Standard Terms and Conditions

This Agreement is entered into by and between Spektrix, Inc., 213 W 35th St, New York, NY 10001 ("Spektrix”), and the Party identified as the client in the Application Services Agreement to which this document is attached (the “Client”). 

In consideration of the mutual obligations set out in this Agreement, including the provision of the Services (defined below) by Spektrix, the Parties agree to the following terms and conditions:

1.  Definitions

1.1  In this Agreement the following words shall have the following meanings unless otherwise expressly stated:

“Agreement” means these terms and conditions including the Schedules and any documents referred to therein together with the provisions contained within these terms and conditions and the Appendices;

“Application Program Interface” means the set of commands, functions, and protocols which allow third party systems to access the features and data of the Client’s Spektrix system;

“Charges” means the charges payable by the Client to or at the direction of Spektrix set forth in the Schedule;

"Client" includes any person who purchases, installs, activates, copies or otherwise uses the Services, including any person acting on behalf of and with the authority of the Client, in accordance with this Agreement;

“Commencement Date” means the date specified in the “Commencement Date” section of the Schedule or if no date is specified, the date on which Spektrix begins providing access to the Services;

“Confidential Information” means any and all information which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential to a party and includes secret, proprietary or confidential information including financial, marketing, operational and technical information, know-how, and trade secrets all whether in written, electronic or any other form or medium, and whether disclosed before, on or after the date of this Agreement;

"Data Migration" means a process that involves Spektrix importing data from the Client’s database into the database used by Spektrix’s Application Website;

“Documentation” means the manuals and other documentation made available to the Client by Spektrix in connection with the Services where applicable, as updated, replaced or supplemented from time to time by Spektrix; 

“Effective Date” means the date specified in the “Effective Date” section of the Schedule;

“Initial Term” means the period set forth in the “Initial Term” section of the Schedule;

“Intellectual Property Rights” means any current and future intellectual, industrial, statutory and other proprietary rights (including moral rights) throughout the world (whether registered or unregistered or capable of registration) including patent, copyright, protected or protectable software or code right, moral right, design right, trade dress, trade or business or company name, registered industrial design,  service mark, domain name, metatag, know-how, model, unregistered design, trademarks (and any application for any such right and any rights to registration of such rights) and any other intellectual property right and the goodwill therein whether created before or after the commencement of this Agreement;

"Party" means and includes Spektrix and the Client;

“Reports” means any database or report which Spektrix is required to generate, process, store or transmit made up of any data, text, drawings, diagrams, images or sounds supplied to Spektrix either by or on behalf of the Client or otherwise, and which are embodied in any electronic, magnetic, optical or tangible media;

“Schedule” means the document headed “Application Services Agreement” to which this document is attached, as updated from time to time with the agreement of both Parties;

“Services” means the subscription services (including access to the Software by whatever means including by means of a non-chargeable demonstration) provided by Spektrix to the Client under this Agreement from Spektrix’s Application Website or any other website notified to the Client by Spektrix from time to time, as more particularly described in the Schedule;

“Software” means all software applications provided by Spektrix as part of the Services (including all client-side scripts and server side code (whether compiled or uncompiled) which form a part of Spektrix’s Application Website) as updated from time to time by Spektrix and where specified in the Schedule;

“Spektrix’s Application Website” means websites within the spektrix.com domain (or any other domains of which the Client has been notified by Spektrix from time to time) which provide interfaces to the server-side Software and to which access is available after logging in using the User Login Details;

“Spektrix Materials” means any information, documentation, materials, software, equipment, data, reports and all other materials owned or licensed by Spektrix, including Spektrix’s Application Website, the Software, the Documentation and the Reports;

“Support Services” means the services described in Appendix A;

“Term” means the Initial Term and any subsequent additional periods as and if continuing in accordance with Section 2.1; 

“Users” means the number and types of users set forth in the “Users” section of the Schedule who are permitted to access and use the Software; and

“User Login Details” means the username, password and other information which a User will be required to input in order to be granted access to Spektrix’s Application Website.

 

2.  Duration and Scope of Agreement

2.1  This Agreement shall come into force on the Effective Date. The Services shall commence on the Commencement Date and, unless terminated earlier in accordance with this Agreement, shall continue for the Initial Term. Thereafter, the Agreement shall automatically renew for successive 12-month periods (each a “Renewal Period”), unless either Party provides at least thirty (30) days’ prior written notice of non-renewal before the end of the Initial Term or any Renewal Period, in which case the Agreement shall terminate at the end of the then-current Term. 

 

3.  The Services

3.1  Spektrix grants to the Client a non-exclusive, non-transferable, non-sublicensable right to permit the Users to access and use the Services and the Documentation during the Term, solely for the Client’s internal business operations to the extent necessary for such operations. The Client shall ensure that all Users are bound by confidentiality obligations and use restrictions no less protective than those set out in this Agreement, and the Client shall remain liable for any breach of such obligations by any User. 

3.2  The Client shall be solely responsible for providing, configuring, and maintaining its systems, and all hardware, software and network connections necessary to enable it to connect to the Internet to access Spektrix’s Application Website. The Client shall be solely responsible for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client or Client’s network connections or telecommunications links or caused by the Internet. 

3.3  Spektrix agrees to provide the Support Services from the Commencement Date for the duration of theTerm. 

3.4  Spektrix may, from time to time, at its sole discretion, choose to update the Services and/or Spektrix’s Application Website. In the event that it chooses to do so, Spektrix will use reasonable efforts to provide the Client with any amendments to the Documentation necessary to enable Client’s use of any improved facilities and functions of the updated Services and/or Spektrix’s Application Website.

3.5 Spektrix may use third-party service providers in connection with the provision of the Services. Spektrix remains responsible for such third parties where they are used to perform its obligations under this Agreement, except where responsibility is allocated to the Client under a direct agreement or where third-party services are integrated to support specific functionality and Spektrix disclaims liability for their availability, performance, or conduct, except as required under applicable data protection laws. Details of such third-party service providers are set out in the ASA.

4.  Client Obligations

4.1 The Client acknowledges that on sales of any items using the Services, the Client, and not Spektrix, is the selling contracting party, and is responsible for supplying the relevant items, providing refunds to its customers and calculating and paying any applicable sales tax and, in doing so, complying with all of its contractual obligations and applicable laws and regulations;

4.2  The Client undertakes (except to the extent required by: (1) law, and only then for the specific limited purposes stated in such applicable law; or (2) this Agreement):

4.2.1  not to disseminate, share, or make the Services or the Documentation available, in whole or in part and in any form (whether for sale or otherwise), to any person other than Users without Spektrix’s prior written consent. The Client shall supervise and control access to User login credentials in accordance with this Agreement and applicable law, and shall ensure that all Users comply with the terms of this Agreement.

4.2.2  to use the Services and/or Documentation solely for its internal business purposes and not use them to provide any form of bureau services, managed services, outsourced services, sub-licensing, time sharing, rental, facility management, or process data on behalf of a third party, unlawful or criminal services or products or in support of the provision of any unlawful or criminal services or products or provide any other form of services or access to the Services and/or the Documentation to any third party unless otherwise agreed in writing by Spektrix.  This does not prevent the Client from using the Services and/or the Documentation to provide ticketing to third parties who are renting the Client’s venue and/or the Client’s third party agents to purchase seats through an Application Program Interface to the Services; and  

4.2.3  not to use or copy any Spektrix Materials (except as expressly permitted by Spektrix), nor to modify, reproduce, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute any part of the Spektrix Materials in any form or media, or by any means. The Client shall not reverse compile, disassemble, reverse engineer, or otherwise reduce the Software to human-readable or perceivable form, except as expressly permitted by law.

4.3  The Client shall:

4.3.1  use the Software and Services as its sole and exclusive application for the processing of its ticket sales for the Term;

4.3.2  notify Spektrix within thirty (30) days of the Commencement Date if the User Login Details and Documentation which has been provided to the Client are not in accordance with this Agreement. The Client will be deemed to have accepted the User Login Details and Documentation in the absence of Spektrix receipt of such notification within the thirty (30) day period;

4.3.3  notify Spektrix immediately if the use of the System changes beyond that set out in the ASA; 

4.3.4  save and except with respect to the limited rights granted by Spektrix to use and receive the Services and Support Services under this Agreement, obtain all necessary consents, licenses and permissions (including from performers and venues) in order for the Client to use and receive the Services and Support Services; and

4.3.5  not take any action to remove or conceal any content, text, graphic, logo or link appearing on customer facing webpages which identifies Spektrix as the owner and/or publisher of the Software and/or Services.

4.3.6  indemnify, defend and hold harmless Spektrix, each member of the Spektrix group of companies and its affiliates and each of their officers, directors, managers, members, shareholders, partners, agents and representatives, and each of their successors and assigns from and against all claims, damages, losses, liabilities, obligations, costs and expenses (including reasonable legal fees) resulting or arising directly or indirectly from (a) any breach of any Client obligation, representation or warranty contained in this Agreement or implied by law, (b) any claim that Spektrix’s access to, or collection, storage, or use of any Client data or Client Materials or any part thereof infringes the Intellectual Property Rights or other rights of a third party,  (c) any act or omission of the Client or a contractor, vendor, agent or representative of Client; d) any false, misleading or deceptive representation or statement made by the Client in respect of the Services to any person.

4.4  The Client represents and warrants to Spektrix that:

4.4.1  the execution and delivery of the Agreement and the performance of its obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on it and enforceable in accordance with its terms.

4.4.2  the tickets sold using the Services are valid and provide access to the event, service or product promised on or by the ticket and all other items sold using the Services comply with their description, are of satisfactory quality, are fit for the purpose for which they were sold and in all other respects (including the solicitation, advertising or marketing therefor) comply with all applicable laws and regulations.

4.4.3  unless otherwise agreed in writing, the Client acknowledges and agrees that it shall have no right or claim to any commission, royalty or other payment or benefit on or with regard to the enrolment of new users of the Services, or the licensing of the Software or any of Spektrix’s other products whether arising from inquiries from any third parties  about the Services or any of Spektrix’s software products or otherwise.

5.  Spektrix's Warranties

5.1  Spektrix represents and warrants to the Client that:

5.1.1  the execution and delivery of the Agreement and the performance of its obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on it and enforceable in accordance with its terms.

5.1.2  subject to clauses 5.2, 5.3 and 5.4, it will use commercially reasonable efforts to ensure that, during the Term, the Services, when used in accordance with this Agreement, will function materially in accordance with the Documentation; provided, however, that this warranty shall not apply to the extent that any non-conformity is caused by use of the Services in any manner that is contrary to the Documentation or Spektrix’s instructions, any modification or alteration of the Services by any party other than Spektrix or Spektrix’s duly authorized contractors or agents, or any other act or omission of any other party.  

5.1.3  Spektrix provides no assurance whatsoever that (i) the Services, the use thereof, or the results obtained by using the Services will be uninterrupted or error free, (ii) defects or errors in the Services will be corrected, (iii) the Services are capable of operation with any equipment or software or that the Services will meet the Client’s requirements, or (iv) the Services will yield any benefit to Client. Notwithstanding the foregoing, Spektrix will make reasonable efforts to address issues in accordance with its support policies. 

5.2  Except as expressly provided in this Agreement, all other warranties, conditions or representations (whether express or implied by statute, common law, custom, trade usage or otherwise), including but not limited to implied warranties of merchantability or fitness for a particular purpose, are excluded to the fullest extent permitted by law.

6.  Charges

6.1  The Client shall pay the Charges to Spektrix in accordance with this Agreement together with applicable sales tax at the applicable rate and payment shall be made  without deduction, withholding or set off or any claim or counterclaim.

If at any time Spektrix is required to charge, or the Client is otherwise required to pay, sales tax in any jurisdiction, the Client shall pay the sales tax and Spektrix shall also be entitled to withhold for and collect the same, unless the Client is otherwise exempt from payment under applicable law, and, in that event, the Client shall provide Spektrix with appropriate evidence of any such exemption.

6.2  If the Client does not pay the amount of any invoice from Spektrix  when it is due, then without prejudice to any other right or remedy of Spektrix:

(a)  any invoice or part thereof which remains unpaid when due shall be subject to an interest charge of 2% per month, or such lower percentage permitted by law if 2% per month is not permitted by applicable law; and

(b)  Spektrix is entitled to suspend the provision of the Services until the date of payment in full of the unpaid amount.

6.3  Spektrix may amend the Charges prior to the start of each Renewal Period by providing the Client with at least thirty (30) days’ written notice. If the Client does not accept the revised Charges, it may elect not to renew the Agreement by providing written notice prior to the Renewal Date. The Client may also request a review of Charges prior to the Renewal Date, and Spektrix will consider such request in good faith, though Charges shall remain as notified unless otherwise agreed in writing.

6.4  Any deliberate manipulation of sales data by the Client, including intentional underreporting of sales or failure to report sales at the correct price, shall constitute a material breach of this Agreement. In such case, Spektrix shall be entitled to suspend access to the Services and/or terminate this Agreement with immediate effect. If Spektrix becomes aware of any material inaccuracies in reported sales data that appear unintentional, Spektrix may require the Client to promptly investigate and correct the discrepancies. If the Client fails to do so within 10 days of notice, such failure shall be deemed a material breach entitling Spektrix to suspend or terminate the Services.

6.5  Spektrix may monitor and audit the Client’s use of the Software and Services on an automated basis, including the number and type of users, usage patterns, and configuration settings, solely for the purposes of maintaining system stability, ensuring security, and detecting or preventing fraud or misuse. Such monitoring will be conducted in a manner that is proportionate, non-intrusive, and consistent with Spektrix’s obligations under this Agreement, including its obligations relating to data privacy and confidentiality. The Client shall, upon request, provide reasonable assistance to Spektrix in connection with any follow-up actions arising from such audit.

 

7.  Intellectual Property Rights

7.1  All Intellectual Property Rights in the Spektrix Materials or otherwise, including those under license from Spektrix Limited or any third party, shall remain vested in Spektrix and/or its licensors.

7.2  Except as expressly set forth in this Agreement, the Client shall not acquire any right, title or interest in or to any of the Spektrix Materials or the Intellectual Property Rights of Spektrix or its licensors.

7.3  If the Client acquires, by operation of law, any right regarding any Intellectual Property Rights that is inconsistent with the allocation of title set forth in Sections 7.1 and 7.2, it shall immediately, unconditionally and without compensation assign, in a writing in form and substance satisfactory to Spektrix, any and all such Intellectual Property Rights to Spektrix or its designee and deliver, execute and file any other agreement or document all upon request (whenever made).

7.4  Spektrix agrees to indemnify the Client against all damages, losses, costs and expenses (including reasonable legal fees) resulting directly from a finding by a court in the United States that the use of the Services or the Spektrix Materials by the Client in accordance with this Agreement infringes a valid United States copyright or misappropriates a trade secret of a third party in the United States existing at the time that this Agreement is entered into provided that the Client:

7.4.1  gives written notice to Spektrix of any such claim of infringement or misappropriation as soon as it becomes aware of the same; and

7.4.2 gives Spektrix sole control of the defense of any such claim, provides Spektrix with all reasonable assistance (at the expense of Spektrix) in connection with the defense and settlement of any such claim, and does not admit liability, or attempt to settle or compromise such claim without the prior written agreement of  Spektrix; and

7.4.3  uses its best efforts to mitigate any damages, losses, costs and expenses resulting from such claim of infringement.

7.5  In the event of such a claim referenced in Section 7.4, Spektrix shall be entitled to:

7.5.1  procure the right for the Client to continue using such Services or Spektrix Materials or infringing part thereof; or

7.5.2  make such modifications to such Services or Spektrix Materials or relevant parts thereof so that such Services or Spektrix Materials become non-infringing without resulting in a material reduction in the quality or performance of such Services or Spektrix Materials; or

7.5.3  replace such Services or Spektrix Materials or relevant parts thereof with non-infringing substitutes provided that the use of such substitutes do not result in a material reduction in the quality or performance of such Services or Spektrix Materials.

7.6  The Parties agree that Section 7 states the entire liability of Spektrix and the sole and exclusive remedy of the Client with respect to any claim that the Services or the Spektrix Materials infringe or misappropriate the Intellectual Property Rights of a third party.

8.  Confidentiality

8.1  Subject to Section 8.2, all Confidential Information of each Party disclosed or obtained as a result of this Agreement shall be kept confidential by the Parties and neither Party shall use or disclose such Confidential Information.  Where such Confidential Information is disclosed by a Party to its employees, consultants, agents or sub-contractors, it shall be subject to confidentiality obligations equivalent to those set forth in this Agreement.  Each Party shall make reasonable efforts to ensure that any such employee, consultant, sub-contractor or agent complies with such obligations.

8.2  The obligations of confidentiality in Section 8.1 shall not extend to any disclosure of Confidential Information which the disclosing Party can show:

8.2.1  is necessary for the proper performance of its obligations under this Agreement;

8.2.3  has been carried out with the prior consent of the other Party;

8.2.3  was or has become part of the public domain other than as a result of a breach of the obligations of confidentiality under this Agreement; or

8.2.4  was in its records prior to the Commencement Date (other than from the disclosing Party); or

8.2.5  was independently disclosed to it by a third party entitled to disclose the same; or

8.2.6  is required to be disclosed under applicable law, or by order of a court or governmental body or other authority of competent jurisdiction.

9. Client Data

9.1  The Client hereby provides its consent to Spektrix to collect anonymized and aggregated data regarding the Client’s use of the Services. Spektrix may use such data internally or share it with its affiliates for purposes including service improvement, usage analysis, client benchmarking, and promoting the Services in a non-attributable form.. Spektrix will not collect or process personal data in breach of applicable privacy laws and will ensure that any data collected under this clause does not identify individuals.

 

10. Limitation of Liability

10.1  Subject to Sections 10.2 and 10.3, neither party shall be liable in any circumstances to the other party for any indirect, incidental, consequential, exemplary, special, or punitive damages, including any loss of profit, revenue, business opportunity, anticipated savings, good will or data, arising from or relating to this Agreement (or any damages arising from a claim by a third party for any of the above losses) whether in contract, in tort, negligence or otherwise even if such loss was reasonably foreseeable or such Party was advised of the possibility of the same.

10.2  The aggregate liability of Spektrix for all claims arising under or in connection with this Agreement, including for any indemnification hereunder, whether arising under contract, statute, tort (including negligence) or otherwise, shall be limited solely to the charges actually paid to Spektrix by the Client under this Agreement during the 12 months immediately preceding the date on which notice of the claim was received by Spektrix; and

10.3  In furtherance of the above limitation, the liability of Spektrix for all claims arising from a single event or series of events under or in connection with this Agreement, including for any indemnification hereunder, whether arising under contract, statute, tort (including negligence) or otherwise, shall be further limited solely to the charges actually paid to Spektrix by the Client under this Agreement which relate specifically to the transaction(s) in question, i.e. relating to the particular event on or at a particular date and time. Client shall give Spektrix prompt notice at the time any claim under this Agreement arises.

10.4  Nothing in this Section 10 or otherwise shall exclude or limit the Client’s obligation to pay the Charges and damages and costs under any indemnification in favor of Spektrix.

10.5  The Charges have been calculated and agreed to on the basis that each Party will exclude and limit its liability as set forth in this Agreement, and the Parties therefore agree that the limitations and exclusions of liability in this Agreement are fair and reasonable.

10.6  In addition to and not in limitation of anything else contained herein or otherwise, Spektrix will not be liable for:

10.6.1  any failure to comply with the provisions of this Agreement if such default is attributable to any extent to any act or omission of the Client, or the Client’s agents, employees or contractors;

10.6.2  the failure in the performance of any Client obligation under this Agreement;

10.6.3  any consequences arising from Spektrix complying with the law or the Client’s instructions or requirements;

10.6.4  any consequences arising from the Client or any other party failing to secure any necessary consents, licenses or permissions;

10.6.5  any consequences arising from the Client, the Users or any other party failing correctly to enter information into the Services; or

10.6.6  any act or omission of the Client, the Users or any other party in connection with the promotion and publicizing of events or otherwise.

11. Termination

11.1  Either Party may terminate this Agreement with immediate effect by written notice to the other Party if the other Party materially breaches any of its obligations under this Agreement and:

(a)  the breach is not capable of remedy; or

(b)  the breach is capable of remedy but remains uncured for fourteen (14) days after written notice specifying the breach and requiring its cure.

However, if a Party commits three (3) material breaches within any rolling twelve (12) month period, the non-breaching Party may terminate this Agreement immediately, without further notice or cure period.

Notwithstanding the above, Spektrix may terminate this Agreement immediately upon written notice to the Client, without any opportunity to cure, if the Client is in material breach of: Section 4 (Use of Services), Section 6 (Charges and Payment), Section 8 (Confidentiality), or Section 14 (Assignment).

11.2  Either Party may terminate this Agreement immediately upon notice in writing to the other Party (the “Defaulting Party”) if the Defaulting Party files a petition for bankruptcy or is adjudicated as bankrupt; or a petition in bankruptcy is filed against such party; such party makes an assignment for the benefit of its creditors; a receiver is appointed for such party or its business; a resolution has been passed or a petition has been filed by such party for its liquidation, dissolution or winding-up; if such party is insolvent or unable to pay its debts when due or admits the same; or such party discontinues its business or ceases to operate as a going concern.  

11.3  Either Party may terminate this Agreement at any time by giving thirty (30) days prior written notice of termination.

11.4  If the Client terminates the Agreement under Section 11.3 before the end of the then-current Term, the Client shall pay an early termination fee (the “Termination Fee”) equal to:

(a)  the Charges that would have been payable for the remaining portion of the Term, calculated based on the average monthly Charges paid during the twelve (12) months immediately preceding the notice of termination; or

(b)  if fewer than twelve (12) months have elapsed, the reasonably estimated Charges for the remainder of the Term as outlined in the Schedule.

 

12. Consequences of Termination

12.1  The termination of this Agreement shall be without prejudice to the rights and remedies of either Party which have accrued up to the date of termination.

12.2  Other than Sections 3, 5, and 14, upon termination of this Agreement, the provisions of this Agreement shall survive, as applicable, by their terms.

12.3  Client shall make no further use of any of Spektrix property, the Spektrix Materials or Confidential Information. 

12.4  12.4    Spektrix may destroy or otherwise dispose of any of the Client’s data in its possession unless Spektrix receives, no later than ten (10) days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client’s data. Spektrix shall use reasonable commercial efforts to deliver the back-up to the Client in an interchange format and within thirty (30) days of its receipt of such a written request, provided that the Client has, at that time, paid all Charges to such date and all other fees and charges outstanding at and resulting from termination (whether or not due at the date of termination).  The data will be provided in Spektrix’s standard interchange format used for client offboarding. Spektrix may charge the Client for the time devoted to any data extraction if Spektrix, in its sole discretion, considers the data extraction to be outside of its standard data export process.

12.5  Upon termination of this Agreement, all licenses granted by Spektrix to the Client under this Agreement will immediately terminate.

12.6  Upon termination of this Agreement, each party shall make no further use of the other party’s property, including any materials, services, Intellectual Property Rights, or Confidential Information belonging to the other party. Without limitation, the Client shall make no further use of any Spektrix property including the Spektrix Materials, the Services, Spektrix’s Intellectual Property Rights, or Spektrix’s Confidential Information; and Spektrix shall make no further use of any Client Materials, Client Data, or Client Confidential Information other than as indicated in this Section 12.

13. Force Majeure

13.1  If either Party (the “Affected Party”) is prevented, hindered, or delayed in performing any of its obligations under this Agreement by reason of an event beyond its reasonable control, including but not limited to acts of God, pandemic, epidemic, government shutdown, civil unrest, or venue closures (“Force Majeure”), such failure or delay shall not constitute a breach of this Agreement.

13.2  The obligations of the Affected Party shall be suspended for the duration of the Force Majeure event, provided that the Affected Party promptly notifies the other Party of the nature and expected duration of the event and uses reasonable efforts to resume performance as soon as possible.

13.3  For clarity, Client’s payment obligations shall not be automatically excused by a Force Majeure event. However, if the Force Majeure event materially prevents the Client from holding events or selling tickets for a continuous period of thirty (30) days or more, the Parties agree to enter into good faith discussions to temporarily rescope the Services and Charges where feasible.

13.4  If the Force Majeure event continues for a period of three (3) consecutive months or more, either Party may terminate this Agreement upon written notice to the other Party. In such case, the Client shall pay to Spektrix all Charges accrued through the effective date of termination, provided that Spektrix has continued to provide the Services in accordance with this Agreement.

 

14. Assignment

14.1  The Client shall not assign, transfer or otherwise dispose of any of its rights or responsibilities under this Agreement without the prior written consent of Spektrix.

14.2  Spektrix may assign, delegate, subcontract, or transfer its rights or obligations under this Agreement to a parent, subsidiary, or affiliated entity without Client consent, provided that:(a) such entity is capable of performing Spektrix’s obligations under this Agreement; and (b) the transfer does not materially reduce the level or quality of the Services provided to the Client. Spektrix shall provide the Client with written notice of any such assignment or transfer. If the Client objects to any transfer under this clause, it may may elect to terminate this Agreement for convenience by providing not less than thirty (30) days’ prior written notice to Spektrix. Such termination shall be deemed to be a termination under Section 11.4.

14.3  14.3    In the event that the Client undergoes a change of control (as defined below) and Spektrix believes that such change of control shall: (i) affect the ability of the Client to pay the Charges; or (ii) affect the ability of Spektrix or the Client to perform their respective obligations under this Agreement; or (iii) have a material impact on the scope or type of use of the Application Services then Spektrix shall be entitled to terminate this Agreement immediately on notice, or, in the sole discretion of Spektrix, propose changes to this Agreement as a consequence of such change of control and, in the absence of agreement of the Client to such changes given within ten (10) days of such proposal, Spektrix shall be entitled to terminate this Agreement immediately on notice.  For the purposes of this Section “change of control” shall occur where (a) there has been a change of ownership of shares or other interests in the Client resulting overall in more than 50% of the total voting rights conferred by all such shares or other interests being held directly or indirectly by a person who did not hold at least 50% of the voting rights at the date of this Agreement or (b) the whole or a substantial part of the business or assets of the Client has been sold or otherwise disposed of.

 

15. No Third-Party Beneficiaries

15.1  This Agreement is not intended to confer and does not confer any rights or benefits on any third party and no third party shall have any right to enforce any of the terms of this Agreement (except for the indemnities referenced herein).

16. Independent Contractors

16.1  The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement or otherwise shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, or employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner.

17. Amendment and Modification

17.1  Spektrix may in its discretion change or modify the terms of this Agreement from time to time provided that such changes do not have a materially adverse impact on the Services or Client or materially affect the rights, remedies and obligations contained within this Agreement (a minor change). If Spektrix makes any other changes to this Agreement (a material change), such changes will not take effect until the commencement of any renewal period (if applicable), unless required by applicable law or otherwise agreed in writing between the parties. Spektrix shall notify the Client of any changes in accordance with this clause 17.1 and Client’s continued use of the Services will confirm the Client’s acceptance of the revised Agreement. 

17.2  Any material change to the terms of this Agreement in accordance with clause 17.1 will be deemed accepted by the Client and binding on it unless Spektrix receives written notification within 30 Business Days of the Client being informed of a material change to the terms of this Agreement. If Spektrix receives such notice from the Client, the Parties shall attempt to resolve the modification; provided, however, that neither Party shall be obligated to negotiate and this provision shall not affect the other rights, obligations, options or remedies of the Parties.

18. Severability

18.1  If any term or provision of this Agreement is found to be invalid or unenforceable under applicable law, such determination of invalidity or unenforceability shall not affect any other term or provision of this Agreement and the remaining terms and provisions of this Agreement shall remain in full force and effect in accordance with their terms and the Agreement shall be modified to the extent necessary to make such term or provision valid and enforceable within the scope of the intent of the Parties.

 

19. No Waiver; Construction

19.1  No provision of the Agreement shall be waived unless agreed in writing to be waived by the Party to be charged with such waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof. No waiver by any Party shall operate or be construed as a waiver of any provision not expressly identified in the written waiver.

19.2  No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party hereto by reason of such party or its counsel having, or being deemed to have, structured or drafted such provision.  “Including” and “includes” are inclusive and mean “including, without limitation.”  “Or” means “and/or.”

 

20. Entire Agreement

20.1  This Agreement contains the entire agreement between the Parties with respect to the subject matter of this Agreement (the “Subject Matter”) and supersedes all other prior or contemporaneous agreements or understandings, both written and oral, between the Parties relating to the Subject Matter.

20.2  The terms, conditions, representations and warranties in this Agreement are in lieu of all warranties, conditions, terms, representations, statements, undertakings and obligations whether express or implied by law, custom, usage or otherwise all of which are hereby excluded to the fullest extent permitted by law. The Parties hereby confirm that they have not relied upon any representations, warranties, statements, promises, communications or any facts or other matters which have not been expressly stated in this Agreement. Notwithstanding any provision to the contrary, nothing in this Agreement limits or excludes either Party’s liability for fraudulent misrepresentations.

 

21. Law and Jurisdiction

21.1  This Agreement, and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement (including any non-contractual disputes or claims), shall be governed by and construed in accordance with the law of the State of New York excluding the application of its conflict of law rules. The Parties irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts in New York County, State of New York for all disputes arising out of or relating to this Agreement and waive any objection based on forum non convenient or any other objection to venue.  With respect to this Agreement, each Party waives personal service of any summons and complaint or other process and papers therein and agrees that service may be made by certified mail, return receipt requested, directed to the Party at the address set forth herein or other address thereof of which the sending Party has received notice.