Thanks for using Wellspring Software Inc.’s (Wellspring) products and services (“Services”).
You indicate your agreement to these Terms by clicking or tapping on a button indicating your acceptance of these Terms, by executing a document that references them, or by using the Services.
If you will be using the Services on behalf of an organization, you agree to these Terms on behalf of that organization and you represent that you have the authority to do so. In such case, “you” and “your” will refer to that organization.
1.1. Fees for Services. You agree to pay to Wellspring any fees for each Service you purchase or use (including any overage fees), in accordance with the pricing and payment terms presented to you for that Service. Where applicable, you will be billed using the billing method you select through your Subscription page. Fees paid by you are non-refundable, except as provided in these Terms or when required by law.
1.2. Subscriptions. Some of our Services are billed on a subscription basis (we call these “Subscriptions”). This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly. Your Subscription will automatically renew at the end of each billing cycle unless you cancel your subscription through your Subscription page, or by contacting support. While we will be sad to see you go, you may cancel your Subscription at any time, in which case your Subscription will end immediately. You can see your next expected bill date on your Subscription page.
1.3. Taxes. Unless otherwise stated, you are responsible for any taxes (other than Wellspring’s income tax) or duties associated with the sale of the Services, including any related penalties or interest (collectively, “Taxes”). You will pay Wellspring for the Services without any reduction for Taxes. If Wellspring is obliged to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide Wellspring with a valid tax exemption certificate authorized by the appropriate taxing authority or other documentation providing evidence that no tax should be charged.
1.4. Price Changes. Wellspring may change the fees charged for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. Wellspring will provide you with reasonable prior written notice of any change in fees to give you an opportunity to cancel your Subscription before the change becomes effective.
1.5. Overdue Fees. Failure to pay overdue fees or subscription fees when due may result in the applicable Service being limited, suspended, or terminated (subject to applicable legal requirements), which may result in a loss of your data associated with that Service.
2.2. Confidentiality. Wellspring will treat your Content as confidential information and only use and disclose it in accordance with these Terms (including our privacy policies). However, your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of these Terms by Wellspring); (b) was lawfully known to Wellspring before receiving it from you; (c) is received by Wellspring from a third party without knowledge of breach of any obligation owed to you; or (d) was independently developed by Wellspring without reference to your Content. Wellspring may disclose your Content when required by law or legal process, but only after Wellspring, if permitted by law, uses commercially reasonable efforts to notify you to give you the opportunity to challenge the requirement to disclose.
2.3. Security. Wellspring will store and process your Content in a manner consistent with industry security standards. Wellspring has implemented appropriate technical, organizational, and administrative systems, policies, and procedures designed to help ensure the security, integrity, and confidentiality of your Content and to mitigate the risk of unauthorized access to or use of your Content.
3.1. You Retain Ownership of Your Content. You retain ownership of all of your intellectual property rights in your Content. Wellspring does not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.
3.2. Limited License to Your Content. You grant Wellspring a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit your Content, but only for the limited purposes of providing the Services to you and as otherwise permitted by Wellspring’s privacy policies. This license for such limited purposes continues even after you stop using our Services, with respect to aggregate and de-identified data derived from your Content and any residual backup copies of your Content made in the ordinary course of Wellspring’s business. This license also extends to any trusted third parties we work with to the extent necessary to provide the Services to you. If you provide Wellspring with feedback about the Services, we may use your feedback without any obligation to you.
3.3. Customer Lists. Wellspring may identify you (by name and logo) as a Wellspring customer on Wellspring’s website and on other promotional materials. Any goodwill arising from the use of your name and logo will inure to your benefit.
4.1. Wellspring IP. Neither these Terms nor your use of the Services grants you ownership in the Services or the content you access through the Services (other than your Content). These Terms do not grant you any right to use Wellspring’s trademarks or other brand elements.
5.1. User Content. The Services display content provided by others that is not owned by Wellspring. Such content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services. Wellspring is not responsible for any actions you take with respect to your Content, including sharing it publicly. Please do not use content from the Services unless you have first obtained the permission of its owner, or are otherwise authorized by law to do so.
5.2. Content Review. You acknowledge that, in order to ensure compliance with legal obligations, Wellspring may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law or these Terms. However, Wellspring otherwise has no obligation to monitor or review any content submitted to the Services.
5.3. Third Party Resources. Wellspring may publish links in its Services to internet websites maintained by third parties. Wellspring does not represent that it has reviewed such third party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with the Services are the property of their respective owners.
6.1. Keep Your Password Secure. If you have been issued an account by Wellspring in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not Wellspring, are responsible for any activity occurring in your account (other than activity that Wellspring is directly responsible for which is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify Wellspring immediately. Accounts may not be shared and may only be used by one individual per account.
6.2. Keep Your Details Accurate. Wellspring occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate. Accounts are controlled by the entity whose credit card is associated with the account.
6.3. Remember to Backup. You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, Wellspring will not be liable for any failure to store, or for loss or corruption of, your Content.
6.4. Account Inactivity. Wellspring may terminate your account and delete any content contained in it if there is no account activity for over 90 days.
6.5. Customer Success. Wellspring may review your use of the Services and your Content to help you to more effectively use the Services, including by providing reporting and usage insight.
7.1. Legal Status. If you are an individual, you may only use the Service if you have the power to form a contract with Wellspring. None of the Services are intended for use by individuals less than 13 years old. If you are under 13 years old or do not have the power to form a contract with Wellspring, you may not use the Services. We recommend that parents and guardians directly supervise any use of the Services by minors. If you are not an individual, you warrant that you are validly formed and existing under the laws of your jurisdiction of formation, that you have full power and authority to enter into these Terms, and that you have duly authorized your agent to bind you to these Terms. You represent and warrant that you will comply with all laws and regulations applicable to your use of the Services.
7.2. Embargoes. You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by United States or other applicable law from receiving the Services, or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, you are not permitted to purchase any paid Services from Wellspring. You will ensure that: (a) your end users do not use the Services in violation of any export restriction or embargo by the United States; and (b) you do not provide access to the Services to persons or entities on any of the foregoing lists.
8.1. Legal Compliance. You must use the Services in compliance with, and only as permitted by, applicable law.
8.2. Your Responsibilities. You are responsible for your conduct, Content, and communications with others while using the Services. You must comply with the following requirements when using the Services:
(a) You may not purchase, use, or access the Services for the purpose of building a competitive product or service or for any other competitive purposes.
(b) You may not misuse our Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions that we provide.
(c) You may not circumvent or attempt to circumvent any limitations that Wellspring imposes on your account (such as by signing up a company that we have closed for a Terms violation).
(d) Unless authorized by Wellspring in writing, you may not probe, scan, or test the vulnerability of any Wellspring system or network.
(e) Unless authorized by Wellspring in writing, you may not use any automated system or software to extract or scrape data from the websites or other interfaces through which we make our Services available.
(f) Unless permitted by applicable law, you may not deny others access to, or reverse engineer, the Services, or attempt to do so.
(g) You may not transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services.
(h) You may not engage in abusive or excessive usage of the Services, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users.
(i) You may not use the Services to infringe the intellectual property rights of others, or to commit an unlawful activity.
(j) Unless authorized by Wellspring in writing, you may not resell or lease the Services.
(k) If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless Wellspring has agreed with you otherwise. You may not use the Services in a way that would subject Wellspring to those industry-specific regulations without obtaining Wellspring’s prior written agreement. For example, you may not use the Services to collect, protect, or otherwise handle “protected health information” (as defined in 45 C.F.R. §160.103 under United States federal regulations) without entering into a separate business associate agreement with Wellspring that permits you to do so.
9.1. By You. If you terminate a Subscription in the middle of a billing cycle, you will not receive a refund for any period of time you did not use in that billing cycle unless you are terminating these Terms for any of the following reasons: (a) we have materially breached these Terms and failed to cure that breach within 30 days after you have so notified us in writing; or (b) a refund is required by law.
9.2. By Wellspring. Wellspring may terminate your Subscription at any time for any reason.
9.3. Further Measures. If Wellspring stops providing the Services to you because you repeatedly or egregiously breach these Terms, Wellspring may take measures to prevent the further use of the Services by you, including blocking your IP address.
10.1. Changes to Terms. Wellspring may change these Terms at any time for a variety of reasons, such as to reflect changes in applicable law or updates to Services, and to account for new Services or functionality. The most current version will always be posted on the Wellspring website. If an amendment is material, as determined in Wellspring’s sole discretion, Wellspring will notify you by email. Notice of amendments may also be posted to Wellspring’s blog or upon your login to your account. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require Wellspring to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not want to agree to any changes made to the terms for a Service, you should stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms.
10.2. Changes to Services. Wellspring constantly changes and improves the Services. Wellspring may add, alter, or remove functionality from a Service at any time without prior notice. Wellspring may also limit, suspend, or discontinue a Service at its discretion. If Wellspring discontinues a Service, we will give you reasonable advance notice to provide you with an opportunity to export a copy of your Content from that Service. Wellspring may remove content from the Services at any time in our sole discretion, although we will endeavor to notify you before we do that if it materially impacts you and if practicable under the circumstances.
11.1. Disclaimers. While it is in Wellspring’s interest to provide you with a great experience when using the Services (and we love to please our customers), there are certain things we do not promise about them. We try to keep our online Services up, but they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND Wellspring DOES NOT MAKE WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR ANY REPRESENTATIONS REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES.
11.2. Exclusion of Certain Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, Wellspring, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF Wellspring HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.3. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF Wellspring, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY YOU TO Wellspring FOR USE OF THE SERVICES AT ISSUE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) US$100.00.
11.4. Consumers. We acknowledge that the laws of certain jurisdictions provide legal rights to consumers that may not be overridden by contract or waived by those consumers. If you are such a consumer, nothing in these Terms limits any of those consumer rights.
11.5. Businesses. If you are a business, you will indemnify and hold harmless Wellspring and its affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim regarding or in connection with your or your end users’ use of the Services or breach of these Terms, to the extent that such liabilities, damages and costs were caused by you or your end users.
12.1. Who you are contracting with. Unless otherwise specified in relation to a particular Service, the Services are provided by, and you are contracting with, Wellspring.
12.2. Wellspring. For any Service provided by Wellspring, the following provisions will apply to any terms governing that Service:
• Contracting Entity. References to “Wellspring”, “we”, “us”, and “our” are references to Wellspring, located at 445 Sovereign Ct, Ballwin, MO 63011, USA.
• Governing Law. Those terms are governed by the laws of the State of Missouri (without regard to its conflict of laws provisions).
• Jurisdiction. Except if prohibited by applicable law, each party submits to the exclusive jurisdiction of the state courts located in St. Louis County, Missouri, and the federal courts located in the Eastern District of Missouri with respect to the subject matter of those terms.
13.1. Assignment. You may not assign these Terms without Wellspring’s prior written consent, which may be withheld in Wellspring’s sole discretion. Wellspring may assign these Terms at any time without notice to you.
13.2. Entire Agreement. These Terms constitute the entire agreement between you and Wellspring, and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void.
13.3. Independent Contractors. The relationship between you and Wellspring is that of independent contractors, and not legal partners, employees, or agents of each other.
13.4. Interpretation. The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.
13.5. No Waiver. A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.
13.6. Precedence. To the extent any conflict exists, the Additional Terms prevail over this TOU with respect to the Services to which the Additional Terms apply.
13.7. Severability. If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.
13.8. Third Party Beneficiaries. There are no third party beneficiaries to these Terms.
13.9. Survival. The following sections will survive the termination of these Terms: 1, 2, 3.2, 9, 11, 12, and 13.