ContentHubGPT by GSPANN

Terms and Conditions

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Last Updated: Oct 24, 2024

This TERMS OF SERVICE AGREEMENT (this “Agreement”) is a binding contract between you (“Customer,” “you,” or “your”) and GSPANN Technologies, Inc. (“GSPANN,” or “we,” or “us”) (each of GSPANN and Customer, a “Party” and collectively, the “Parties”). This Agreement governs your access to and use of the Services (as defined below).

THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “ACCEPT” BUTTON, ACCESS OR USE THE SERVICES (AS DEFINED HEREIN) AND/OR EXECUTE AN ORDER (THE “EFFECTIVE DATE”). BY ENTERING INTO THIS AGREEMENT, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. You must enter into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), not in your individual capacity. You are agreeing to this Agreement for that Entity and representing to GSPANN that you have the authority to bind such Entity to this Agreement, in which case the term “Customer” and “you” herein refers to such Entity. If you do not have such authority, or if you do not agree with this Agreement, you must not use or authorize any use of the Services.

1. DEFINITIONS

Capitalized terms will have the meanings set forth in this Section, or in the Section where they are first used.

1.1 “Customer Content” has the meaning set forth in Section 3.1.

1.2 “Documentation” means text or graphical materials, whether in print or electronic form describing the use and operation of the Services, as well as any template documents or forms provided in connection therewith.

1.3 “Order” means any order executed by both parties that references this Agreement, which may include any electronic order on GSPANN’s website, and sets forth: (a) Customer’s access rights to the GSPANN Platform; and (b) the Fees payable for such access rights. 

1.4 “GSPANN Platform” means the GSPANN’s AI-powered product content creation platform, ContentHubGPT, and related features, functionality or applications that are further described on the GSPANN’s website available at /contenthubgpt/, and reflected in your Order.

1.5 “Services” means the services provided by GSPANN to Customer under this Agreement, including, but not limited to, provision of access to the GSPANN Platform, and the Documentation.

2. PROVISION OF SERVICES

2.1 Services and Access

Subject to the terms and conditions of this Agreement, GSPANN will provide the Services set forth in the Order, including providing to Customer a non-exclusive, non-transferable (except as permitted under Section 10.6) license to access and use the Services and Documentation during the Term, in all instances solely for Customer’s internal business purposes. Customer shall not remove any copyright notice from any Documentation. Customer will prevent unauthorized access to, or use of, the GSPANN Platform and Documentation, and notify GSPANN promptly of any such unauthorized use known to Customer. 

2.2 Organization Accounts and Administrators

When you sign up for an account for your organization you may specify one or more administrators, if permitted by the application. The administrators will have the right to configure the Services based on your requirements and manage end users in your organization account. If your organization account is created and configured on your behalf by a third party, it is likely that such third party has assumed administrator role for your organization. Make sure that you enter into a suitable agreement with such third party specifying such party’s roles and restrictions as an administrator of your organization account. You are responsible for (i) ensuring confidentiality of your organization account password, (ii) appointing competent individuals as administrators for managing your organization account, and (iii) ensuring that all activities that occur in connection with your organization account comply with this Agreement. You understand that GSPANN is not responsible for account administration and internal management of the Services for you. You are responsible for taking necessary steps for ensuring that your organization does not lose control of the administrator accounts. You may specify a process to be followed for recovering control in the event of such loss of control of the administrator accounts by sending an email to chgpt-support@gspann.com, provided that the process is acceptable to GSPANN. In the absence of any specified administrator account recovery process, GSPANN may provide control of an administrator account to an individual providing proof satisfactory to GSPANN demonstrating authorization to act on behalf of the organization. You agree not to hold GSPANN liable for the consequences of any action taken by GSPANN in good faith in this regard.

2.3 Restrictions

Customer will not, and will not permit any other party to: (a) allow any third party to access or use the Services; (b) modify, adapt, alter or translate the GSPANN Platform or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the GSPANN Platform for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the GSPANN Platform, except as permitted by law; (e) interfere in any manner with the operation of the GSPANN Platform or the hardware and network used to operate the GSPANN Platform; (f) modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any part of the Services, including any Documentation, in any manner, except for modifications in filling out the Documentation for Customer’s authorized use; (g) access or use the GSPANN Platform to build a similar or competitive product or service; (h) attempt to access the GSPANN Platform through any unapproved interface; or (i) otherwise use the GSPANN Platform or Documentation in any manner inconsistent with applicable law. Customer bears responsibility to obtain any telecommunications or computer hardware or software required to access the GSPANN Platform. You agree to be solely responsible for the contents of your transmissions through the Services. You agree not to use the Services for illegal purposes or for the transmission of material that is unlawful, defamatory, harassing, libelous, invasive of another’s privacy, abusive, threatening, harmful, vulgar, pornographic, obscene, or is otherwise objectionable, offends religious sentiments, promotes racism, contains viruses or malicious code, or that which infringes or may infringe intellectual property or other rights of another. You agree not to use the Services for the transmission of “junk mail”, “spam”, “chain letters”, “phishing” or unsolicited mass distribution of email. We reserve the right to terminate your access to the Services if there are reasonable grounds to believe that you have used the Services for any illegal or unauthorized activity. 

2.4 Ownership

The Services, together with any improvements or modifications to each of the foregoing, are the exclusive property and Confidential Information of GSPANN. All rights not expressly granted to Customer in this Agreement are reserved by GSPANN. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the GSPANN Platform, Documentation, or any part thereof.

2.5 Inactive User Accounts

We reserve the right to terminate unpaid user accounts that are inactive for a continuous period of 120 days. In the event of such termination, all data associated with such user account will be deleted. We will provide you prior notice of such termination and option to back-up your data. The data deletion policy may be implemented with respect to any or all of the Services. Each Service will be considered an independent and separate service for the purpose of calculating the period of inactivity. In other words, activity in one of the Services is not sufficient to keep your user account in another Service active. In case of accounts with more than one user, if at least one of the users is active, the account will not be considered inactive.

3. CUSTOMER CONTENT; AI SERVICES

3.1 Customer Content

“Customer Content” means any data, information, graphics, videos and/or other materials provided or submitted by Customer or its authorized users for use in connection with the Services, including prompts, and other input to the Services (collectively, “Input”) and any new data or content generated through the Services in response to Customer’s Input (collectively, “Output”). Customer, and not GSPANN, is entirely responsible for all Input that Customer uploads, shares, posts, emails, transmits, queries, or otherwise makes available through or to the Services. Customer acknowledges that Outputs are based on Inputs, and that GSPANN has no control over any such Inputs. All Outputs are provided “as is” and with “all faults”, and GSPANN makes no representations or warranties of any kind or nature with respect to any Inputs or Outputs. Customer is solely responsible for its use of the Outputs created through the Services, and for determining whether the Output is appropriate for its intended use. Customer assumes all risks associated with its use of any Outputs, including any potential copyright infringement claims from third parties or any disclosure of Outputs that personally identifies Customer or any third party. The Customer Content is the exclusive property of Customer. Customer is solely responsible for the accuracy, quality and legality of Customer Content. Customer will obtain all consents and permissions needed for GSPANN to use the Customer Content to provide the Services. Customer shall employ reasonable and appropriate security measures to protect the Customer Content, to comply with applicable laws in connection with the use of the Services and Customer Content. Customer is solely responsible for its own strategic, operational and other business and legal decisions with regard to its use of the Services, and GSPANN shall bear no responsibility or liability for any actions or inactions by Customer or any third party acting on its behalf. Customer hereby grants to GSPANN a non-exclusive, worldwide, royalty-free, and fully-paid license during the Term to access, process, otherwise use the Customer Content solely in connection with the provision of the Services.

3.2 AI Services

The Services utilizes certain artificial intelligence and deep learning platforms, algorithms, tools and models (“AI Services”) to generate Output. Customer acknowledges and agrees that GSPANN may share Inputs with the AI Services for this purpose. Customer acknowledges that additional license requirements may apply to certain AI Services. Customer shall review and comply with such requirements for the AI Services used, and Customer shall assume all risks associated with Customer’s use of such AI Services. Customer acknowledges that their use of AI Services is subject to the terms and conditions of the respective providers, which the Customer agrees to periodically review and comply with. GSPANN will not be held liable for any damage or loss or any obligations arising from the relationship between the Customer and the AI Service providers. GSPANN will also have no liability for the unavailability of any AI Services, or any third party’s decision to discontinue, suspend or terminate any AI Services.

3.3 Content Rights

Customer represents and warrants that (a) it has all applicable rights to provide Customer Content to GSPANN for the provision of the Services and to grant to GSPANN the rights specified herein, and (b) Customer Content will not violate any third-party intellectual property or proprietary rights or the privacy rights of any individual. GSPANN does not claim ownership of any Customer Content, provided that Customer agrees that GSPANN is entitled to use Customer Content to provide and improve the Services, including improving and training any algorithmic models underpinning the Services, and to share the Customer Content with AI Services as necessary to provide the Services.

3.4 Content Restrictions

Customer’s use of the Services must comply at all times with any applicable AI Services terms. Without limiting the foregoing, Customer must not share Customer Content on or through the Services, or attempt to create or use Output through the Services, that: (a) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, pornographic, offensive, or profane; (b) infringes or misappropriates any third party’s intellectual property rights or other proprietary rights; (c) contains any viruses, worms or other malicious computer programming codes that may damage the Services; (d) contains any personal information related to any individual, (e) contains any sensitive personal information, whether related to yourself or to other individuals, including financial, medical, or health data, government IDs, passport numbers, social security numbers, other government identifiers or data regarding children; or (f) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without GSPANN’s prior written consent. Furthermore, Customer Content may not contain nudity, violence, sexually explicit, obscene, or offensive subject matter as determined by GSPANN in its sole discretion.

3.5 Feedback & Aggregate Data

Both during and after the Term, GSPANN may (a) use any suggestions, enhancement requests, recommendations or other feedback obtained in the course of providing the Services or otherwise provided by Customer, and (b) collect, use, and analyze data provided to GSPANN or otherwise arising during the use of the Services, in order to improve and enhance the GSPANN Platform, the Documentation and the Services and for other development, diagnostic and corrective purposes for those or other offerings of GSPANN, and solely to the extent such data is aggregated or otherwise de-identified in a manner that does not identify Customer, share and commercialize such data.

3.6 Personal Information and Privacy

Personal information you provide to GSPANN through the Services is governed by GSPANN’s Privacy Policy. Your election to use the Services indicates your acceptance of the terms of GSPANN’s Privacy Policy. You are responsible for maintaining confidentiality of your username, password and other sensitive information. You are responsible for all activities that occur in your user account and you agree to inform us immediately of any unauthorized use of your user account by email to chgpt-support@gspann.com or by calling us at (408) 263-3435 [9-5pm PST]. We are not responsible for any loss or damage to you or to any third party incurred as a result of any unauthorized access and/or use of your user account, or otherwise.

4. PAYMENTS

4.1 Fees and Payment Terms

In consideration for the access rights granted to Customer and the Services performed by GSPANN under this Agreement, Customer shall pay GSPANN all fees or charges (“Fees”) in accordance with the fees, charges and billing terms in effect at the time a Fee is due and payable, as located on the Pricing Page, or as otherwise stated in an Order. All amounts are due and payable as set forth in the applicable Order. Payment obligations are non-cancelable and all amounts paid are nonrefundable except as otherwise agreed by GSPANN. 

4.2 Late Payment

Payments made more than thirty (30) days after their due date will begin to incur an interest at a rate equal to one and one half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. GSPANN reserves the right (in addition to any other rights or remedies it may have) to suspend access to or use of the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full.

4.3 Payment Provider

GSPANN uses Zoho Corporation Pvt. Ltd. and Stripe, Inc. and its affiliates as its third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (“Payment Provider”). Customer agrees to be bound by Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/ssa) and hereby consents and authorizes GSPANN and Stripe to share any information and payment instructions provided with one or more Payment Provider(s) to the minimum extent required to complete the transactions. Online payment transactions may be subject to validation checks by the Payment Provider and Customer’s card issuer, and GSPANN is not responsible if Customer’s card issuer declines to authorize payment for any reason. The Payment Provider uses various fraud prevention protocols and industry standard verification systems to reduce fraud and Customer authorizes it to verify and authenticate payment information. GSPANN shall not be responsible for any online handling fees or processing fees charged by Customer’s card issuer. Payment Provider(s) may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.

4.4 Automatic Renewal

CUSTOMER’S ACCESS TO THE SERVICES, AND THE FEES ASSOCIATED THEREWITH, WILL AUTOMATICALLY RENEW IN ACCORDANCE WITH THE TERMS SET FORTH IN THE APPLICABLE ORDER. GSPANN RESERVES THE RIGHT TO REVISE THE FEES FOR ANY RENEWAL TERM UPON WRITTEN NOTICE TO CUSTOMER AT LEAST THIRTY (30) DAYS PRIOR TO THE COMMENCEMENT OF THE RENEWAL TERM. 

4.5 Taxes

The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on GSPANN’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the GSPANN Platform to Customer. Customer will make all payments of Fees to GSPANN free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to GSPANN will be Customer’s sole responsibility, and Customer will provide GSPANN with official receipts issued by the appropriate taxing authority, or such other evidence as the GSPANN may reasonably request, to establish that such taxes have been paid. 

4.6 Free Trials and Promotional Access

Any free trial or other promotional access to the Services must be used within the time specified at the time you registered for such free trial or promotion. At the end of the trial or promotional period, your access to the applicable Services, features, or functionality thereof will expire, and any further use of such Services, features, or functionality thereof is prohibited unless you pay the applicable Fees. If you are inadvertently charged for the Services and provide us with written notice of the error, GSPANN will have the charges reversed.

5. CONFIDENTIALITY

5.1 Confidential Information

“Confidential Information” means any nonpublic information of a party (the “Disclosing Party”) that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. 

5.2 Protection of Confidential Information

The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees who have a reasonable need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to GSPANN). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. 

5.3 Exceptions

The confidentiality obligations set forth in Section 5.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) was independently developed by employees and contractors of the Receiving Party without use or reference to the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

6. TERM AND TERMINATION

6.1 Term

This Agreement will begin on the Effective Date and continue in full force and effect for as long as any Order remains in effect, unless earlier terminated in accordance with this Agreement. The term of an Order will begin on the effective date of the Order and continue in full force and effect for the duration set forth on such Order, unless earlier terminated in accordance with this Agreement (the “Initial Term”). The Order will automatically renew unless either party provides written notice of non-renewal in accordance with the applicable Order (each, a “Renewal Term”, and together with Initial Term, “Term”). 

6.2 Termination for Breach

Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach (a) is incurable or, (b) if curable, remains uncured more than thirty (30) days after receipt of written notice of such breach. 

6.3 Termination by GSPANN

GSPANN may at any time terminate its agreement with Customer if: (a) GSPANN is required to do so by law (for example, where the provision of the Service to Customer is, or becomes, unlawful); (b) the provision of the Service to Customer by GSPANN is, in GSPANN’s opinion, no longer commercially viable; (c) GSPANN has elected to discontinue the Service (or any part thereof); or (d) any Fees are more than thirty (30) days overdue. In the event GSPANN does not terminate this Agreement for cause as described in Section 6.2, GSPANN will refund any unused balance of Customer.

6.4 Effect of Termination

Upon termination or expiration of this Agreement for any reason, Customer’s use of and rights to the Services and GSPANN Platform shall cease and any amounts owed to GSPANN under this Agreement will become immediately due and payable. Sections, 2.3, 2.4, 3.5, 4 (only with respect to any payment obligations that have accrued and remain unpaid as of the effective date of termination), 5, 6.4, 7.2, 8, 9 and 10 will survive expiration or termination of this Agreement.

7. WARRANTIES AND DISCLAIMERS

7.1 Mutual Warranties

Each Party represents and warrants the following: (a) that it is duly incorporated, validly existing and in good standing under the laws of its state of incorporation; (b) that it has the full power and authority to consent to and perform this Agreement; and (c) this Agreement has been duly and validly executed and constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.  

7.2 Disclaimer 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” AND GSPANN MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. GSPANN DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES GSPANN GUARANTEE ANY SPECIFIC RESULTS IN CONNECTION WITH USE OF THE SERVICE. GSPANN SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY OR ITS PRODUCTS OR SERVICES. GSPANN DOES NOT REPRESENT OR WARRANT THAT THE CUSTOMER IS THE LEGAL OWNER OF THE OUTPUT, OR THAT THE INPUT OR OUTPUT ARE PROTECTABLE BY ANY INTELLECTUAL PROPERTY RIGHTS. CUSTOMER, AND NOT GSPANN IS SOLELY RESPONSIBLE FOR ALL CUSTOMER CONTENT PROVIDED TO THE SERVICES, CUSTOMER’S USE OF THE SERVICES, INCLUDING ANY USE OF OUTPUT AND DECISIONS MADE OR ACTIONS TAKEN BASED ON THE SERVICES. CUSTOMER SHOULD EVALUATE THE ACCURACY OF ANY OUTPUT AND WHETHER IT IS SUITABLE OR APPROPRIATE FOR THE SPECIFIC USE CASE. FROM TIME TO TIME, GSPANN MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT GSPANN’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.

8. LIMITATION OF LIABILITY

8.1 Types of Damages

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY OR PROCUREMENT OF SUBSTITUTE SERVICES, ANY BUSINESS INTERRUPTION, IMPACT OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.  

8.2 Amount of Damages

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO GSPANN IN CONNECTION WITH THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL GSPANN HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THE ACTS OR OMISSIONS OF ANY THIRD PARTY. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. THE FOREGOING LIMITATION SHALL NOT APPLY TO (I) CUSTOMER’S BREACH OF ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, (II) CUSTOMER’S BREACH OF SECTION 2.3 AND 3.4, AND (III) CUSTOMER’S PAYMENT OBLIGATIONS AS SET FORTH IN AN ORDER. 

8.3 Basis of the Bargain

The parties agree that the limitations of liability set forth in this Section 8 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

9. INDEMNIFICATION

9.1 By GSPANN

GSPANN will defend at its expense any claim, action or suit brought against Customer (including reimbursement of Customer’s reasonable legal or expert fees or related litigation costs), and will pay any settlement GSPANN makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit by any third party that the GSPANN Platform infringes such third party’s patents, copyrights or trade secret rights under applicable laws within the United States of America. Notwithstanding the foregoing, GSPANN will have no obligation under this Section or otherwise with respect to any infringement claim based upon (a) any use of the GSPANN Platform not in accordance with this Agreement or (b) any use of the Service in combination with other products, services, software or data not supplied by GSPANN. This Section 9.1 states GSPANN’s entire liability to Customer, and Customer’s sole remedy, with respect to any claim of infringement by a third-party.

9.2 By Customer

Customer will defend at its expense any claim, action or suit brought against GSPANN (including reimbursement of GSPANN’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit arising out of or relating to (a) Customer’s breach of any provision of this Agreement; (b) any Customer Content; or (c) any improper or unauthorized use of the Service by Customer.

9.3 Procedure

The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

10. MISCELLANEOUS

10.1 Hosting Location

The location of the cloud facility from which you are served depends on the mapping of your region/country to the available cloud facilities at the time of your sign-up. We may migrate your account or require you to migrate your account to a different cloud facility in the event of any updates to the region/country to cloud facility mapping at any point of time. You must not mask your internet protocol (IP) address at the time of sign-up since your region/country is determined based on your IP address. If, at any time, your actual region/country is found to be different from the region/country in our records, GSPANN may take appropriate action such as migrate your account or require you to migrate your account to the cloud facility corresponding to your region/country, or close your account and deny the Services to you. If you are served from a cloud facility outside your region/country and a GSPANN entity has an office in your region/country, apart from storing the data in the cloud facility assigned to you, we may store a local copy of the data in your region/country.

10.2 Governing Law and Venue

This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The Parties hereby expressly consent to the exclusive personal jurisdiction and venue in the state and federal courts for San Francisco, California for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. 

10.3 Severability 

If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

10.4 Publicity 

GSPANN may identify Customer (together with its trademark or logo) as a customer on GSPANN’s website and other marketing materials; unless Customer otherwise objects to such identification by providing GSPANN with written notice.

10.5 Waiver

Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10.6 No Assignment

Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that (a) GSPANN shall have the right to assign, subcontract, delegate, or otherwise transfer this Agreement to an affiliate, including GSPANN Software, LLC, and (b) either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns. 

10.7 Compliance with Law

Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services.

10.8 Force Majeure

Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, telecommunication or internet delays or failures, fire, earthquake, flood, pandemic or epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

10.9 Independent Contractors

Customer’s relationship to GSPANN is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of GSPANN.

10.10 Notices

All notices required under this Agreement (other than routine operational communications) must be in writing and delivered: (a) in person; (b) by nationally recognized overnight delivery service; (c) by certified U.S. mail (requiring signature) to the other party’s corporate headquarters address as set forth in the Order; or (d) by email to the other party’s email address as set forth in the Order. Notices shall be effective upon: (i) actual delivery to the other party, if delivered in person, or by national overnight courier or email; or (ii) five (5) business days after being mailed via U.S. postal service, postage prepaid.

10.11 Entire Agreement

This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the GSPANN.