirty (30) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
(j) In addition to any other rights granted to Spillover herein, delinquent invoices (accounts in arrears) are subject to interest of 2.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including attorney's fees.
(k) If Client or Spillover initiates Termination of this Agreement, Client will be obligated to pay the balance due on Client's account computed in accordance with this Section. Client further agrees that if Client has initiated Termination via a Termination Notice and Client no longer wishes Spillover to provide Marketing Services then Client further accepts and agrees that Client will be obligated to pay the fees for such Marketing Services that are still due to be provided under the Term or Renewal Term and would have been due in the future, such fees to be paid in one payment. Client agrees that Spillover may charge any such unpaid fees and future fees that would have been charged under the remaining Term, to Client's credit card or otherwise bill Client for such unpaid fees.
(l) Client agrees that Spillover may from time to time increase its recurring monthly fees for Clients Marketing Services in line with reasonable inflationary costs, so long as Client has been receiving such services for at least six months from the Activation Date, and so long as Spillover notifies Client via email of its intention to increase such fees and gives Client fourteen (14) days notice prior to applying any increase.
(m) If Client uses the Spillover supported delivery solution in conjunction with Online Ordering, then our technology partner Inhouse Delivery (IHD) will provide the technology to avail of a delivery tracking and driver network system. All Online orders that use IHD software will also include a $1.50 per order usage fee in addition to the actual delivery fee and the Online Ordering transaction fee. This Delivery Processing Fee will be collected at time of order and will either be charged to the end consumer or Client depending on the approach agreed with Client. All delivery issues are handled between Client and IHD through the IHD portal and Spillover is at no time responsible for missed deliveries or lost food orders. Client expressly accepts that the delivery part of Online Ordering is between Client and IHD and that Spillover has no responsibility for the performance of this service nor financial responsibility for loss of food product or customer refunds.
15. Indemnification. Client shall indemnify, defend and hold harmless Spillover, Spillover’ affiliates, and their respective members, managers, directors, officers, employees and agents (the “Spillover Parties”) from and against any and all third party demands, claims, actions or proceedings seeking a remedy for personal injury (including death) to any person, damage to the property (real, personal or intellectual) of any person or entity, or any financial or commercial harm or loss, and all fines, judgments, settlements, penalties, liabilities, losses, costs and expenses (including reasonable attorneys’ fees and expenses) suffered by any Spillover Party in direct connection therewith, to the extent caused by (A) Client’s breach of any covenant, representation, warranty, or other material term of this Agreement; (B) Client’s negligence or willful misconduct; (C) any actual or alleged harm to any person while on the premises of Client’s Restaurant(s); or (D) the violation by Client of any applicable law or regulation in its use of the Marketing Services, including without limitation all laws and regulations governing marketing contests and sweepstakes; (E) Client providing Spillover with images or Client Materials for display on Clients website or within their email marketing communications when it is subsequently shown that Client did not own the copyright for such images, or have the necessary permissions to use them in such a manner; (F) Client providing email contact details or text phone details for Spillover Marketing Services, where Client did not have express permission to market to the End Users or (G) Client’s website being the subject of an ADA compliance claim. For purposes of (A) through (G) above, the term “Client” shall be deemed to mean Client, the Restaurant(s), their affiliates, or any of their respective directors, officers, members, customers/End Users, employees, agents, contractors, sub-contractors or permitted assignees.
16. Disclaimer of Warranties. THE MARKETING SERVICES ARE PROVIDED ON AND “AS IS” BASIS. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 5.b. ABOVE, SPILLOVER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE MARKETING SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, (B) WARRANTY OF NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR (C) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SPILLOVER DOES NOT WARRANT AGAINST INTERFERENCE WITH CLIENT’S ENJOYMENT OF THE MARKETING SERVICES OR THAT THE MARKETING SERVICES WILL MEET CLIENT’S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY MARKETING SERVICE WILL CONTINUE TO BE MADE AVAILABLE FOR PURCHASE BEYOND THE TERM, THAT DEFECTS IN THE MARKETING SERVICES WILL BE CORRECTED, OR THAT THE MARKETING SERVICES WILL BE COMPATIBLE OR WILL WORK WITH ANY THIRD-PARTY HARDWARE, SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES. ACTIVATION OF THE MARKETING SERVICES MAY AFFECT THE USABILITY OF THIRD PARTY HARDWARE, SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES.
17. Limitations on Types of Damages. THE MARKETING SERVICES 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 DAMAGES RESULTING FROM SUCH PROBLEMS. IN NO EVENT SHALL SPILLOVER OR ANY OF ITS AFFILIATES, MEMBERS, OR REPRESENTATIVES BE LIABLE UNDER THIS AGREEMENT TO CLIENT OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, CORRUPTION OR LOSS OF DATA, SECURITY BREACH, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION, OR CLIENT’S INABILITY TO USE THE MARKETING SERVICES, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT CLIENT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
18. Maximum Liability. EXCEPT FOR INSTANCES IN WHICH APPLICABLE LAW DOES NOT ALLOW SUCH LIMITATIONS, IN NO EVENT SHALL SPILLOVER OR ANY OF ITS AFFILIATES’, MEMBERS’, OR REPRESENTATIVES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE LESSER OF (A) THE RETAIL VALUE OF IN-KIND CONSIDERATION PROVIDED BY CLIENT AND RECEIVED BY SPILLOVER DURING THE PAST THREE (3) MONTHS, (B) THE AMOUNT OF CASH CONSIDERATION PAID BY CLIENT AND RECEIVED BY SPILLOVER IN THE PAST THREE (3) MONTHS, OR (C) $1,000.
19. If Remedy Fails of Essential Purpose. THE LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN SECTIONS 17 AND 18 SHALL APPLY EVEN IF CLIENT’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. Client acknowledges and agrees that the parties entered into this Agreement in reliance upon the limitations of liability set forth in Sections 17 and 18, that those limitations reflect an allocation of risk between the parties, and that the same form an essential basis of the bargain between the parties.
20. Force Majeure. Spillover shall not be deemed in breach of this Agreement nor liable for a failure or delay in performing any of its obligations under this Agreement if such failure or delay results from events, circumstances or causes beyond its reasonable control, including without limitation network outages, transmission failures, system failures inherent in the technology industry (such as hacks, malware, hardware failures, or software failures), changes in law or regulations, fire, flood, disaster, civil riot, terrorism, pandemic, or war (each a “Force Majeure Event”). If the period of delay or non-performance by Spillover continues for ninety (90) days, Client may terminate this Agreement by giving fifteen (15) days written notice to Spillover.
21. Reservation of Rights. All of Client’s and Spillover’ rights and interests not expressly granted to the other herein are reserved to them, respectively.
22. Remedies. Except as expressly stated herein, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.
23. Miscellaneous. This Agreement (A) is governed by and shall be construed in accordance with the laws of the State of Texas, and the parties hereby submit to the exclusive jurisdiction and venue of the State Courts of Texas located in Travis County for all disputes arising under this Agreement; (B) contains the entire understanding and agreement of the parties with respect to its subject matter; (C) supersedes all prior and contemporaneous oral or written statements, proposals, quotes, representations or warranties by either party regarding this Agreement or its subject matter; (D) cannot be altered or amended except in a writing signed by the parties; (E) shall not be construed as establishing any type of partnership, joint venture, express or implied agency, employer-employee or special fiduciary relationship between the parties; (F) may not be transferred or assigned by Client in whole or in part without the prior written permission of Spillover, any transfers or assignments inconsistent with this sub-paragraph (F) being null and void; (G) may be transferred or assigned by Spillover in whole or in part, without the consent of Client, including to an affiliate or to an entity that acquires all or substantially all of the business or assets of Spillover to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise; (H) is binding upon the parties, their lawful successors and permitted assigns, and (I) may be executed in counterparts which, taken together, shall constitute one binding agreement. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover its costs and attorney’s fees. All waivers must be in a writing signed by the waiving party, and no such waiver may be construed as an ongoing or continuing waiver of the same or any future matter. Sections 1, 2, 5-7, 11, 13-23, and all provisions of the Marketing Services Agreement pertaining to the payment of consideration shall survive the termination (for any reason) or expiration of this Agreement. No person who is not a party to this Agreement will have any equitable or other rights by virtue of this Agreement. Each provision of this Agreement is severable and the invalidity of any part or paragraph shall not affect the enforceability of the remainder. Notices shall be sent to the respective signatories at the physical or e-mail addresses listed on the Marketing Services Agreement. Signatures on the Marketing Services Agreement provided by electronic means shall be binding as if originals.
These Terms were updated last on the 30th, October 2023.
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If you have a comment, question or request in relation to our Terms, or if you need to contact Spillover for any other reason, please contact the Spillover Data Protection Officer at support@spillover.com or contact us in writing at 3908, Avenue B, Suite 301, Austin TX 78751. Please include your own contact information and put “Spillover Data Proection Officer” in the title of the email or letter.
These Terms should be read in conjunction with our Customer (Client) Privacy Policy which can be found at www.spillover.com/privacy-policy.
1. The Agreement. Spillover will provide to Client the Marketing Services as agreed in the Marketing Services Agreement, subject to Client’s payment of the Consideration (defined herein) as set forth therein and all terms and conditions of the Marketing Services Agreement and these Spillover Standard Terms. Together, the Marketing Services Agreement and these Spillover Standard Terms constitute one binding agreement between the parties (the “Agreement”). The Agreement shall become legally binding on the parties on the date on which the Marketing Services Agreement is signed by Spillover (the “Effective Date”). The information in the Marketing Services Agreement regarding the amount of Consideration to be paid by Client, the payment process, and the Term, supersede any directly conflicting terms in these Spillover Standard Terms except for Sections 11(c),14(k) and 14(l) herein, which shall control. For all other purposes, these Spillover Standard Terms shall control.
2. General. All capitalized terms used herein and not otherwise defined shall have the meaning assigned to them in the Marketing Services Agreement. All other capitalized terms used herein shall have the meaning assigned to them below or elsewhere in the text of these Spillover Standard Terms:
- “Activation Date” means a date to be agreed by the parties that is customarily expected to be within the first four weeks after the Effective Date but if not agreed as a different date, then shall be deemed to occur no later than the start of the next calendar month after sixty days from the Effective Date (“Default Activation Date”), on which date Spillover is responsible to ensure that the Marketing Services are activated and ready for usage (subject to Section 10(a) or a Force Majeure Event), the Term for this Agreement is deemed to start and Client is liable for monthly recurring billing. For purposes of this definition, delays in activation caused by Client will not alter the agreed “Activation Date” or the Default Activation Date as those terms are used in Section 10 (Term and Termination) and Section 14 (Fees and Payments)
- “Client Materials” means the materials, trademarks, software code, designs, data, content, photographs, videos, images and information provided by or on behalf of Client for inclusion in the Marketing Services and/or for promotional use by Spillover as permitted hereunder, and includes Client’s and Restaurants’ names and logos. For clarity, the Client Materials include any of the foregoing even if they are not provided directly by Client to Spillover but are otherwise approved by Client (e-mail will suffice) for use by Spillover.
- Client “End User Data” is defined as information from Client’s website(s) and email databases provided by Client or that is collected on Client’s end customers, subscribers, and online/eCommerce customers. For the avoidance of doubt, End User Data does not include Resultant Data (defined below) or any other information reflecting the access or use of the Marketing Services by or on behalf of Client.
- “End User(s)” means actual and prospective customers and/or other guests of the Restaurant(s).
- “Intellectual Property” means all copyrights, patents, rights to inventions, trademarks, domain names, rights in trade dress, publicity rights, goodwill, rights in designs, database rights, rights to use and to protect the confidentiality of confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to obtain renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which exist now or in the future in any part of the world.
- “Licensed Software” means the tools and software products that are available as a part of the ENGAGE Software Suite including integrated third-party solutions.
- “Marketing Services” means the products and services listed by name in the Marketing Services Agreement, which Client has agreed to purchase and which Spillover has agreed to provide to Client. For clarity, Marketing Services may consist of professional services, development/support services, licensed software services, online ordering, website design, website content management, e-mail marketing, text messaging, Online Ordering (defined more fully below), eCommerce Store, reservation software, website hosting, internet marketing management, social engagement, reputation management, database management, customer data collection, website traffic analytics, online store and eCommerce integration, automated marketing, custom surveys, sales lead management, social media integration, outsourced social media management, Photography and Videography Services (defined more fully below), managed services, and concierge marketing, among others, or some combination thereof as elected by Client.
- “Online Ordering” means the services listed by name in the Marketing Services Agreement that allow restaurants to provide online ordering of food product by consumers for takeout and curbside.
- “Photography Services means the photography services provided by Spillover to Client as requested by Client that produce photographs of Clients location, menu items, people or product offering and is used by Spillover in the provision of the Marketing Services (“Photo Work Product”). Photography Services may be paid for by the Client as a once off professional fee (“Professional Photo Shoot”) or may be provided by Spillover at no additional charge to the Client or at a discounted rate (“Spillover Sponsored Photo Shoot”).
- “Restaurant(s)” means those restaurants that are owned, operated, and/or otherwise affiliated with Client for which the Marketing Services will be used.
- “Resultant Data” means data and information related to Client’s use of the Marketing Services that is used by Spillover in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Marketing Services.
- “Spillover Materials” means the Work Product and any other materials, trademarks, software code, designs, website designs, data, content, photographs, videos, Resultant Data, images and information provided by or on behalf of Spillover for inclusion in the Marketing Services, and all modifications or derivatives thereof.
- “Videography Services” ” means the video services provided by Spillover to Client as requested by Client that produce videos of Clients location, menu items, people or product offering and is used by Spillover in the provision of the Marketing Services (“Video Work Product”). Videography Services may be paid for by the Client as a once off professional fee (“Professional Video Shoot”) or may be provided by Spillover at no additional charge to the Client or at a discounted rate (“Spillover Sponsored Video Shoot”).
- “Work Product” means the inventions, photographs, videos, and other works of authorship, created, captured or developed in whole or in part by Spillover while providing or preparing to provide the Marketing Services for Client. Work Product may include works of authorship created by Spillover prior to the Effective Date.
(a) Website Development/Design Services. If agreed in the Marketing Services Agreement, Spillover provides website development and/or design services as provided in the Marketing Services Agreement. Spillover will liaise with Client to develop the look and feel of the website based on available templates as seen on www.spillover.com. as applicable, and will develop and deliver the website on a timetable to be agreed by the parties, recognizing that late delivery by Spillover will be excused to the extent caused by the Client or by factors outside of Spillover’s control. The website will be deemed accepted by Client once the Website is launched live and / or the Client begins conducting services or transactions via the website.
(b) Web Hosting Services. If agreed in the Marketing Services Agreement, Spillover will provide web hosting services twenty-four (24) hours per day, seven (7) days per week, subject to the Service Level. “Service Level” means that Spillover will use commercially reasonable efforts to make the relevant Marketing Services available at least 98% of the time such Marketing Services are needed by Client to conduct its business, measured over a calendar year, excluding unavailability due to Permitted Interruptions. “Permitted Interruptions” means any service downtime or degradation except as attributable to (A) scheduled downtime; (B) failure of third party products, software, services, or networks; (C) failures due to Client’s changes to the relevant software or equipment; (D) a Force Majeure Event; or (E) any period of suspension as authorized in this Agreement.
(c) Support and Maintenance Services. Spillover and Client will designate contact numbers and/or e-mail addresses so that Client can request the purchased support and maintenance services, if any, as provided in the Marketing Services Agreement. Spillover will respond to each request as appropriate given the nature of the problem, and will use commercially reasonable efforts to ensure that Spillover-provided Marketing Services meet the Service Level as defined above. If agreed in the Marketing Services Agreement, Spillover will provide other support services to Client on a case-by-case basis.
(d) Photography and Videography Services. Spillover agrees to provide to Client the Photography and Videography Services identified in the Marketing Services Agreement, if any, for the term of the Agreement, as subject to its Terms, as elected by Client. Any Photo Work Product or Videos Work Product created by Spillover in providing Photography Services and Videography Services are owned by Spillover. If Client elects to pay for a Professional Photo Shoot or Professional Video Shoot, Spillover hereby grants to Client a royalty free revocable license to use the photographs and images for marketing purposes during and after the Term of this Agreement. If Client elects to have a Spillover Sponsored Photo Shoot or Spillover Sponsored Video Shoot, Spillover hereby grants to Client a royalty free revocable license to use the photographs and images only for the duration of the Term of this Agreement.
(e) Licensed Software. Spillover agrees to provide to Client the licensed software identified as a Marketing Service in the Marketing Services Agreement, if any, for the Term of this Agreement and subject to its terms. The relevant licensed software will be delivered electronically, on tangible media, or by other means on or before the date referenced in the Marketing Services Agreement. Spillover hereby grants to Client a non-exclusive, non-sublicensable, and non-transferable license during the Term to use the licensed software solely for Client’s internal business purposes.
4. Change of Account. In the event that Client determines that a change in the scope of Marketing Services is desired, Client shall notify Spillover and the parties will negotiate in good faith to determine the mutually agreed changes to the scope of Marketing Services and a corresponding adjustment of Consideration, if any, in connection with such change, provided that neither party is under any obligation to agree to any changes to the Marketing Services and/or the Consideration. Any and all changes to the Marketing Services and/or the Consideration require a written change of account signed by both parties (the “Change of Account”). A fully signed Change of Account shall constitute an amendment to the Agreement.
5. Ownership of Materials.
(a) Client Owns Client Materials. As between Client and Spillover, Client shall continue to own all Intellectual Property rights and all other rights associated with the Client Materials. For the duration of the Term, Client hereby provides a royalty free license to Spillover to use and to reproduce, modify, distribute, display, and to make modifications to and derivative works of the Client Materials in the course of providing the Marketing Services to Client, to market and promote the Restaurant(s) and Spillover’ business, and (if applicable) to market, promote and sell Restaurant services. The foregoing license applies to Spillover’ use of Client Materials in all media and via Spillover platforms and/or its various affiliated, contracted, or licensed marketing and sales channels. Client represents and warrants that (A) it owns, or has the necessary permissions, to grant the license contained in this Section 5.a.; (B) the Client Materials do not violate any third-party Intellectual Property rights; and (C) the Client Materials contain no false or defamatory material or material that violates or advocates the violation of any law or regulation. If Client paid for a Professional Photo Shoot or Professional Video Shoot, and Client has Terminated its Agreement with Spillover per the Terms, with no outstanding monies owed to Spillover, then Client has the right to continue to use such Work Product as was created during these photo or video shoots under a usage royalty as outlined in 3(d) above.
(b) Spillover Owns Spillover Materials. As between Client and Spillover, Spillover shall continue to own all Intellectual Property rights and all other rights associated with the Spillover Materials. Spillover hereby provides a revocable royalty free license to Client to use and display the Spillover Materials as contained in the Marketing Services for the duration of the Term. Spillover owns the rights to all Photo Work Product and all Video Work Product generated by Spillover as part of the Marketing Services and may use such Work Product in any way it wishes to do so following Termination of this Agreement.
6. Trademarks. Each of Client and Spillover owns its own names and trademarks, and all goodwill associated therewith (the “Marks”), and will not use (or facilitate the use by others of) the names or trademarks of the other apart from the relevant licenses set forth in Section 5, without the prior written consent of the other party. Each party hereby acknowledges the other party’s right, title and interest in and to its Marks and such other party’s exclusive right to use, register and license the use of its Marks. Any and all goodwill arising from the use of a party’s Marks hereunder shall inure solely to the benefit of the owner, and neither during nor after the termination of this Agreement shall either party assert any claim to the other’s Mark(s). Neither party shall take any action that could be detrimental to the goodwill associated with the other’s Marks. Each party covenants and agrees that it will not, during or after the Term: (i) claim or assert title to any Mark of the other party, (ii) attempt to register any Mark of the other party anywhere in the world, (iii) claim any right to use any Mark of the other party, except to the extent expressly permitted by this Agreement, (iv) use any other trademark, brand name, trade name, symbol, design (including a translation) that the other party reasonably believes is confusingly similar to the Mark(s) of such other party, (v) contest or deny the validity or enforceability of the other party’s Mark(s) or of such other party’s interest therein, or (vi) oppose, object to, or seek to cancel any registration of the other party’s Mark(s), nor aid others in doing so. Client acknowledges and agrees that an automatically generated identifying footer stating “Powered by Spillover” or a similar message may appear on Marketing Services as appropriate.
7. Data Capture and Usage.
(a) Client End User Data. Client hereby grants to Spillover a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the End User Data and perform all acts with respect to the End User Data as may be necessary for Spillover to provide the Marketing Services to Client. Client agrees and acknowledges that (i) Spillover is not limited in its use of End User data, throughout the term of the Agreement and after its termination, (ii) Spillover has no obligation to retain any End User Data after termination of this Agreement, but may, at its election do so, and continue to use such End User at its sole discretion, for marketing data analytics and other purposes whereby any Resultant Data is owned by Spillover, and (iii) at Termination of this Agreement, Client has a thirty (30) day period during which they may request, in writing, a copy of this End User Data which shall be provided to them by Spillover in an industry standard format at Customer cost. Failure to make such a request may result in such End User Data being irretrievably deleted and/or amalgamated into a larger pool of Spillover data making retrieval impossible after thirty (30) days following termination. Client hereby unconditionally and irrevocably grants to Spillover an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
(b) Privacy and Permissions. Client is responsible for publishing its own privacy policy in conformity with applicable law to govern its collection of End User Data, and to allow for the usage and/or sharing of such data as referenced above. Client acknowledges that Client is responsible to secure consent to use the End User information or data for the particular marketing methods (e.g., text messaging, e-mailing, etc.) undertaken hereunder by Client or by Spillover on Client’s behalf, and that it is Client’s sole responsibility to ensure it has the requisite consent from individuals, as may be needed, prior to Client or Spillover engaging in any communication with End Users. Client agrees also to be bound by the Spillover.com Customer Privacy policy accessible at www.spillover.com.
(c) Security. Client is responsible to employ reasonable physical protections to guard Client’s equipment, facilities, systems, and networks used in connection with the Marketing Services, and to guard against unauthorized access to the same. Client will take reasonable measures to avoid the uploading or other infiltration of viruses, malware, spyware and other harmful code into such hardware, systems, and networks. Spillover reserves the right to deny access to Marketing Services to any user that Spillover reasonably believes poses a security risk.
8. Items for Which Spillover is Not Responsible. The parties agree that Spillover is not responsible or liable under this Agreement for:
(a) Delays in Spillover’ performance to the extent caused by Client, or by Permitted Interruptions.
(b) Client’s legal terms of service, privacy policies, or Client’s other legal compliance requirements.
(c) Client’s failure to control access to Client’s equipment, facilities, systems, and networks.
(d) The uploading or other infiltration of harmful code, viruses, malware, spyware and other harmful code into Client’s hardware, systems, and networks which is not the result of Spillover’ gross negligence or willful misconduct.
(e) Obtaining permission for Client to use any distribution list.
(f) Client’s back-up of its software, systems, and networks (including without limitation, back-ups of End User Data).
(g) The quality or speed of Client’s network connectivity.
(h) Changes to Client’s hardware, software, network or connectivity made by anyone other than Spillover after initiation of the Marketing Services.
(i) Any license fees payable to third parties for use of Client Materials, or any third-party permissions needed prior to using Client Materials. Specifically, Spillover is not responsible for verifying ownership of any pictures or materials supplied by Client to Spillover including pictures and product descriptions used on a previous Client website or marketing campaign. It is the Clients responsibility to confirm they have the right to use all pictures or product descriptions in their Client Materials and to notify Spillover immediately if they do not have such rights or permission and to request Spillover to remove them from Clients website or Client Materials.
(j) The nature or content of Client Materials, which includes (without limitation) social media content posted or provided by Client. Client assumes all risks associated with the usage of Client Materials and the reliance by third parties on its accuracy, completeness, or usefulness.
(k) Spillover’ removal of Client Material from any Marketing Service upon Spillover’ reasonable determination that such Client Material is in breach of any term of this Agreement.
(l) Any third-party warranties or other commercial terms applicable to third party hardware or software.
9. Client’s Key Responsibilities. Client covenants, represents, and warrants that:
(a) Client is duly organized under the laws of its home state.
(b) Client will use the Marketing Services only in compliance with this Agreement and all applicable laws.
(c) Client will not use the Marketing Services in a manner that violates the Intellectual Property rights, privacy rights, or other rights of any third party.
(d) Client will not remove the copyright, trademark, or other Intellectual Property designations from the Marketing Services.
(e) Client is not domiciled in, nor a resident of, and is not under control of, any country to which the United States has prohibited export.
(f) Neither Client nor any of its board members, executives, or shareholders are listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, or Specially Designated Narcotic Traffickers, nor on the United States Department of Commerce Table of Denial Orders.
(g) Client 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 constituting or contained within the Marketing Services.
(h) Client will not modify or create derivative works based on the Marketing Services, or copy (other than in connection with its authorized use of the Marketing Services), distribute, pledge, assign, or otherwise transfer or encumber rights to the Marketing Services.
(i) Client will not rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Marketing Services or information or results derived from the Marketing Services to any third party, including without limitation via any time-sharing, service bureau, software as a service, cloud, or other similar service.
(j) Client will not use the Marketing Services for the benefit of any third party, nor to conduct a comparative analysis with third party competitors of Spillover.
(k) Client is responsible for all Client Materials and hereby indemnifies Spillover from any fees, claims or costs associated with the use of Client Materials on any Spillover provided website or in the provision of the Marketing Services. Specifically, Client is responsible for all pictures provided to Spillover for the website or the provision of ongoing Marketing Services and in ensuring that any pictures supplied to Spillover are owned by, or have been licensed to the Client such that they have full permission to use these pictures and can pass such permission onto Spillover. Client acknowledges that Spillover cannot validate ownership of any pictures provided by Client including those that may have been on previous websites or used by Client in previous marketing campaigns and Client confirms that by allowing Spillover use any such pictures that Client is accepting responsibility for validating that all necessary permissions have been granted and that Client fully indemnifies Spillover for any claims against Client or Spillover that results from the usage of such pictures or Client Materials.
(l) Client will not use Client Materials, Spillover Materials or any other materials to imply that Client or its communications are authorized or endorsed by Spillover.
(m) Client will use any text messaging services that are provided by Spillover in the approved manner as defined in the Spillover Customer Privacy Policy (www.spillover.com/privacy-policy) and per the CITA recommendations, and will at all times ensure that only End Users who have opted-in for messaging will be marked as such on the Spillover database. It is the Clients’ responsibility to ensure that End Users are not added to the text messaging database unless they have opted-in for text messaging and that all campaigns to encourage such opt-in follow the CITA guidelines.
10. Term and Termination. This Agreement is legally binding on the parties as of the Effective Date. The term during which the Marketing Services will be provided shall begin on the 1st day of the following calendar month from the Activation Date (or on the Default Activation Date as defined above) and will continue for the time period designated as Term in the Marketing Services Agreement; or if none, then for a period of ninety (90) days (in either case, the “Initial Term”). This Agreement shall then renew automatically for the same period of time as designated as the Initial Term in the Marketing Services Agreement; or if none, for successive periods of ninety (90) days (each a “Renewal Term,” and together with the Initial Term, the “Term”), under the same terms and conditions.
Client may cancel the automatic renewal of this Agreement by giving written notice (e-mail to billing@spillover.com will suffice) to Spillover (“Termination Notice”) before the end of the Initial Term or then-current Renewal Term so long as such notice period, where Term is 30 days, is no less than 30 days notice. Termination Notice where the Term is 90 days, or where no Term has been stipulated in the Marketing Services Agreement shall be no less than 90 days notice prior to the end of the Term. Agreements that have a Term of more than 90 days shall require a Termination Notice period of 150 days notice prior to the end of the Term.
ALL TERMS AND CONSIDERATION DUE SHALL RUN TO THE LAST DAY OF THE MONTH IN WHICH THEY WOULD OTHERWISE EXPIRE. THIS INCLUDES THE CALCULATION OF THE TERMINATION PERIOD AND CONSIDERATION DUE THEREIN AFTER A TERMINATION NOTICE IS GIVEN.
Failure to provide Termination Notice within the designated notice period from the end of the current Term will lead to automatic renewal of the Marketing Services Agreement for an additional Renewal Term and services will continue to be provided by Spillover and must be paid for by Client until the end of that Renewal Term whereby the Termination Notice already given will then be deemed to have cancelled the Agreement at the end of the subsequent Renewal Term.
In addition to a Termination Notice by the Client:
(a) Either party may terminate the Agreement, effective on written notice to the other party, if the other party commits a material breach of this Agreement, and such breach is (A) incapable of being cured; or (B) although capable of being cured, remains uncured ninety (90) days after the non-breaching party provides the breaching party with written notice describing such breach..
(b) Spillover may terminate this Agreement on thirty (30) days’ notice to Client, for its convenience, in its sole discretion.
(c) Either party may terminate the Agreement, effective on written notice to the other party, if the other party (A) becomes insolvent or generally unable to pay its debts as they become due; (B) files or has filed against it a petition for bankruptcy or becomes subject, voluntarily or involuntarily, to any bankruptcy proceeding; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by court order to take charge of or sell any material portion of its property or business.
(d) Notwithstanding anything in Section 10.a. above, Spillover may terminate this Agreement, effective on written notice to Client, if (A) Client fails to pay any Consideration hereunder and such failure continues for ten (10) days after Client receives written notice from Spillover; or (B) Client is found in violation of any covenant, representation or warranty in Sections 5.a. or 9 of this Agreement.
11. Effect of Expiration or Termination. Upon the expiration or termination of this Agreement for any reason, (A) Client shall immediately cease use of all Marketing Services, (B) unless otherwise provided herein, all of Client’s rights and licenses to use the Marketing Services shall terminate, as shall each party’s respective permissions to use the materials provided by the other hereunder, and (C) Client shall pay Spillover any outstanding Consideration fees which are owed. If Client elects to have Spillover cease all Marketing Services immediately upon issuing a Termination Notice then Client accepts that Client is still liable for any Consideration that would have been due to be paid within the remainder of the Term and, if relevant based on the notice period given, also the Renewal Term, of this Agreement from the Termination Notice date. (D) Client shall return to Spillover all Spillover Materials then in its possession or control.
So long as Client has made full payment for the value of all Consideration due to Spillover under this Agreement, and provided that Client is not otherwise in breach, Spillover will provide to Client all Client Materials, End User Data (if requested), and Client profiles, passwords, websites, apps, accounts, and domain names then in its possession or control. (A reasonable service fee may be required for provision of End User Data.) In addition, if Client had previously paid Spillover for a Professional Photo Shoot or Professional Video Shoot, Spillover shall provide a copy of this Work Product for Clients’ ongoing use, under a royalty free revocable license. In the event Spillover is not paid all amounts due within thirty (30) days of such expiration or termination, then Spillover may delete, disable, alter, remove, retain, or otherwise dispose of all Client Materials, End User Data, and Client profiles, passwords, websites, apps, accounts, and domain names then in its possession or control.
So long as Client has Terminated per the Terms of this Agreement then Client may elect to purchase an ongoing license for the Photo Work Product generated from a Spillover Sponsored Photo Shoot for a one-time fee of $599. Likewise, Client may elect to purchase an ongoing license for Video Work Product generated from a Spillover Sponsored Video Shoot for a one-time fee of $1,000. It is at Spillovers sole discretion whether Spillover will agree to sell such Work Product and Spillover reserves the right to adjust the price for such Work Product at any time, with or without notice. Client may not use Work Product after Termination without acquiring a license from Spillover if Client availed of a Spillover Sponsored Photo Shoot or a Spillover Sponsored Video Shoot. Spillover owns, and continues to own after Agreement Termination, and may use in any way it chooses, all Work Product produced from any and all Spillover organized photo or video shoots whether they were sponsored by Spillover or fully paid for by the Client at the time.
12. Suspension of Marketing Services. Spillover reserves the right to suspend all or a portion of the Marketing Services: (A) for up to thirty (30) days in the event that Spillover reasonably believes the Client Materials are in violation of Client’s representations or warranties, or if Spillover reasonably believes the Client is using the Marketing Services or End User Data for any purpose not authorized under this Agreement, including but not limited to any unlawful purpose or in violation of any third party’s rights; (B) for up to sixty (60) days in the event Client’s payment of Consideration hereunder is more than thirty (30) days in arrears; or (C) during any cure period referenced in Section 10.a. or 10.b. above relating to a breach of the Agreement by Client. During any such period of suspension, Client shall remain responsible for the payment of all Consideration due hereunder. At the end of any such suspension period, Spillover must either restore the Marketing Services or pursue termination of the Agreement as set forth in Section 10. If Marketing Services are restored, a reconnection fee may be required.
13. Client’s Responsibility for Restaurant(s). The parties agree that Client shall be liable for any breach or default of this Agreement by the Restaurant(s) or for any other actions or omissions of any Restaurant with respect to this Agreement and/or the Marketing Services.
14. Fees and Payments. Subject to 14(l) below, the agreed pricing for the Marketing Services and the general payment terms are reflected in the Marketing Services Agreement including any initial fees and recurring fees (the “Consideration”), and Client agrees to pay such Consideration on such terms. In addition:
(a) Client agrees to deliver first payment on the Effective Date of the Agreement and, unless otherwise agreed in the Marketing Services Agreement, that such first payment will include any once off or implementation fees along with the first months recurring fees. Client further agrees that Spillover will charge for the first month (by crediting Client account balance for the pre-payment already made) on the Activation Date or if none, on the Default Activation Date. If this date occurs mid month Spillover shall include a proportional fee to the end of the following month, and charge Client for same, such that Client billing is now adjusted to begin on the 1st day of each month.
(b) Client agrees to make payments thereafter on or before the 15th business day of each month, unless otherwise agreed in the Marketing Services Agreement.
(c) Spillover charges and collects monthly in advance for use of the Services. Client authorizes Spillover to, and Spillover will automatically charge Client’s credit card or EFT (or issue an invoice if Spillover approves such an arrangement) for the monthly fee(s) along with any initial set-up fees as outlined in the Marketing Services Agreement during the Initial Term, and Spillover will thereafter automatically bill Client’s credit card or EFT (or issue an invoice to Client) monthly in advance for the period of the Term or Renewal Term. The renewal fee(s) subject to 14(l) will be equal to the then-current Service fee in effect at the time of such Renewal.
(d) If client uses Online Ordering, client agrees to a $1.00 per order fee paid by the consumer and payable to Spillover for any orders that are less than $50.00 and a $2.00 per order fee paid by the consumer for any orders where the total value equals or exceeds $50.00. This fee will be totaled for the previous month and included in the standard invoice as a line item of “Online Order Fee” or will be collected with the order, paid for by the end customer and remitted to Spillover within 24 hours, depending on payment gateway solution used.
(e) Spillover will begin billing for contracted services once the solution is live or 60 days after the Effective Date of the Agreement (whichever is sooner). Spillover will apply any due at signing payments along with the first month of billed service paid by Client at the Effective Date. In the event that the contracted services are partially live, Spillover may bill partial monthly fees for services prorated according to the percentage of contracted service that are live. Once any setup work for contracted services has been initiated by Spillover, any and all due at signing payments (including the first month's software and service fees) are non-refundable. If Client opts to delay their go-live past 90 days, then Spillover will apply the first month recurring fees to the cost of implementation and set-up and will at Client request hold the Client site and set-up in stasis mode for up to a further 30 days. After 120 days the Client shall be deemed by Spillover to be a false start, this will be communicated to the Client by the Spillover project manager and all work will be shut-down on the Clients project (“False Start”). If subsequent to a False Start being declared a Client wishes to proceed with their products and services as originally defined in the MSA, or a variant of that solution, then a further implementation fee will be due to re-start the project.
(f) Unless otherwise stated in the Marketing Services Agreement, Spillover’ 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”). Client is responsible for paying all Taxes associated with Client’s purchases hereunder or they may be added by Spillover to the fees if required by State or federal laws.
(g) Client agrees to provide Spillover with complete and accurate billing and contact information. This information includes Client's legal company name, street address, email address, and name and telephone number of an authorized billing contact and license administrator. Client agrees to update this information within thirty (30) days of any change to it. If the contact information Client has provided is false or fraudulent, Spillover reserves the right to terminate this Agreement and/or Client's access to the Services in addition to any other legal or equitable remedies it may have.
(h) For credit card payers, service fees shall accrue at the start of the initial Term, and Client's credit card will be charged at that time. If Client 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. Client'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.
(i) If Client believes that the bill is incorrect, Client must notify Spillover in writing within thirty (30) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
(j) In addition to any other rights granted to Spillover herein, delinquent invoices (accounts in arrears) are subject to interest of 2.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including attorney's fees.
(k) If Client or Spillover initiates Termination of this Agreement, Client will be obligated to pay the balance due on Client's account computed in accordance with this Section. Client further agrees that if Client has initiated Termination via a Termination Notice and Client no longer wishes Spillover to provide Marketing Services then Client further accepts and agrees that Client will be obligated to pay the fees for such Marketing Services that are still due to be provided under the Term or Renewal Term and would have been due in the future, such fees to be paid in one payment. Client agrees that Spillover may charge any such unpaid fees and future fees that would have been charged under the remaining Term, to Client's credit card or otherwise bill Client for such unpaid fees.
(l) Client agrees that Spillover may from time to time increase its recurring monthly fees for Clients Marketing Services in line with reasonable inflationary costs, so long as Client has been receiving such services for at least six months from the Activation Date, and so long as Spillover notifies Client via email of its intention to increase such fees and gives Client fourteen (14) days notice prior to applying any increase.
(m) If Client uses the Spillover supported delivery solution in conjunction with Online Ordering, then our technology partner Inhouse Delivery (IHD) will provide the technology to avail of a delivery tracking and driver network system. All Online orders that use IHD software will also include a $1.50 per order usage fee in addition to the actual delivery fee and the Online Ordering transaction fee. This Delivery Processing Fee will be collected at time of order and will either be charged to the end consumer or Client depending on the approach agreed with Client. All delivery issues are handled between Client and IHD through the IHD portal and Spillover is at no time responsible for missed deliveries or lost food orders. Client expressly accepts that the delivery part of Online Ordering is between Client and IHD and that Spillover has no responsibility for the performance of this service nor financial responsibility for loss of food product or customer refunds.
15. Indemnification. Client shall indemnify, defend and hold harmless Spillover, Spillover’ affiliates, and their respective members, managers, directors, officers, employees and agents (the “Spillover Parties”) from and against any and all third party demands, claims, actions or proceedings seeking a remedy for personal injury (including death) to any person, damage to the property (real, personal or intellectual) of any person or entity, or any financial or commercial harm or loss, and all fines, judgments, settlements, penalties, liabilities, losses, costs and expenses (including reasonable attorneys’ fees and expenses) suffered by any Spillover Party in direct connection therewith, to the extent caused by (A) Client’s breach of any covenant, representation, warranty, or other material term of this Agreement; (B) Client’s negligence or willful misconduct; (C) any actual or alleged harm to any person while on the premises of Client’s Restaurant(s); or (D) the violation by Client of any applicable law or regulation in its use of the Marketing Services, including without limitation all laws and regulations governing marketing contests and sweepstakes; (E) Client providing Spillover with images or Client Materials for display on Clients website or within their email marketing communications when it is subsequently shown that Client did not own the copyright for such images, or have the necessary permissions to use them in such a manner; (F) Client providing email contact details or text phone details for Spillover Marketing Services, where Client did not have express permission to market to the End Users or (G) Client’s website being the subject of an ADA compliance claim. For purposes of (A) through (G) above, the term “Client” shall be deemed to mean Client, the Restaurant(s), their affiliates, or any of their respective directors, officers, members, customers/End Users, employees, agents, contractors, sub-contractors or permitted assignees.
16. Disclaimer of Warranties. THE MARKETING SERVICES ARE PROVIDED ON AND “AS IS” BASIS. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 5.b. ABOVE, SPILLOVER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE MARKETING SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, (B) WARRANTY OF NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, OR (C) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SPILLOVER DOES NOT WARRANT AGAINST INTERFERENCE WITH CLIENT’S ENJOYMENT OF THE MARKETING SERVICES OR THAT THE MARKETING SERVICES WILL MEET CLIENT’S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY MARKETING SERVICE WILL CONTINUE TO BE MADE AVAILABLE FOR PURCHASE BEYOND THE TERM, THAT DEFECTS IN THE MARKETING SERVICES WILL BE CORRECTED, OR THAT THE MARKETING SERVICES WILL BE COMPATIBLE OR WILL WORK WITH ANY THIRD-PARTY HARDWARE, SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES. ACTIVATION OF THE MARKETING SERVICES MAY AFFECT THE USABILITY OF THIRD PARTY HARDWARE, SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES.
17. Limitations on Types of Damages. THE MARKETING SERVICES 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 DAMAGES RESULTING FROM SUCH PROBLEMS. IN NO EVENT SHALL SPILLOVER OR ANY OF ITS AFFILIATES, MEMBERS, OR REPRESENTATIVES BE LIABLE UNDER THIS AGREEMENT TO CLIENT OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, CORRUPTION OR LOSS OF DATA, SECURITY BREACH, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION, OR CLIENT’S INABILITY TO USE THE MARKETING SERVICES, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT CLIENT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
18. Maximum Liability. EXCEPT FOR INSTANCES IN WHICH APPLICABLE LAW DOES NOT ALLOW SUCH LIMITATIONS, IN NO EVENT SHALL SPILLOVER OR ANY OF ITS AFFILIATES’, MEMBERS’, OR REPRESENTATIVES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE LESSER OF (A) THE RETAIL VALUE OF IN-KIND CONSIDERATION PROVIDED BY CLIENT AND RECEIVED BY SPILLOVER DURING THE PAST THREE (3) MONTHS, (B) THE AMOUNT OF CASH CONSIDERATION PAID BY CLIENT AND RECEIVED BY SPILLOVER IN THE PAST THREE (3) MONTHS, OR (C) $1,000.
19. If Remedy Fails of Essential Purpose. THE LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN SECTIONS 17 AND 18 SHALL APPLY EVEN IF CLIENT’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. Client acknowledges and agrees that the parties entered into this Agreement in reliance upon the limitations of liability set forth in Sections 17 and 18, that those limitations reflect an allocation of risk between the parties, and that the same form an essential basis of the bargain between the parties.
20. Force Majeure. Spillover shall not be deemed in breach of this Agreement nor liable for a failure or delay in performing any of its obligations under this Agreement if such failure or delay results from events, circumstances or causes beyond its reasonable control, including without limitation network outages, transmission failures, system failures inherent in the technology industry (such as hacks, malware, hardware failures, or software failures), changes in law or regulations, fire, flood, disaster, civil riot, terrorism, pandemic, or war (each a “Force Majeure Event”). If the period of delay or non-performance by Spillover continues for ninety (90) days, Client may terminate this Agreement by giving fifteen (15) days written notice to Spillover.
21. Reservation of Rights. All of Client’s and Spillover’ rights and interests not expressly granted to the other herein are reserved to them, respectively.
22. Remedies. Except as expressly stated herein, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.
23. Miscellaneous. This Agreement (A) is governed by and shall be construed in accordance with the laws of the State of Texas, and the parties hereby submit to the exclusive jurisdiction and venue of the State Courts of Texas located in Travis County for all disputes arising under this Agreement; (B) contains the entire understanding and agreement of the parties with respect to its subject matter; (C) supersedes all prior and contemporaneous oral or written statements, proposals, quotes, representations or warranties by either party regarding this Agreement or its subject matter; (D) cannot be altered or amended except in a writing signed by the parties; (E) shall not be construed as establishing any type of partnership, joint venture, express or implied agency, employer-employee or special fiduciary relationship between the parties; (F) may not be transferred or assigned by Client in whole or in part without the prior written permission of Spillover, any transfers or assignments inconsistent with this sub-paragraph (F) being null and void; (G) may be transferred or assigned by Spillover in whole or in part, without the consent of Client, including to an affiliate or to an entity that acquires all or substantially all of the business or assets of Spillover to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise; (H) is binding upon the parties, their lawful successors and permitted assigns, and (I) may be executed in counterparts which, taken together, shall constitute one binding agreement. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover its costs and attorney’s fees. All waivers must be in a writing signed by the waiving party, and no such waiver may be construed as an ongoing or continuing waiver of the same or any future matter. Sections 1, 2, 5-7, 11, 13-23, and all provisions of the Marketing Services Agreement pertaining to the payment of consideration shall survive the termination (for any reason) or expiration of this Agreement. No person who is not a party to this Agreement will have any equitable or other rights by virtue of this Agreement. Each provision of this Agreement is severable and the invalidity of any part or paragraph shall not affect the enforceability of the remainder. Notices shall be sent to the respective signatories at the physical or e-mail addresses listed on the Marketing Services Agreement. Signatures on the Marketing Services Agreement provided by electronic means shall be binding as if originals.
These Terms were updated last on the 30th, October 2023.
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