Spotio Terms of Service
Updated: October 2018
IMPORTANT-READ THIS TERMS OF SERVICE AGREEMENT (THESE “TERMS”), WHICH INCORPORATE ANY APPLICABLE ORDER (AS DEFINED BELOW), CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE “ACCEPT” BUTTON OR OTHERWISE ACCEPTING THESE TERMS, CUSTOMER (“CUSTOMER”) AGREES TO FOLLOW AND BE BOUND BY THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF CUSTOMER, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THE TERMS AND CONDITIONS OF THESE TERMS AND, IN SUCH EVENT, “CUSTOMER” AS USED IN THESE TERMS WILL REFER TO CUSTOMER AND ALL AUTHORIZED USERS (DEFINED BELOW), IF YOU DO NOT HAVE SUCH AUTHORITY MAY NOT USE THE SERVICES.
The Spotio system provides a means to track and manage sales territories and the sales process, as well as the ability to make available to Authorized Users certain content, including but not limited to documents, files, snippets, URLs and links to other websites and content, comments, and other posts. Spotio and Customer agree to enter into these Terms for the provision of the services described in the Order (the “Subscription Services”) or the basic, free services available to mobile users (the “Free Services” and together with the Subscription Services, the “Services”). “Authorized Users” means those persons who are employees, agents or are otherwise acting at the Company’s direction who are permitted to use the Services in accordance with these Terms.
2. LICENSE GRANT AND RESTRICTIONS
Subject to these Terms and, with respect to the Subscription Services, as further set forth on the Order, Spotio hereby grants Customer for the term of these Terms a limited, nonexclusive, subscription-based, non-transferable license to (i) access and use the Subscription Services or the Free Services, as applicable, in accordance with help files, instruction manuals or other related materials regarding its use, and to (ii) view, upload, download and copy the data, information, materials, databases and the content resulting from Customer’s use of the Subscription Services or the Free Services, as applicable (the “Resultant Data”), in each case for Customer’s internal business purposes only. Customer has no right to sublicense the licensed rights granted in this section. Customer will not (i) allow use of the Services by anyone other than Customer or its authorized employees or contractors, (ii) use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or the Resultant Data or (iii) decompile, disassemble, benchmark, perform performance, feature, or function analysis, or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, algorithms, or file formats of the software accessed via the Services, except as expressly permitted herein. No licenses or rights are granted to Customer by implication or otherwise under any intellectual property rights owned or controlled by Spotio or its licensors, except for the licenses and rights expressly granted herein. All rights not expressly granted herein by Spotio to Customer are reserved by Spotio.
3. OWNERSHIP AND LICENSED CONTENT
Customer will remain the owner of, and Spotio does not claim ownership rights in any of, Customer’s data, text, information about Customer or its work, materials, usernames, graphics, images, photographs, profiles, audio, video, items, and links (“Licensed Content”). Customer acknowledges and agrees that Spotio, its licensors and third party data providers, as applicable, retain all ownership and rights, title and interest in and to the intellectual property and proprietary rights in or related to the Services and the Resultant Data (excluding the Licensed Content).
Customer hereby grants to Spotio for the term of these Terms a nonexclusive, worldwide, royalty-free, sublicensable (through multiple tiers) right to use, copy, modify and distribute Licensed Content, in any media now known or hereafter known, to the extent necessary for Spotio to provide the Services. The data collected and analyzed by Spotio may be used for Spotio’s internal business purposes, including to enhance and improve the Services and for other development, diagnostic and corrective purposes in connection with the Services and other company offerings, and Spotio may disclose such data solely in aggregated or other anonymized form in connection with its business. Customer agrees that Spotio may store, translate, or re-format the Licensed Content on the Services and display Licensed Content on the Services as required to provide the Services.
Licensed Content must be the original work of Customer or Customer must have adequate rights to display, upload and share the Licensed Content. Please note that Company will not sell or, except as necessary to provide the Services, otherwise distribute Licensed Content.
4. DELIVERY OF THE SERVICES
Spotio shall make the Subscription Services available to Customer as set forth on the Order.
If Customer receives the Subscription Services hereunder, Customer may contact Spotio for technical support Monday through Friday from 8:00 AM to 7:00 PM CST, and on Saturday from 10:00 AM to 2:00 PM CST, in each case by e-mailing firstname.lastname@example.org or through Spotio’s chat feature on the Spotio mobile or desktop application. Customer acknowledges and agrees that Spotio makes no representation, warranty or covenant as to the timing of its response to such technical support inquiries or reports.
Spotio may suspend Customer’s access or use of the Services if it reasonably determines that Customer is using or has used the Services in a way that, or has provided Licensed Content that, violates these Terms, the rights of a third party or applicable law. If Customer receives the Free Services hereunder, Spotio may suspend, limit or terminate Customer’s access to or use of such Free Services for any reason at any time without notice, including for Customer’s inactivity.
5. USER AGREEMENT, REPRESENTATIONS AND RESTRICTIONS
In order to access the Services, Customer will be required to register for a Spotio account (an “Account”). Customer agrees to: (a) provide true, accurate, current and complete information about Customer and Authorized Users when registering for an Account, including any payment method (“Payment Method”); (b) maintain and promptly update the Account to keep it true, accurate, current and complete; (c) review and make timely payments of the fees to be charged for use of the Subscription Services as set forth on the Order (the “Fees”); and (d) authorize Spotio or its third party service providers to charge Customer’s Payment Method for any and all Fees incurred by Customer for use of the Subscription Services as set forth in the Order. Customer is responsible for all reasonable costs incurred by Spotio in attempting to obtain payment of Fees, including any documented attorneys’ fees, collection agency fees, interest fees and court costs.
Customer represents and warrants to Spotio that Customer will: (a) maintain the security of its user identifications, passwords and other confidential information relating to the Account; (b) maintain the security, confidentiality and integrity of all messages and the content that Customer receives, transmits through or stores on the Services; (c) be responsible for all charges resulting from the use of the Account, including but not limited to, unauthorized use of the Account prior to Customer notifying Spotio in writing of such use and taking steps to prevent its further occurrence by changing Authorized Users’ passwords; (d) comply with these Terms; and (e) comply with all applicable U.S. and international laws, statutes, ordinances, rules, regulations, contracts and applicable licenses regarding Customer’s use of the Services.
Customer further represents, warrants and covenants that: (i) Customer has the power, and authority to enter into and perform its obligations under these Terms; (ii) all information provided to Spotio by Customer, including Payment Method information, is truthful, accurate and complete; (iii) Customer is authorized to pay any Fees incurred from use of the Subscription Services; and (iv) Customer has provided and will provide accurate and complete registration information.
Customer is not permitted, directly or indirectly, to: (x) distribute, display (except as otherwise set forth herein), rent, lease, transfer or otherwise transfer rights to, or in any way exploit, the Services, in whole or in part; or (y) remove any proprietary notices or labels on the Services.
6. TERM AND TERMINATION
These Terms commence on the date these Terms are accepted by Customer and continue (i) for the period set forth in an Order for the Subscription Services , unless otherwise terminated in accordance with this Section 6, or (ii) until terminated in accordance with this Section 6 for the Free Services. Either party, as applicable, will have the right, in addition, and without prejudice to any other rights or remedies, to terminate these Terms as follows:
By Customer (A) for the Subscription Services, upon written notice to Spotio (1) at least thirty (30) days prior to the end of the term for any annual subscription or (2) at least fifteen (15) days prior to the end of the current billing period for a monthly subscription; or (B) for the Free Services, upon deletion of Customer’s Account;
By either party for any material breach of these Terms, other than failure to make payments, that is not cured within 10 days of receipt by the party in default of a notice specifying the breach and requiring its cure; or
By either party, immediately on written notice, if (a) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy, (b) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within 60 days, or (c) the other party is adjudged bankrupt.
Spotio reserves all rights and remedies that it has by operation of law or otherwise to enjoin the unlawful or unauthorized use of the Services. Upon termination for any reason, (i) Customer shall immediately pay all Fees, if any, due and owing to Spotio, (ii) Spotio shall have no further obligation to provide access to the Services to Customer, and (iii) the licenses granted to Customer hereunder shall terminate. When these Terms are terminated and Customer’s Account is canceled, Customer immediately loses access to its Account and all of Customer’s Licensed Content is immediately deleted and no longer available. If Customer provides a written request to Spotio at least thirty (30) days prior to the expiration or termination of these Terms, Spotio shall provide Customer with copies of the Licensed Content then in Spotio’s possession or control. The following sections will survive termination of these Terms: 3, 5, 9-15, 17, 18, 20 and 21.
7. PAYMENT, PRICING AND PROMOTIONS
In consideration for the license granted to Customer hereunder, Customer agrees to pay Spotio the Fees for the Subscription Services based on the program selected at the time of purchase on the site (“Order”). All Fees are subscription based and are due and payable at the beginning of each subscription period designated on an Order. Any amount past due will be subject to a financing fee at a rate equal to the lower of 1.5% per month or the highest rate allowed by law. At least thirty (30) days prior to the end of the then-current subscription period, the parties will negotiate in good faith the Fees for any renewal period as set forth on any applicable Order; provided, that in no event will the Fees for the renewal period increase by more than 10% over the Fees from the then-current subscription period. Spotio may not otherwise change the Fees for a given subscription period. For any Fees or other amounts due and owing to Spotio by Customer which have not been paid in full when due (excluding any amounts which are disputed in good faith by Customer in writing prior to the date such amounts were due to be paid), Spotio reserves the right to suspend Customer’s access to the Subscription Services ten (10) days after sending Customer written notice thereof and may charge a reactivation fee to reinstate the Subscription Services.
All Fees are non-refundable. If Customer elects to terminate these Terms and its Account, it will not relieve Customer of its payment obligations hereunder.
Customer is responsible for all applicable federal, state, municipal, or other taxes, duties, fees, or withholding currently or subsequently imposed on Customer’s use of the Services and the payment of the Fees to Spotio, other than taxes assessed against Spotio’s income, property and employees. If Spotio is required to pay any such tax, duty, fee, or charge, or to withhold any amount from monies due to Spotio from Customer pursuant to these Terms, Customer will promptly reimburse Spotio any such amounts. All transactions will be executed using a third party payment processor (“Payment Processor”), and may be subject to a service charge. Customer will be asked to provide customary billing information such as name, billing address and payment information. Customer hereby authorizes Spotio to debit, through a Payment Processor, Customer’s payment card or user account in the amount of the Fees.
8. THIRD PARTY INTERACTIONS
During use of the Services, Customer may enter into correspondence with, purchase goods and services from, or participate in promotions of third party service providers, advertisers or sponsors showing their goods and services through the Services. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between Customer and the applicable third-party. Spotio and its licensors will have no liability, obligation or responsibility for any such correspondence, purchase, transaction or promotion between Customer and any such third party. Spotio does not endorse any sites on the Internet that are linked through the Services or Customer’s Licensed Content, and in no event will Spotio or its licensors be responsible for any content, products, services or other materials on or available from such sites or third party providers. Certain third party providers of goods and services may require Customer’s agreement to additional or different terms and conditions prior to Customer’s use of or access to such goods or services, and Spotio disclaims any and all responsibility or liability arising from such agreements between Customer and the third party providers.
Spotio will indemnify, defend, and hold Customer, Customer’s subsidiaries, affiliates, officers, directors, Authorized Users, attorneys and agents harmless from and against any and all claims, actions, costs, damages, losses, liabilities, expenses (including reasonable and documented attorneys’ fees and costs) or demands alleging that the Services, or any intellectual property incorporated therein, infringe, violate or misappropriate any intellectual property rights of a third party. Spotio’s obligations under this Section 9 do not apply to the extent any such claims based, in whole or in part, on any use of the Licensed Content or other Customer data or on any use of the Services or the Resultant Data other than as set forth herein or any modification of the Services not performed by or on behalf of Spotio. Spotio’s obligations hereunder will not apply to any alleged infringement, misappropriation or other violation occurring after Spotio has received notice of a lawsuit or proceeding or other communication alleging any of the foregoing, unless Spotio has given written permission for continued use of the Services. THE REMEDIES SET FORTH IN THIS SECTION CONSTITUTE SPOTIO’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR INFRINGEMENT, MISAPPROPRIATION OR OTHER VIOLATION OF THIRD PARTY RIGHTS.
Customer agrees that Customer will defend, indemnify and hold Spotio, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, users, employees, attorneys and agents harmless from and against any and all claims, actions, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with Customer’s violation or breach of these Terms or Customer’s violation of any rights of any third party or of applicable law.
With respect to any claims, actions, costs, damages, losses, liabilities, expenses or demands as to which the indemnifying party has acknowledged its obligation or is obligated to provide indemnification under these Terms, the indemnifying party will have the sole right to hire legal counsel (subject to the reasonable approval of the indemnified party) and control the defense of (and/or to settle or otherwise dispose of) the dispute on such terms as the indemnifying party in its judgment deems appropriate; provided, however, that no settlement or consent to any judgment, award or decree may be made that will (i) not unconditionally release the indemnified party of all liability, (ii) affect the rights of the indemnified party, (iii) require any payment by the indemnified party, or (iv) require the indemnified party to make an admission of fault, in each case, without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed.
10. WARRANT AND DISCLAIMER
Spotio hereby represents and warrants to Customer as follows: (a) it has full corporate power and authority to enter into these Terms and to carry out the provisions hereof; (b) it is duly authorized to execute and deliver these Terms, to grant the licenses granted by it hereunder, and to perform its obligations hereunder; (c) these Terms are legal and valid obligations binding upon it and enforceable according to their terms; and (d) the execution, delivery, and performance of these Terms by it does not conflict with any agreement to which it is a party or by which it may be bound.
EXCEPT AS OTHERWISE SET FORTH HEREIN, SPOTIO DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, APPLICATION, SYSTEM OR DATA, (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY LICENSED CONTENT, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED, OR (F) THE SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, TERMS AND CONDITIONS, EXPRESS OR IMPLIED. THE SERVICES ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS WITH ALL FAULTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SPOTIO. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ENTIRE RISK ARISING OUT OF CUSTOMER’S USE OF THE SERVICES, AND ANY THIRD PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH CUSTOMER, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
11. INTERNET DELAYS
THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CUSTOMER ACKNOWLEDGES AND AGREES THAT SPOTIO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
12. LIMITATION OF LIABILITY
EXCEPT (A) IN THE EVENT FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, (B) TO THE EXTENT ARISING FROM A BREACH OF CONFIDENTIALITY OR (C) PURSUANT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER: (I) NEITHER PARTY (OR, WITH RESPECT TO SPOTIO OR SPOTIO’S LICENSORS) WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). WHICH MAY ARISE FROM THE USE, OPERATION OR IMPLEMENTATION OF THE SERVICES; (II) SPOTIO AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY CUSTOMER AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN CUSTOMER AND ANY THIRD PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SITE OR IS REFERRED BY THE SERVICES; AND (III) EACH PARTY AGREES THAT THE OTHER PARTY’S LIABILITY FOR DAMAGES IN CONNECTION WITH THESE TERMS WILL NOT EXCEED TWO TIMES THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SPOTIO FOR THE SERVICES PROVIDED UNDER THESE TERMS IN THE 12-MONTH PERIOD PRECEDING THE CLAIM.
13. CONFIDENTIALITY AND DISCLOSURE
Except as otherwise permitted hereunder, each party hereto (“Receiving Party”) will retain in confidence these Terms and all other non-public information, technology, materials and know-how disclosed to it by the other party (“Disclosing Party”) or acquired by the Receiving Party pursuant to or in connection with these Terns that is either designated as proprietary or confidential or, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary or confidential (“Confidential Information”); provided that the Receiving Party may disclose these Terms to its immediate legal and financial consultants in the ordinary course of its business. The Receiving Party will not use any Confidential Information for any purpose other than to carry out the activities contemplated by these Terms. For the avoidance of doubt, any of the Licensed Content that constitutes Confidential Information shall be the Confidential Information of Customer and any of the Resultant Data that constitutes Confidential Information, and Confidential Information relating to the Services, shall be the Confidential Information of Spotio. The Receiving Party will protect the confidentiality of the Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information, but in no event less than reasonable care in protecting Confidential Information. Receiving Party will make Confidential Information available on a “need to know” basis to its employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than as set forth herein. The Receiving Party will also promptly notify the Disclosing Party in writing in the event that the Receiving Party learns of any unauthorized use or disclosure of any Confidential Information, and will cooperate with the Disclosing Party in good faith to remedy the occurrence to the extent reasonably possible. The restrictions set forth in this paragraph will not apply to any information that: (i) was known by the Receiving Party without obligation of confidentiality prior to disclosure thereof by the Disclosing Party, as evidenced in writing; (ii) was in or entered the public domain through no fault of the Receiving Party; (iii) is disclosed to the Receiving Party by a third party legally entitled to make the disclosure without violation of any obligation of confidentiality; (iv) is required to be disclosed by applicable laws or regulations (but in that event, only to the extent required to be disclosed, and provided that the Disclosing Party is given the opportunity to review and redact the Confidential Information prior to disclosure); or (v) is independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party. Upon request, the Receiving Party will return to the Disclosing Party all materials and any copies thereof, in any medium that contain or reveal all or any part of any Confidential Information. The Receiving Party acknowledges that breach of this provision will result in irreparable harm to the Disclosing Party, for which money damages would be an insufficient remedy, and therefore the Disclosing Party will be entitled to injunctive relief to enforce the provisions in this Section. Except as set forth above or elsewhere in these Terms, Spotio may not disclose the fact that Customer is a client of Spotio orally or in writing to third parties, or use Customer’s name or logo in any document for any purpose, including without limitation for marketing or publicity, without Customer’s prior written consent.
All notices to Customer will be given electronically to the email address provided by Customer and will be deemed fully given and received when delivered by electronic transmission to the electronic mail address or other proper electronic destination provided to Spotio. Except where provided otherwise, notices hereunder shall be in writing and shall be deemed to have been fully given and received (i) when delivered in writing personally; (ii) when sent by confirmed telex or facsimile, (iii) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one day after deposit with a commercial overnight carrier, with written verification of such receipt. All communications will be sent to the party’s address as set forth herein, or at such address as the parties may later specify in writing for such purposes.
15. ELECTRONIC COMMUNICATIONS
16. DISCLOSURE AND INJUNCTIVE RELIEF
Customer acknowledges and agrees that any violation by Customer of these Terms will constitute an unlawful and unfair business practice, and will cause irreparable harm to Spotio, for which monetary damages would be inadequate, and Customer consents to Spotio obtaining any injunctive or equitable relief that Spotio deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies Spotio may have at law or in equity.
17. GOVERNING LAW AND JURISDICTION
These Terms and any dispute arising out of or related to these Terms or the Services will be governed in all respects by the laws of the State of Texas, without regard to conflict of law provisions. Customer agrees that any claim or dispute Customer may have against Spotio must be resolved exclusively by a state or federal court located in Travis County, Texas. Customer agrees to submit to the personal jurisdiction of the courts located within Travis County, Texas for the purpose of litigating all such claims or disputes.
Customer may not assign these Terms, in whole or in part, without the prior written consent of Spotio, which consent will not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, Customer may assign these Terms in their entirety in connection with a merger, acquisition, sale of all or substantially all of that party’s assets or other business combination. For the avoidance of doubt, there shall be no restrictions on Spotio’s right to freely assign these Terms. Subject to the above restrictions on assignment, these Terms will inure to the benefit of and bind the successors and assigns of the parties.
20. ENTIRE AGREEMENT
21. NO WAIVER
Except as expressly and specifically set forth in this these Terms, no representations, statements, consents, waivers, or other acts or omissions by Spotio will be deemed a modification of these Terms nor be legally binding, unless documented in physical writing, hand signed by Customer and a duly appointed officer of Spotio.
22. FORCE MAJEURE
Spotio will not be liable for any delay or failure to perform resulting from causes outside of its reasonable control, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Spotio’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.