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1. Scope

These Terms govern the Products and Services offered by Speros to the Customer as may be further described in a relevant Order Form. All terms capitalized herein have the meaning set forth in Section 12.  These Terms may be amended by Speros from time to time, and shall apply to all orders for Products and Services made by the Customer after the Effective Date.

2. Order form and acceptance

Upon Customer’s request for Products or Services, Speros shall provide an Order Form to Customer. If such Order Form is acceptable to the Customer, the Customer shall execute said Order Form. No work shall be performed until an Order Form is executed by both Parties. Order Forms may be in electronic or physical format and delivered to Customer by Speros in a manner chosen by Speros.

3. Fees

3.1 Generally. Customer shall pay Speros the Fees for Products and Services as determined by Speros and as indicated in any of the applicable provisions below: (i) on invoices provided by Speros to the Customer with respect to Products and Services supplied; or (ii) as stated in the requisite Order Form. If more than one provision in this Section 3.1 applies, the latter of the applicable documents shall govern with regard to Fees.

3.2 Changes in fees. The Fees shall take into consideration “one-off” costs such as design and production. Speros reserves the right to implement a surcharge for alterations to specifications of Products or Services after execution of an Order Form. Speros reserves the right to change the Fees as a result of industry changes, third party fee changes, changes in applicable law, or for any other reason, in its sole discretion. In addition, Speros charges additional Fees for work performed outside of normal business hours.

3.3 Taxes. All Fees are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Speros’ income, revenues, gross receipts, personnel or real or personal property or other assets.

3.4 Payment Method. Customer shall pay all amounts due to Speros by any method agreed to by the Parties in the relevant Order Form. TO THE EXTENT ALLOWED BY APPLICABLE LAW AND THE APPLICABLE CREDIT CARD COMPANY, SPEROS SHALL PASS THROUGH ANY CREDIT CARD PROCESSING FEES INCURRED BY SPEROS AND DIRECTLY ATTRIBUTABLE TO CUSTOMER, AND CUSTOMER AGREES TO PAY SUCH FEES IN ADDITION TO ANY FEES CHARGED FOR THE SERVICES.

3.5 Payment Date. The Payment Date will be stated on an invoice or Order Form. If no time is stated, then the Payment Date shall be the day of delivery of any Products or at the time Services are commenced, unless credit terms have been previously agreed to, in writing, by Speros. TIME IS OF THE ESSENCE FOR PAYMENT OF THE PRODUCTS AND SERVICES BY THE PAYMENT DATE.

3.6 Interest. Any amounts payable hereunder that are not paid by Customer by the Payment Date shall incur interest at the rate of 1.5% per annum calculated on a daily basis, or, if lower, the highest amount allowed by applicable law. Interest shall be payable on any monies outstanding under the Agreement beginning on the Payment Date and continuing until the date payment is actually received by Speros, but without prejudice to Speros’ other rights or remedies. Speros reserves the right to suspend Customer’s access to and use of the Products and Services at any time until all Fees then past-due are paid in full. Except as expressly otherwise provided herein, all Fees are non-refundable and shall be paid without right of setoff, and payment obligations may not be canceled, regardless of actual usage of the Products or Services.

3.7 Travel Expenses. In addition to any and all Fees for Products and Services, Customer will reimburse Speros for any reasonable Expenses incurred by Speros in connection with providing the Products and Services. Speros will provide reasonable documentation for all Expenses as requested by Customer. Customer shall reimburse Speros for Expenses within thirty (30) days after submission of the Expenses to Customer by Speros. Speros splits travel distances into zones. Zone 1 is any distance no more than sixty (60) miles from Speros’ office. Zone 2 is any distance no more than one hundred and twenty (120) miles from Speros’ office. Zone 3 is any distance greater than one hundred and twenty (120) miles from Speros’ office. Pricing for travel zones may be further described in an Order Form.

4. Access, Use, and Ownership

4.1 Access and Use. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Speros hereby grants Customer a non-exclusive, non-transferable right to access and use the Products and Services during the MPSA Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use only. Speros shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Products and Services, as applicable. The total number of Authorized Users will not exceed the number set forth in the Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.

4.2 Documentation. Subject to the provisions of this Agreement, Speros hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable license to use the Documentation during the MPSA Term solely for Customer’s internal business purposes in connection with its use of the Products and Services.

4.3 Prohibited Activities. Customer shall not use the Products or Services for any purposes beyond the scope of the access and use granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any third party to: (i) copy, modify, or create derivative works of the Products, Services, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Products, Services, or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Products, Services, in whole or in part; (iv) remove any proprietary notices from the Products, Services or Documentation; (v) use the Products, Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (vi) interfere with, disrupt, interrupt, restrict, prevent or disable, access to or use of the Products or Services, or any components thereof, or make the Products or Services available in a timesharing or service-bureau environment, or for the benefit of a third party.

4.4 Acceptable Use. Customer shall only use the Products and Services in a lawful manner, consistent with all applicable laws and regulations, and only for lawful and legitimate purposes. Customer may not, on or through the Products or Services: (i) offer, promote, engage in, or provide instruction in illegal activities; or (ii) use, display, or make available any information or material that is false or misleading, that violates any rights of others, or that presents or portrays Speros other than in a professional, non-disparaging manner. Customer shall comply with any restrictions or limitations specified in this Agreement regarding the use of the Products or Services.

4.5 Use by Authorized Users. Customer is responsible and liable for all uses of the Products, Services, and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by, or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Products and Services, and shall cause Authorized Users to comply with such provisions.

4.6 Ownership Rights and Reservation of Title. Customer acknowledges that, as between Customer and Speros, Speros owns all right, title, and interest, including all intellectual property rights, in and to the Products (unless otherwise stated in an Order Form), Services, Documentation, and any and all intellectual property, components, materials, works, ideas, and know-how provided to Customer or any Authorized User in connection with the foregoing. With respect to Third-Party Products, the applicable third party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. Speros acknowledges that, as between Speros and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Speros a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Speros to provide the Products and Services to Customer. If Customer or any of its employees or contractors sends or transmits Feedback to Speros, Speros is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. The Order Form may further set forth additional ownership rights to the Products and Services provided hereunder. For the avoidance of doubt, ownership and title of all Products remains with Speros until all Fees owed by the Customer under the Agreement, or otherwise owed to Speros, have been paid in full. Speros reserves all rights not expressly granted to Customer in this Agreement.

4.7 Service Levels and Support. Subject to the terms and conditions of this Agreement, Speros shall use commercially reasonable efforts to make the Services available in accordance with applicable service levels set out in an Order Form. Any support or maintenance services to be provided by Speros shall be set out in an applicable Order Form. If the Order Form sets forth no support or maintenance services, then Speros will not provide any such services.

4.8 Additional Services. The Parties may, from time to time, execute additional Order Forms or written addenda that reference this Agreement and describe additional Products or Services to be provided by Speros to Customer hereunder. To be effective, any such Order Form or addendum must be signed by duly authorized representatives of each of the Parties. Unless otherwise provided in such an Order Form or addendum: (i) the terms of this Agreement shall apply to and govern such document and any Products or Services provided thereunder; and (ii) the term for which any such additional Products and Services shall be provided shall be co-terminous with the MPSA Term of this Agreement and the other Products and Services being provided hereunder.

4.9 Subcontractors. Speros reserves the right to subcontract any of its obligations under this Agreement, including any Order Form, as it reasonably deems necessary to provides the Products and Services hereunder.

5. Warranty

5.1 Mutual. Each Party represents and warrants that: (i) it is duly organized, validly existing, and in good standing under the laws of its applicable state, commonwealth, or province; (ii) it has all necessary rights, powers, and authority to enter into and perform under this Agreement; and (iii) the execution and performance of this Agreement by it shall not violate any applicable laws or regulations and shall not breach any agreement, covenant, court order, judgment, or decree to which it is a party or by which it is bound.

5.2 Limited Products and Warranty. As Customer’s sole and exclusive remedy for any claim arising out of or related to the Products, Speros warrants that it will make reasonable repairs to any material defects in Products, if written notice of the claim is received by Speros no later than seven (7) days from the date the physical Products were delivered. No claim for repair shall be accepted under this Section 5.2. if: (i) any attempt to alter or repair the Products is made by any person not authorized by Speros, or (ii) if Customer makes any further use of such Products after giving such notice, or (iii) if the defective Products have been modified or incorrectly installed, stored, maintained or used by Customer. If Speros elects to repair or replace any defective physical Products, such work shall be undertaken at such place as Speros may reasonably specify and the Customer shall be responsible at Customer’s cost and Customer’s risk for shipment of the defective physical Products, to ship Products to the place specified by Speros.

5.3 Services. Speros warrants that the Services will be performed in a competent and workmanlike manner, in material accordance with standards common and prevalent in the industry and any applicable Documentation furnished by Speros. As Customer’s sole and exclusive remedy for a failure of the Services to conform to this limited warranty, Speros will, if Customer notifies Speros in writing and in reasonable detail, of the nature and extent of such failure within seven (7) days after such failure: (i) re-perform the applicable Services or otherwise cure such failure; or (ii) if Speros determines, in its sole discretion, that it is unable to re-perform the applicable Services or cure such failure through the exercise of commercially reasonable efforts, Speros may terminate this Agreement with respect to the non-conforming Services and refund to Customer the fees actually paid by Customer for the non-conforming Services.

5.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5: (I) SPEROS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT; (II) THE PRODUCTS AND SERVICES ARE PROVIDED “AS-IS”, WITHOUT ANY WARRANTIES OF ANY KIND; AND (III) SPEROS DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SERVICES ARE OR WILL NECESSARILY BE CONTINUOUSLY AVAILABLE, ERROR-FREE, OR APPROPRIATE FOR ANY PARTICULAR USE TO WHICH CUSTOMER OR ANY THIRD PARTY MAY CHOOSE TO PUT THEM. SPEROS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, OTHER THAN THOSE SET FORTH IN THIS SECTION 5, INCLUDING, BUT NOT LIMITED TO, (a) ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND (b) ANY IMPLIED WARRANTIES THAT MIGHT ARISE THROUGH USAGE OF TRADE OR CUSTOM, COURSE OF DEALING, AND COURSE OF PERFORMANCE, AND (c) WARRANTIES OF TITLE; AND (d) WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.2, SPEROS MAKES NO WARRANTY OF ANY KIND THAT THE PRODUCTS, SERVICES, OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE.

5.5 Third Party Products. Third Party Products may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products or Services. Third Party Products are not covered by the warranty in Section 5.2. Such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, SPEROS IS NOT RESPONSIBLE OR LIABLE FOR PERFORMANCE (OR FAILURES IN PERFORMANCE) OF THIRD-PARTY PRODUCTS.

6. Limitation of Liability

6.1 Certain Types of Damages. IN NO EVENT SHALL SPEROS OR ITS AFFILIATES, CONTRACTORS, LICENSORS, OR SUPPLIERS BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, COSTS OF COVER OR DELAY, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, 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 SPEROS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.2 Limitation of Liability Cap. IN NO EVENT SHALL SPEROS OR ITS AFFILIATES, CONTRACTORS, LICENSORS, OR SUPPLIERS AGGREGATE LIABILITY, ARISING OUT OF OR RELATED TO THE AGREEMENT, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SPEROS FOR THE APPLICABLE PRODUCTS AND SERVICES GIVING RISE TO THE CLAIM IN THE SIX (6) MONTHS PRIOR TO THE DATE OF SUCH ACTION. THE LIMITATIONS OF LIABILITY AND EXCLUSIONS OF CERTAIN TYPES OF DAMAGES AND CLAIMS SET FORTH HEREIN ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER ANY PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED, HAVE PROVEN INEFFECTIVE, OR HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

6.3 Basis of the Bargain. THE PROVISIONS OF SECTIONS 5, 6, and 7 OF THIS AGREEMENT ARE ALL FUNDAMENTAL AND SPECIFIC REQUIREMENTS OF THE BASIS OF THE BARGAIN BETWEEN CUSTOMER AND SPEROS, AND SPEROS WOULD NOT BE ABLE TO PROVIDE THE PRODUCTS AND SERVICES AT THE PRICE AND TERMS SET FORTH HEREIN WITHOUT EACH SUCH PROVISION.

7. Indemnity

7.1 By Customer. Customer shall indemnify, hold harmless, and defend Indemnified Parties against any and all Losses, arising out of any third party claim caused by: (i) Customer’s use of the Products or Services; (ii) violation of the Agreement by Customer; (iii) any bodily injury, death of any person or damage to real or tangible personal property caused by the negligent or more culpable acts or omissions of Customer or its personnel (including any reckless or willful misconduct); (iv) any failure by Customer to comply with any applicable federal, state or local laws, regulations or codes; (v)  any direction by Customer to Indemnified Parties that causes the violation of any applicable federal, state or local laws, regulations or codes; and (vi) any claim of infringement of intellectual property rights brought by a third party against Indemnified Parties for Customer’s violation of third party intellectual property rights other than for properly licensed use of the Products and Services in accordance with this Agreement.

7.2 By Speros. Speros shall indemnify, hold harmless, and defend Indemnified Parties against any and all Losses arising out of any third party claim that the Services provided by Speros infringes a patent, copyright, trade secret or other intellectual property or proprietary right. If the Products or Services become or, in Speros’ sole opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Speros shall use commercially reasonable efforts to: (i) obtain for Customer the right to continue using such Products or Services; or (ii) replace or modify such Product or Service so that it becomes non-infringing without substantially compromising its principal functions, and if (i) or (ii) are not commercially practical, then terminate this Agreement, or the applicable Order Form, and refund Customer the pro rata portion of any Fees paid for the terminated Product or Service corresponding to the period terminated. Speros will have no liability and shall not be required to indemnify, hold harmless, or defend Indemnified Parties under this Section 7.2 to the extent such Losses arise from any of the following: (i) Customer’s use of the Products or Services in a manner inconsistent with its intended use under the provided Documentation; (ii) Customer’s breach of this Agreement; (iii) Customer Data; (iv) non-Speros material, including the combination of any non-Speros material with the Products or Services; (v) Speros’ compliance with Customer’s specifications or instructions; or (vi) Customer’s use of the Products or Services after Speros notifies Customer to discontinue use due to a third party infringement claim. THE FOREGOING STATES SPEROS’ ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR MISAPPROPRIATION HEREUNDER.

7.3 Procedures. The Party seeking indemnification under this Section 7 shall give the indemnifying Party (a) prompt written notice of any such claim or allegation, (b) control of the defense and settlement thereof (provided that any settlement of such claim that does not contain an unconditional release of the Indemnified Party will require the prior written consent of such Indemnified Party) and (c) reasonable assistance in such defense or settlement.

8. Security and Backup

8.1 Security. Customer Data may be required by Speros to provide and support the Products and Services, for example, to authenticate Authorized Users and to respond to requests for support.  Customer shall ensure that all Customer Data is accurate and correct at all times during the MPSA Term.  Speros shall only use Customer Data in accordance with this Agreement and applicable law. Unless otherwise agreed to by the Parties in an Order Form, Customer shall maintain throughout the MPSA Term an industry-standard information security program, including physical and technical security policies and procedures.  The program shall include measures: (a) to protect Customer Data and the Products and Services from accidental loss and from unauthorized access, use, alteration or disclosure; and (b) which provide a level of security appropriate to the nature of the data and the risk represented by its transfer, processing, use and storage. Unless otherwise agreed to by the Parties in an Order Form, Customer is solely responsible for ensuring the security and confidentiality of all Customer Data.  Without limiting the foregoing, Customer shall use commercially reasonable efforts to prevent unauthorized access or use of the Products and Services, and shall contact Speros immediately (but in no event later than one (1) business day if: (a) Customer Data related to the Products or Services, or any associated password, is lost, stolen or disclosed to an unauthorized person; or (b) Customer reasonably believes the Products or Services have otherwise been compromised.

8.2 Technical Requirements; Disaster Recovery Policy. Unless Speros is hosting the Products and Services for Customer, Customer shall, throughout the MPSA Term, ensure it maintains hardware, software, equipment, infrastructure, and other resources and technology at its applicable data center, and such appropriate and redundant network bandwidth connecting such data center to the Internet, as is reasonably required to access the Products and Services in accordance with the terms of this Agreement. In addition, throughout the MPSA Term, Customer shall maintain, and update to remain current, a reasonable and appropriate disaster recovery plan.

8.3 Backup. Speros requires Customer to have a Backup for any data that Speros touches, or that touches any component Speros has any responsibility for.  The Backup must have an offsite component that is accessible in the event the site becomes inaccessible or is fully destroyed.  If Customer does not maintain a Backup throughout the MPSA Term, Speros shall not be liable for any loss of data caused from sources related to failure to have a Backup.  If Customer does not maintain a Backup, Customer maintains the risk for data loss.

9. Insurance

During the MPSA Term, each party shall, at its own expense, maintain and carry insurance in full force and effect, which covers the indemnity provision in Section 7 of these Terms with financially sound and reputable insurers.

10. Term and Termination

10.1 Term. The Agreement shall be in effect for the MPSA Term. The applicable Order Form shall set forth the term for applicable Products and Services.

10.2 Suspension by Speros. Without prejudice to any other remedies Speros may have, if at any time the Customer is in breach of any obligation (including those relating to payment), Speros may (in its sole discretion) immediately suspend or terminate the supply of Products or Services, or both, to the Customer and any of its other obligations under the Agreement.

10.3    Termination by Speros.

  1. Speros may terminate this Agreement, or any Order Form hereunder, in whole or in part, for any reason upon sixty (60) days prior written notice to Customer.
  2. Without prejudice to Speros’ other remedies at law,  Speros shall be entitled to cancel all or any part of this Agreement immediately if any of the following occur: (i) any money payable to Speros becomes overdue, or in Speros’ opinion Customer will be unable to meet its payments as they fall due; or (ii) Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or (iii) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of Customer or any asset of the Customer; or (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) Customer’s or any Authorized User’s use of the Products or Services disrupts or poses a security risk to any other customer or vendor of Speros; or (vi) Customer, or any Authorized User, is using the Products or Services for fraudulent or illegal activities; or (vii) Speros’ provision of the Products or Services to Customer or the Authorized Users is prohibited by applicable law; or (viii) any vendor of Speros has suspended or terminated Speros’ access to or use of any third-party services or products required to enable Customer to access the Products or Services.
  3. If Speros terminates this Agreement in accordance with Sections 10.3b (i)-(vi), all amounts Customer owes to Speros, whether or not due for payment, immediately shall become due and payable. In addition, Speros will not be liable to the Customer for any loss or damage the Customer suffers because Speros exercised its rights under this Section 10.

10.4 Termination by Customer. Customer may terminate this Agreement, or any Order Form hereunder, in whole or in part, if Speros materially breaches this Agreement, and fails to cure such breach within thirty (30) days after notice of such breach from Customer.

10.5 Early Termination Fee. If Speros terminates Products or Services for nonpayment or other default before the end of the MPSA Term, or if Customer terminates any Products or Services for any reason other than (a) in accordance with Section 10.4; (b) in accordance with any cancellation policy provided in the applicable Order Form; or (c) pursuant to a mutually agreed upon change of terms, conditions or rates, Customer agrees to pay the Early Termination Fee. The Early Termination Fee is not a penalty, but rather a charge to compensate Speros for Customer’s failure to satisfy the commitment on which Customer’s rate plan is based.

10.6 Effects of Termination. Upon any expiration or termination of this Agreement: (i) Speros shall cease providing, and shall disable Customer’s access to, the Products and Services; (ii) Customer shall immediately cease access to and use of the Products and Services; and (iii) Customer shall promptly pay to Speros any amounts payable pursuant to this Agreement through the effective date of termination.

11. Miscellaneous

11.1 Governing Laws and Dispute Resolution. This Agreement and all performance hereunder, and any claim, suit, action, or proceeding arising out of or relating to this Agreement, shall be governed by and construed in all respects in accordance with the substantive laws of the United States of America and State of Georgia, without regard to conflicts of laws provisions. The exclusive forum and venue for any legal or equitable claim or action brought in connection with this Agreement shall be the state and federal courts located in Savannah, Georgia. The Parties hereby irrevocably submit and consent to the personal and subject matter jurisdiction of such courts and irrevocably waive any objection or claim that venue is improper for any reason in such courts.

11.2 Entire Agreement and Prevailing Terms. The Agreement comprises the entire agreement between the Parties and supersedes all prior or contemporaneous agreements, representations, warranties and communications either written or oral between the Parties. If there is an inconsistency between these Terms, and an Order Form, these Terms shall prevail unless the provision in the Order Form specifically states otherwise. This Agreement shall prevail over any of Customer’s general terms and conditions of purchase regardless whether or when Customer has submitted a purchase order with such terms.

11.3 Waiver. No waiver by Speros of any provision of these Terms is effective unless explicitly set forth in writing and signed by Speros.

11.4 Confidential Information and Equitable Relief. Confidential Information is confidential, provided to Customer solely for use in connection with the Products and Services in accordance with this Agreement, and may not be disclosed or copied unless authorized in advance by Speros in writing. Any PHI transmitted or used during the course of the Services being offered by Speros shall be governed by an applicable Business Associate Agreement between the Parties.  Upon Speros’ request, or termination pursuant to Section 10 of these Terms, Customer shall promptly return or destroy all documents and other materials received from Speros. Speros shall be entitled to injunctive relief for any violation or threatened breach by Customer of this Section 11.4 or Section 4 because Customer acknowledges and agrees that such violation or threatened breach would cause Speros irreparable harm for which monetary damages would not be an adequate remedy.

11.5 Force Majeure. Neither Party shall be deemed in default of any provision hereof (other than payment obligations) as a result of, or be liable for any delay, failure in performance, or interruption of Services resulting from, directly or indirectly, acts of God, civil or military authority, civil disturbance, war, strikes, fires, hurricanes, tropical storms, other catastrophes, power or other utility failure, Internet or telecommunications disruptions, or any other cause beyond its reasonable control.

11.6 Notices. All notices hereunder shall be in writing and shall be deemed to have been given when delivered by first class mail or nationally recognized express carrier to the respective address of the applicable Party, and as updated by such Party from time to time by notice delivered in accordance herewith. The address for notices to be sent to Speros is: 2141 Rowland Avenue, Savannah, GA, 31404. Customer’s address for notices is set forth on the applicable Cover Page.

11.7 Severability. If any provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement to affect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

11.8 Assignment. Speros may assign this Agreement at any time. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Speros. Any purported assignment or delegation in violation of this Section 11.8 will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

11.9 Export Regulation. The Products and Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Products or Services or the underlying software or technology to, or make the Products or Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Products and Services or the underlying software or technology available outside the US.

11.10 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

11.11 Non-Solicitation. Neither party shall, during the MPSA Term and for a period of one (1) year after any termination or expiration of this Agreement, directly, or indirectly, whether through an affiliate or otherwise, offer employment to, solicit for employment, hire, employ, engage in any professional capacity, or retain the services of any personnel of the other party engaged in performance under this Agreement, without the express prior written consent of the other party. The parties agree that the duration and scope of the restrictions contained in this Section 11.11 are reasonable. If either party breaches the provisions of this Section 11.11 the breaching party shall be required to pay the nonbreaching party the value of such employee’s annual salary for the year preceding the date of such breach, in addition to any remedies available to such party in equity.  The parties agree that it would be extremely difficult to quantify the actual damages which would result from a violation of this provision, and that the value of such employee’s annual salary for the year preceding the date of the breach is a reasonable estimate of the actual damages which would result from such a violation and is not a penalty.  This Section 11.11 survives the termination or expiration of this Agreement.

12. Definitions

12.1 “Agreement” means together these Terms and all Order Form(s), including all Exhibits, Schedules and Addendums thereto.

12.2 “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Products or Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Products or Services has been purchased hereunder. Authorized Users are subject to any scope of use requirements set forth in an Order Form.

12.3 “Backup” means an industry-standard backup system adequate to meet the needs of Customer’s information technology systems and Customer Data.

12.4 “Confidential Information” means all non-public, confidential or proprietary information of Speros, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, intellectual property, software, or rebates, disclosed by Speros to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Agreement. Any information that is: (a) in the public domain, other than by Customer’s release; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party, shall not be considered Confidential Information under this Agreement.

12.5 “Customer” is the entity that enters into one or more Order Forms for the purchase of Products, Services, or both from Speros. Customer shall be listed on the applicable Order Form and the Cover Page to these Terms.

12.6 “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.

12.7 “Documentation” means Speros’ user manuals, handbooks, and guides relating to the Products or Services provided by Speros to Customer either electronically or in hard copy form relating to the Products or Services.

12.8 “Early Termination Fee” means a sum equal to: (i) the remaining payments due and payable under the Agreement; and (ii) any offboarding fees charged by third parties or otherwise resulting from termination of the Services in whole or part.

12.9 “Effective Date” means the date the first Cover Page between the Parties is executed by Speros.

12.10 “Expenses” means expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including change fees to travel and accommodations.

12.11 “Feedback” means any communications or materials Customer relays or sends to Speros by mail, email, telephone, or otherwise, suggesting or recommending changes to the Products or Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like.

12.12 “Fees” means the money to be paid by Customer to Speros in exchange for Speros provision of the Products and Services specified in an Order Form.

12.13 “Indemnified PARTY” or “Indemnified Parties” means collectively the Party being indemnified under this Agreement and its officers, directors, employees, agents, affiliates, successors and permitted assigns.

12.14 “Losses” means collectively losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, that are incurred by Indemnified Parties.

12.15 “MPSA Term” means the period beginning on the Effective Date and continuing in full force and effect until the last Order Form between the Parties has terminated or expired, whichever is later.

12.16 “Order Form” means a document from Speros setting out the Fees, and specific Products or Services, or both, to be supplied to the Customer.

12.17 “Party” and collectively the “Parties”’ means together Speros and Customer.

12.18 “Payment Date” is the date upon which Fees for Products, Services, or both are due and payable.

12.19 “PHI” means Personal Health Information as such term is defined under the Health Insurance Portability and Accountability Act of 1996, and associated regulations, as amended.

12.20 “Products” means the equipment or other products, more fully described in an Order Form, provided by Speros under this Agreement in exchange for Customer paying the Fees hereunder.

12.21 “Services” means the services such as consulting, implementation, software-as-a-service offerings, support or other services listed in an Order Form, provided by Speros under this Agreement in exchange for Customer paying the Fees hereunder.

12.22 “Speros” means Speros, Inc., a Georgia Corporation, with a principal office located at 2141 Rowland Avenue, Savannah, GA, 31404.

12.23 These “Terms” means these master products and services terms and conditions that govern the relationship between the Parties.

12.24 “Third Party Products” means those products or services that are owned by a third party and incorporated into, or sold in connection with the Products or Services, or both.

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Reviews

"Great staff! immediately responsive to our urgent repair requests. They were meticulous in diagnosing our issues and made the repairs as quickly as they could. They are a pleasure to work with! Speros provided emergency repair service during a weekend when our cabling suffered accidental damage. Speros dispatched two technicians that worked tirelessly to restore the multiple severed fiber cables.  It was not long before the entire campus was back to normal.  It was exceptional and timely service by Speros."

Joan Strother
Savannah Country Day

"Speros has been our law firm's primary internet service provider for 10+ years. Rarely do I need to ask for a service work order because they are on top of regular maintenance. Recently, I was getting requests to reboot following critical software updates...so, asked to set reboots to be automatic after midnight, so it did not disrupt our workdays. Within 30 minutes of my request, it was done. THAT is good service. THANK YOU, SPEROS Team."

Doug Andrews
Andrews & Sanders Law Firm

"Have worked with Speros for over two decades mostly for old school landline requirements of my medical office.
Now have needed a website design.
In these extremely difficult times for all, I have found Heather, Esther, and Mary Elizabeth a phenomenal team to work thru this new endeavor for my private practice's needs."

Dr. Richard Roth
Roth Aviation Medical Services

"I am starting my own medical practice and have chosen Speros to assist with my logo design, website, IT support and phone systems. Great experience. The team at Speros is knowledgeable and professional."

Dr. Ismary De Castro
Savannah Endocrinology

"Everyone at Speros was very friendly and helpful. They communicated with our existing software/hardware management company and made it out to work on our network quickly on short notice, and had the whole issue solved in very little time. Will use this business again for our network needs. The tech that came out was amazingly easy to work with and was respectful of our hospitals covid-19 policies."

Anthony Phoumivong

"The biggest benefit of having Speros install and maintain our networking, servers, and backups have been the reliability. They provide professional, personalized service and have rapid response times. You can trust Speros to provide you with fast, professional service, and to resolve your complex issues quickly!"

Paul Waldhour
Paper Chemical Supply

"The biggest benefit of having Speros as our IT provider is their fast response times. Speros stays on top of your issues, and they follow through to make sure your problems are resolved correctly. They are a pleasure to work with!"

Ann Cowart
Oelschigs Nursery

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