Welcome to CarLink, a service offered through SpinDance, Inc.
This agreement explains the terms and conditions that will apply to your use of the SpinDance service, and constitutes a legally binding agreement between you and SpinDance, Inc. (SpinDance). By using the SpinDance service, you agree to all the terms and conditions in this agreement (Agreement).
The SpinDance service (the "Service" and the "Software") is provided by SpinDance., a Delaware corporation, with offices at 238 River Avenue, Holland, MI 49423, USA (the "Company"). This is a legal agreement ("Agreement") between you and the Company. Please read the Agreement carefully before registering for the Service. By completing your registration and clicking on the "I Accept" button below, you will become a registered user of the Service and Software (a "Subscriber") and you agree to be bound by the terms and conditions of this Agreement (the "Terms") for as long as you continue to be a Subscriber. IF YOU DO NOT AGREE TO THE TERMS, PLEASE DO NOT REGISTER FOR THE SERVICE. The Terms are subject to change by the Company at any time, effective upon posting updated terms on the Company's website; any use of the Service after such notice will constitute acceptance by the Subscriber of such changes.
SpinDance, Inc. developed a mobile applicataion, which allows users to monitor and control various vehicle devices (the "Software"). SpinDance, Inc. also operates a cellular data messaging network (the "Service"). This Agreement sets forth the terms and conditions under which SpinDance will provide the Software and the Service to Subscriber.
1.1 Grant. In consideration of the payment of the fees set forth in Section 2, SpinDance grants to Subscriber a limited, personal, nontransferable, nonexclusive license to use the Software and Service on Subscriber's cell phone and computer, solely on the terms and conditions set forth in this Agreement.
1.2 License Restrictions. In addition to other restrictions set forth in this Agreement, Subscriber may not:
1.2.1 Use, copy, modify or distribute the Software (electronically or otherwise) or any copy, adaptation, transcription or merged portion thereof except as expressly authorized under this Agreement;
1.2.2 Provide or attempt to provide access to the Software and Service to other individuals, other than users for which a fee has been paid in accordance with this Agreement, which such users' use of the Software and Service shall be governed by this Agreement;
1.2.3 Alter, merge, modify, adapt or translate the Software, or decode, decompile, reverse engineer, disassemble, modify, or otherwise reduce the Software to a human-perceivable form;
1.2.4 Remove the labels or any proprietary legends from the Software.
1.3 Service Restrictions. The Service is offered to the Subscriber in the U.S. Subscriber is not authorized to use the Service with their vehicle in another country.
1.3.1 Roaming Exceptions. Subscriber may be offered limited Roaming privileges to use the Service temporarily while visiting a neighboring country with their vehicle.
1.3.2 Abuse or Fraudulent Use. The Service is offered to Subscriber for personal use with a personal vehicle within the U.S. If Company suspects abuse or fraudulent use of the service it may restrict or cancel the service to Subscriber. Abuse and fraudulent use of Service include, but are not limited to: (i) attempting or assisting another to access, alter, or interfere with the communications of and/or information about another wireless customer; (ii) tampering with or making an unauthorized data connection utilizing the Service; (iii) installing any amplifiers, enhancers, repeaters, or other devices that modify the radio frequencies used to provide the Service; (iv) Subscription Fraud; (v) using the Service in such a manner so as to interfere unreasonably with the use of the Service by one or more other wireless customers or Subscribers or to interfere unreasonably with Company's ability to provide the Service; (vi) using the Service to convey obscene, salacious, or unlawful information; (vii) using the Service without permission on a stolen or lost device; (viii) Unauthorized Access; (ix) using the Service to provide voice over IP services; and (x) extensive use of the Service outside of the U.S. in such a manner as to unreasonably increase Company?s costs.
1.4 Title. SpinDance reserves all rights not expressly granted to Subscriber hereunder. Subscriber understands that the license granted herein transfers neither title nor proprietary rights to Subscriber with respect to the Software and Service.
1.5 New Versions. SpinDance may, in its sole discretion, add or remove functions or features, or provide fixes, updates and upgrades to the Software and/or Service. SpinDance has no obligation to provide any subsequent version of the Software and/or Service. Subscriber may have to enter into a new version of this Agreement to install or use a new version of the Software and/or Service. SpinDance will not have any liability for any direct or indirect damages caused by the release and/or the absence of release of new versions of the Software and/or Service.
1.6 Third-Party Services. Subscriber's use of the Software and Service may require the use of services provided by third parties, such as cell-phone service carriers. Subscriber is solely responsible for obtaining such services.
2.1 Subscription Fee. Subscriber agrees to pay SpinDance a subscription fee (the "Subscription Fee"). The Subscription Fee for each renewal period shall be due prior to the start of such period. SpinDance may increase or decrease the Subscription Fee applicable to any renewal term upon thirty (30) days' notice sent to the users e-mail address used for login.
2.2 Payment of Fees. Subscriber will pay the Subscription Fee via credit card. Subscriber's credit card will automatically be charged for the then-applicable Subscription Fee on the first day of each renewal period, unless Subscriber terminates this Agreement as provided in Section 4.1.
2.3 Taxes. The fees set forth in this Agreement do not include any amounts for taxes. Subscriber will pay all applicable taxes levied by any tax authority based upon this Agreement, the Software and any associated services, excluding any taxes based upon SpinDance's income.
3.1 Disclaimer of Warranties. THE SOFTWARE AND ALL ASSOCIATED SERVICES AND INFORMATION (COLLECTIVELY "SERVICES") ARE PROVIDED "AS-IS" AND "AS AVAILABLE." SUBSCRIBER'S USE OF THE SOFTWARE AND SERVICES IS AT SUBSCRIBER'S SOLE RISK. ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT ARE DISCLAIMED. SPINDANCE MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTIES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE SOFTWARE OR THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY SUBSCRIBER FROM SPINDANCE OR THROUGH OR FROM THE SOFTWARE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
3.2 Exclusion. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SPINDANCE OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR NEGLIGENCE) AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, EVEN IF SPINDANCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN ANY WAY RELATED TO (a) THE USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (c) ANY OTHER MATTER RELATING TO THE SOFTWARE OR SERVICES. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, IF SUBSCRIBER IS DISSATISFIED WITH ANY PORTION OF THE SOFTWARE OR SERVICES, SUBSCRIBER'S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SOFTWARE AND SERVICES.
3.3 Limitation. NOTWITHSTANDING ANY DAMAGES THAT SUBSCRIBER MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF SPINDANCE UNDER ANY PROVISION OF THIS AGREEMENT, AND SUBSCRIBER'S EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING, WILL BE LIMITED TO THE ANNUAL SUBSCRIPTION FEE PAID BY SUBSCRIBER FOR THE TERM IN WHICH THE CLAIM GIVING RISE TO THE CLAIM FOR DAMAGES AROSE.
3.4 Applicability. THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL APPLY REGARDLESS OF ANY ALLEGATION OR FINDING THAT A REMEDY FAILED OF ITS ESSENTIAL PURPOSE, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) AND EVEN IF SPINDANCE OR OTHERS WERE ADVISED OR AWARE OF THE POSSIBILITY OF LIKELIHOOD OF SUCH DAMAGES OR LIABILITY.
3.5 Underlying Wireless Service Carrier. SUBSCRIBER HAS NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING WIRELESS SERVICE CARRIER AND SUBSCRIBER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN SPINDANCE AND UNDERLYING CARRIER. SUBSCRIBER UNDERSTANDS AND AGREES THAT THE UNDERLYING CARRIER HAS NO LIABILITY OF ANY KIND TO SUBSCRIBER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. SUBSCRIBER AGREES TO INDEMNIFY AND HOLD HARMLESS THE UNDERLYING WIRELESS SERVICE CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY, DIRECTLY OR INDIRECTLY, IN CONNECTION WITH USE, FAILURE TO USE, OR INABILITY TO USE THE WIRELESS SERVICES EXCEPT WHERE THE CLAIMS RESULT FROM THE UNDERLYING CARRIER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY WILL SURVIVE THE TERMINATION OF THE AGREEMENT. SUBSCRIBER HAS NO PROPERTY RIGHT IN ANY NUMBER ASSIGNED TO IT, AND UNDERSTANDS THAT ANY SUCH NUMBER CAN BE CHANGED. SUBSCRIBER UNDERSTANDS THAT SPINDANCE AND THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES. THE SUBSCRIBER MAY NOT RESELL THE SERVICE TO ANY OTHER PARTY.
3.6 Indemnification of SpinDance. Subscriber will indemnify, defend and hold SpinDance, and its officers and agents harmless from and against any and all third party claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, penalties, fines, judgments, settlements, expenses (including attorneys' and accountants' fees and disbursements) and costs incurred by, borne by or asserted against SpinDance to the extent such claims in any way relate to, arise out of, or result from Subscriber's use of the Software or Services.
3.7 SpinDance Service Interuptions. SpinDance service utilizes cellular data networks. These networks may be unavailable or interrupted from time to time for a variety of reasons, such as environmental or topographic conditions or network maintenance and other things we can't control. SpinDance is not responsible for any interruptions of SpinDance service that occur beyond our control.
4.1 Term. This Agreement shall commence on the date of Subscriber's acceptance of this agreement and continue for an initial term of one year. Thereafter, this Agreement shall automatically renew for additional one (1) year billing cycle periods unless terminated by either party prior to the next billing cycle.
4.2 Termination by SpinDance. SpinDance may terminate this Agreement and/or terminate or suspend any or all of Subscriber's access to all or a portion of the Software and Service, immediately if Subscriber violates any provision of this Agreement.
4.3 Termination by Subscriber. Subscriber may terminate this Agreement at any time. SpinDance service will be terminated within 24 hours. Subscription fees are nonrefundable.
4.4 Effect of Termination. Upon termination of this Agreement, Subscriber will immediately: (a) cease any and all use of the Software and Service.
4.5 Survival. Obligations and rights in connection with this Agreement which by their nature would continue beyond the termination of this Agreement.
5.1 Assignment. Subscriber may not assign, sublicense or otherwise transfer its rights, duties, or obligations under this Agreement.
5.2 Waiver. Any waiver granted herein shall not be deemed effective unless in writing, executed by the party as to whom enforcement of the waiver is sought. A waiver by either party of any provision(s) hereof shall not be deemed a waiver as to any other provision hereof or of any subsequent breach by either party of the same or any other provision.
5.3 Governing Law and Venue. This Agreement shall be governed by and interpreted according to the laws of the State of Delaware, without regard to conflicts of law principles. Venue for any action, claim or proceeding pertaining to this Agreement shall be Delaware.
5.4 Severability. If any provision of this Agreement is prohibited or unenforceable by any applicable law, the provision shall be ineffective only to the extent and for the duration of the prohibition of unenforceability, without invalidating any of the remaining provisions.
5.5 Entire Agreement. This Agreement embodies the entire agreement and understanding between SpinDance and Subscriber with respect to the subject matter of this Agreement and supersedes all prior oral or written agreements and understandings relating to the subject matter of this Agreement. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement. No provision of this Agreement may be amended or modified except by a written document signed by duly authorized representatives of both parties.
BY USING THE SPINDANCE SOFTWARE AND SERVICE, I REPRESENT THAT I HAVE READ AND UNDERSTOOD THIS ENTIRE AGREEMENT, AND I AGREE TO ALL THE TERMS OF THIS AGREEMENT AS STATED ABOVE.