General Terms & Conditions

GENERAL TERMS AND CONDITIONS

All fees must be paid in U.S. currency.

In accordance with the terms of your agreement with MainSpring, Inc., a Maryland corporation (“MainSpring”) for the purchase and use of certain software programs and/or support services, as more clearly described in that certain agreement (and any schedules, exhibits, addenda or other items referenced therein) (collectively, the “Agreement”) between you and MainSpring (such products and/or services, collectively, the “Services”), you, as a customer of MainSpring (“Client”) hereby agree to the following General Terms and Conditions (these “Terms and Conditions”):

1. Applicability

These Terms and Conditions, in addition to those outlined, if any, in Client’s Agreement with MainSpring, or otherwise provided or communicated to Client by MainSpring (collectively, the “Terms”), govern the Services provided by MainSpring. The Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral with respect to the Services. These Terms prevail over any of Client’s general terms and conditions. For the avoidance of doubt, provision of the Services to Client does not automatically constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend the Terms unless expressly agreed by Client and MainSpring in writing in MainSpring’s sole discretion. MainSpring shall provide the Services to Client as described in the Agreement and in accordance with these Terms and Conditions.

2. Client’s Acts or Omissions

Client acknowledges and agrees that, if MainSpring’s performance of its obligations under the Terms is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, MainSpring shall not be deemed in breach of its obligations under the Terms, otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.

3. Fees

1. Client acknowledges and agrees that it must have a current New Client Profile (NCP) on file with MainSpring which shall be established at the time of the Agreement. Fees for Services (“Fees”) will be calculated in accordance with the terms of the Agreement and as set forth in greater detail in Schedule A attached hereto and incorporated herein by reference (“Fee Schedule”). Unless otherwise specified in the Fee Schedule, Fees are billed monthly, in advance, commencing on the effective date specified in the Agreement (the “Effective Date”) and are net thirty (30) (the “Due Date”). If the Effective Date is other than the 1st of the month, prorated Fees for the initial month and next month will be billed in advance. A finance charge of 1.5% per month (18% per year) will be assessed on any unpaid balance remaining after the Due Date.
2. MainSpring, Inc., accepts automated clearing house (ACH) direct deposits (push), ACH withdrawals (pull) or checks (least preferred due to delays/loss/theft). Clients will incur a four percent (4%) administrative fee if/when paying by credit card. Client is responsible for all reasonable collection/legal fees for balances MainSpring needs to collect with the assistance of a third-party. Fees specified in the Agreement, unless stated otherwise in the Agreement, are subject to increase periodically. MainSpring reserves the right, in its sole discretion, to terminate the Services in the event Client fails to make payments in accordance with the Terms.

4. Taxes

Client shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder.

5. Agreement Term; Rights Granted by MainSpring

Subject to the restrictions and limitations set forth in the Terms, including payment of all applicable Fees, MainSpring hereby grants to Client, during the term (as specified in the Agreement) (the “Agreement Term”), a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to access and use the Services. The license is for the sole purpose of enabling Client to use the Services for its own internal business purposes in the manner outlined in and permitted by the Agreement. Client acknowledges and agrees that and the Terms will be in effect during the Agreement Term and shall survive, as applicable, in accordance with these Terms and Conditions. Any renewal of the Agreement and Client’s right of termination, if any, will be governed in accordance with the terms of the Agreement.

6. Rights Granted by Client

For purposes of this Section 8, “Client Content” means any files, materials, data, or other content stored or transmitted by Client in connection with the Services. Client acknowledges and agrees that:

1. Client has all rights in the Client Content necessary to grant the rights of access, copying and usage needed for MainSpring to properly perform the Services;
2. Client Content, and/or such access, copying and usage, does not violate any applicable law or any agreement to which Client is a party. Client grants MainSpring and its subcontractors the limited rights that are reasonably necessary for MainSpring to provide the Services; and
3. Client is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, intellectual property ownership and right to use of all Client Content, and the means by which Client acquires, uses and submits the Client Content, including compliance with any regulations and laws applicable to Client Content. Client is responsible for providing all notices and obtaining all licenses, rights and consents that may be required in order to allow MainSpring to process Client Content as described in the Terms.
4. Client hereby grants MainSpring a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to utilize any aspect of the Services delivered to Client hereunder, Client’s name, website, and other identifying Client information, on MainSpring’s website and in other marketing materials, as MainSpring deems appropriate from time to time in its sole discretion.

7. Acceptable Use Policy

Client acknowledges and agrees that it shall not, and Client shall not permit any third party to: (a) use the Services in any manner or for any purpose other than as expressly permitted by the Terms; (b) use the Services to conduct any illegal activity; (c) sell, lend, rent, resell, lease, or sublicense the Services to any third party; (d) violate any applicable export control or trade sanctions laws or other applicable laws; (e) use the Services in a manner that causes, in MainSpring’s sole discretion, an inordinate burden on MainSpring’s system resources (i.e., bandwidth); (f) store or transmit Client Content that: (x) is illegal to store or transmit; (y) contains any material that encourages conduct that could constitute a criminal offense; or (z) contains malicious code; (g) send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”; (h) use the Services for purposes of bench-marking or other comparative analysis intended for publication without MainSpring’s prior written consent; (i) engage in any activity that interferes with or disrupts the Services or the servers and networks that are connected to the Services; or (j) incorporate, link or use any third party software or code in conjunction with any Services in such a way that (x) creates, purports to create or has the potential to create, obligations with respect to any such Services, including, without limitation, the distribution or disclosure of any portion of the Services; or (y) grants, purports to grant, or has the potential to grant to any third party any rights to any intellectual property rights in the Services.

8. Representations and Warranties

1. MainSpring represents and warrants to Client that it shall provide the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under the Agreement.
2. With respect to hosting services only (as specified in the Agreement, if applicable), MainSpring does not guarantee that hosting services will be uninterrupted, error-free, or completely secure. Client acknowledges that there are risks inherent with internet connectivity that could result in the loss of privacy, confidential information, and property. MainSpring does not provide backups outside of MainSpring’s stated backup schedule in the Agreement or otherwise. Client backups are not retained longer than the agreed upon retention period as specified in the Agreement. In consideration for its receipt of the Services, Client hereby releases MainSpring from liability for loss of any data to the extent that the data has changed since the last backup specified in the Agreement. Client acknowledges and agrees that MainSpring is not responsible for unauthorized access to Client’s data by a third party or Client’s unauthorized use of the Services. Servers provided through MainSpring’s hosting service are subject to the aforementioned MainSpring’s Acceptable Use Policy. MainSpring does not have knowledge to the data stored on third-party hosting servers. Clients are responsible for the data stored in the Client’s database(s) and the behavior of [its] users connecting to the system with regard to the adherence to local, state, and federal laws.
3. To the extent the Services require the use of any third-party software or other third-party service solutions (collectively, “Third-Party Software”), Client covenants and agrees that Client shall, in addition to these Terms, comply with any such third-party terms and conditions applicable to the use of such Third-Party Software as required by such third-party. Client acknowledges and agrees that Client is responsible for obtaining, reviewing, and complying with any applicable third-party terms and conditions associated with the use of any Third-Party Software.

9. Disclaimer of Warranties

EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 10(A) ABOVE, MAINSPRING MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

10. Limitation of Liability

1. IN NO EVENT SHALL MAINSPRING BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT MAINSPRING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. IN NO EVENT SHALL MAINSPRING’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO MAINSPRING PURSUANT TO THE AGREEMENT.

11. Termination

In addition to any remedies that may be provided under the Terms, MainSpring, at its sole discretion, may terminate the Agreement, prior to the expiration of the Agreement Term with immediate effect upon written notice to Client, if Client: (a) fails to pay any amount when due under the Terms; (b) has not otherwise performed or complied with any provision of the Terms, in whole or in part; (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or (d) upon an assignment in accordance with Section 16.

12.Waiver

No waiver by MainSpring of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by MainSpring. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

13.Force Majeure

No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached the Terms, for any failure or delay in fulfilling or performing its obligations under the Terms (except for any obligations of Client to make payments to MainSpring hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, epidemics or pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages, or slowdowns or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages; and (i) other similar events beyond the reasonable control of the Impacted Party.

14. Assignment

Unless otherwise specified in the Agreement, Client acknowledges and agrees that MainSpring may freely assign this Agreement, in whole or in part, to an affiliate or third party only with the prior consent of the client. Client may freely assign this Agreement to a successor-in-interest of its entire business upon prior written notice to MainSpring.

15. Relationship of the Parties

The relationship between the parties is that of independent contractors. Nothing contained in the Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

16. No Third-Party Beneficiaries

Except as provided in Section 17, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Terms.

17. Indemnification

MainSpring hereby agrees to indemnify and hold Client harmless from all claims, losses, and liabilities (including reasonable attorneys’ fees) arising from any claim or suit brought against Client by a third party based on Client’s use of the Services rendered by MainSpring under this Agreement, but only to the extent such claims, losses and liabilities (a) relate directly to MainSpring’s fraud, gross negligence, willful misconduct, or breach of this Agreement in performing such Services and (b) are not attributable, in whole or in part, to the fraud, gross negligence, willful misconduct, or breach of this Agreement by Client. This paragraph sets forth MainSpring’s sole liability and entire obligation and the Client’s exclusive remedy for any action that is brought against MainSpring. Client will defend indemnify and hold MainSpring harmless from all claims, losses, and liabilities (including reasonable attorneys’ fees) relating to, arising out of, or in any way in connection with (a) Client’s access to or use of the Services; (b) Client Content or Client Files; or (c) Client’s breach or alleged breach of the Terms.

IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE TO THE OTHER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, THE PERFORMANCE OR NONPERFORMANCE BY EITHER PARTY OF ITS OBLIGATIONS HEREUNDER AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

18. Governing Law

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Maryland without giving effect to any choice or conflict of law provision or rule (whether of the State of Maryland or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Maryland.

19. Submission to Jurisdiction

 Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Maryland in each case located in the City of Frederick and County of Frederick, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

20. Notices

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 20.

21. Severability

 If any term or provision of the Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.

22. Survival

Provisions of these Terms and Conditions, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Indemnification, Governing Law, Submission to Jurisdiction, and Survival.

23. Updates to these Terms and Conditions

MainSpring may update these Terms and Conditions from time to time by posting them online, and Client is responsible for referring back to them regularly.  If a revision, in MainSpring’s sole discretion, is material, MainSpring will notify Client (by, for example, sending an email to the email address associated with the applicable Client Account).  By continuing to access or use the Services after revisions become effective, Client agrees to be bound by the revised Terms. If Client does not agree to the revised Terms and Conditions, Client has the right to object to such revised terms in writing to MainSpring within thirty (30) days of receiving notice of the change.

24. Amendments

Subject to Section 23 herein, any amendment or modification of any provision of the Terms must be in writing, dated and signed by both parties thereto.

25. Non-Solicitation

 The Client hereby agrees that during the Agreement Term and for a period of two (2) years after the expiration or earlier termination of the Agreement Term, without obtaining the prior written consent of MainSpring, neither Client nor any of its affiliates or representatives (each, a “Restricted Person”) shall directly or indirectly, for itself or on behalf of another person or entity: solicit for employment or otherwise induce, influence, or encourage to terminate employment with MainSpring or employ or engage as an independent contractor any current or former employee of MainSpring (each, a “Covered Employee”), except (i) pursuant to a general solicitation through the media that is not directed specifically to any employees of MainSpring, unless such solicitation is undertaken as a means to circumvent the restrictions contained herein or (ii) if MainSpring terminated the employment of such Covered Employee before the Restricted Person having solicited or otherwise contacted such Covered Employee or discussed the employment or other engagement of the Covered Employee. Restricted Person agrees that the duration, scope and geographical area of the restrictions contained this Section 25 are reasonable.  Upon a determination that any term or provision of this Section 25 is invalid, illegal, or unenforceable, the court may modify this Section 25 to substitute the maximum duration, scope, or, geographical area legally permissible under such circumstances to the greatest extent possible to effect the restrictions originally contemplated by the parties hereto.