YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS EULA AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE “ACCEPT” BUTTON OR ACCESSING OR USING THE SERVICES, YOU EXPRESSLY CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA.
Unless you are an authorized user of our Client under a separate Master Services Agreement or other agreement with us, your use of the SPARK software products (provided on a software-as-a-service (“SaaS”) basis and related services (collectively our “Services”) hosted and maintained by Ignify Technologies, Inc. (“SPARK”, “we”, “our”, or “us”) and any information including any links to any third party services provided through our Services are governed by this End User License Agreement (“EULA”). You, as a user of our Services subject to this EULA, will be hereinafter referred to as (“User”, “you”, or “your”). For purposes of this EULA, User includes you and any organization or legal entity for which you are acquiring or accessing the Services (unless subject to a direct agreement with us as our Client).
We may modify this EULA at any time, and such modifications shall be effective immediately upon posting. Your continued use of our Services will mean you accept the modified EULA.
Services Agreement. SPARK provides its customers (“Client”) and their authorized users with access and use rights to SPARK’s proprietary software platform and applications on a SaaS basis for the Services as subscribed either in a direct contract or order form with SPARK or indirectly through an authorized reseller. Prospective clients may also be granted access to the Services on a trial basis and such limited access is also subject to this EULA. Authorized users who are employees of a Client are governed by a Master Services Agreement with Client. If you are a user of an authorized reseller’s customer, your use of the Services is subject to this EULA. If our Services are provided to you pursuant to a Master Services Agreement with our Client, the terms of our Services will be as specified in such agreement and those terms will supersede any conflicting provisions of this EULA.
NOTE: Our Services are NOT financial services, even if Client is a financial institution and/or User is employed by a financial institution; SPARK is NOT a financial institution.
Ownership. We are and shall remain the sole owner and/or authorized licensor of the Services and we retain all rights, title and interest in the Services and our Confidential Information, including all related intellectual property (i.e., copyright, trademark, trade secret, patent, knowhow and other proprietary rights). The Services is provided on an “AS IS” and “AS AVAILABLE” basis. The Services and any and all derivatives shall be and remain our property. Such property includes all information such as the “look and feel” of the Services, the data files, graphics, text, logos, images, sounds, music, video or audio files part of the Services. You shall have no rights or interests therein except as set forth in this EULA. You agree to notify us immediately in writing of any claim made against you regarding the Services and to cooperate as reasonably necessary, at our expense, in the defense and settlement of such claim. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Services.
“Confidential Information” means any and all information or data which is disclosed or otherwise made available by the Disclosing Party to the Receiving Party in any tangible or oral form, including, but not limited to, development and/or financial plans, ideas, concepts, drawings, designs, discoveries, improvements, specifications, formulas, trade secrets, prototypes, processes, notes, memoranda and reports concerning SPARK’s past, present or future research, technology, know-how, computer programs, products, sales and marketing plans, financial statements and business plans, product plans and/or costs, deliverables, the Services, documentation and any other information, oral or written, that is designated as confidential or proprietary or should reasonably be considered confidential or proprietary. Confidential Information shall also include any business terms between SPARK and User.
Confidentiality Obligation. Each of SPARK and User, is a “Receiving Party” when receiving Confidential Information of the other party or a “Disclosing Party” when disclosing Confidential Information. The Receiving Party shall keep all Confidential Information confidential and shall not use or disclose Confidential Information except as permitted under this EULA or as otherwise necessary to fulfill its obligations under this EULA. The Receiving Party shall limit disclosure to those employees, contractors, agents, or consultants who have a need to know and shall not disclose or use Confidential Information of the Receiving Party for any purpose outside the scope of this EULA, except with the Disclosing Party’s prior written consent. The Receiving Party shall inform all of its employees, contractors, agents and consultants receiving or otherwise obtaining access to the Disclosing Party’s Confidential Information of their obligations under this EULA and such contractors and consultants must agree in writing to be bound by confidentiality obligations as least as restrictive as those set forth in this EULA, either by means of an agreement directly with the Disclosing Party or pursuant to an agreement with the Receiving Party. The Receiving Party shall use the same degree of care it uses to protect its own proprietary information (but in no event less than a reasonable degree of care) to prevent the unauthorized use or disclosure of Confidential Information. Except as otherwise expressly provided, the Receiving Party may not “reverse engineer,” make derivatives or adaptations, duplicate or copy in any fashion any of the Disclosing Party’s Confidential Information, in whole or in part, without the prior written consent of the Disclosing Party. The Receiving Party shall promptly notify the Disclosing Party of any use or disclosure of Confidential Information not permitted by this EULA of which it becomes aware.
Exceptions. Confidential Information shall not include, and the Receiving Party shall have no obligation to preserve the confidentiality of, any information which (i) was previously known to the Receiving Party free of any confidentiality obligation and not through an unauthorized disclosure; (ii) becomes publicly available by any means other than unauthorized disclosure; or (iii) is independently developed by the Receiving Party without access to or reliance on any of the Disclosing Party’s Confidential Information. The Receiving Party shall bear the burden of proof for relying on any of the foregoing exceptions of which it becomes aware.
Compelled Disclosure. Notwithstanding anything to the contrary, in the event that the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information pursuant to a subpoena, order, process or other requirement of a judicial or other governmental agency, the Receiving Party may disclose such Confidential Information provided that the Receiving Party (i) notifies the Disclosing Party, to the extent permissible, as soon as practicable prior to making such legally compelled disclosure, (ii) provides any reasonably requested assistance to the Disclosing Party in obtaining a protective order, and (iii) only discloses that portion of the Disclosing Party’s Confidential Information that it is legally compelled or otherwise required to disclose.
Enforcement. It is recognized that damages in the event of a breach or threatened breach of the covenants set forth in this confidentiality obligation will be difficult, if not impossible, to ascertain. It is therefore agreed that the Disclosing Party, in addition to, and without limiting, any other remedy or right that it might have, shall have the right to seek an injunction against the Receiving Party issued by a court of competent jurisdiction, enjoining the Receiving Party from violating its confidentiality obligations. Each party hereby consents to the issuance of any preliminary or permanent injunction without bond. Notwithstanding anything to the contrary, it shall not be a breach of this EULA for a party to disclose the existence or the terms of this EULA or any order form in order to enforce the terms hereof or thereof.
USER RIGHTS; LIMITS
User Content. We acknowledge that User is the owner of such logos and/or marks and agrees to include any reasonable mark notice specified by User in writing. We further agree that its use of any such logos and/or marks shall inure to the benefit of User. “User Content” means any electronic data, information or material provided, made available, or submitted by User to SPARK through the Services, including, without limitation, information required for User to fully utilize the Services (e.g., social security numbers, tax identification numbers, income tax returns, personal and business credit reports, and bank account numbers and balances). SPARK acknowledges that User Content may include personally identifiable information of the User and that all User Content is User’s Confidential Information. User Content shall not include any SPARK Confidential Information, the Services, or SPARK’s data or information from the Services or documentation.
User Account. You are responsible for all access and use of the Services through any User account; user accounts are role based and may only be used as necessary to use the Services. You may not have more than one User account and you may not share your User account credentials with anyone else. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Content; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify us promptly of any such unauthorized use of which you become aware; and (iii) comply with all applicable local, state, federal, and foreign laws in using the Services. You are solely liable for the security, confidentiality and integrity of your User account and your User credentials; and you have sole liability for any use of the same. You shall take all reasonable steps to ensure that no unauthorized person shall have access to your Use accounts or passwords and shall immediately notify SPARK of any unauthorized access or use of which you become aware.
Third Party Software. You shall use commercially reasonable efforts to ensure that no third party software used in conjunction with the Services uses open source code that would bind SPARK to any copyleft unbounded license requirements requiring us to release any our software or technology under terms similar to the GNU GPL You further acknowledge and agree that any issues, fixes, corrections or updates required to any modifications or use of the Services by you which are not in compliance with this EULA are your sole liability and shall not accrue against any uptime commitment.
Use Rights. This EULA applies for the following license types:
Trial: If, as part of the ordering process, the Services are provided on a trial basis, SPARK grants you a limited, non-exclusive, non-transferable, non-sublicensable restricted evaluation right to access and use the Services (in a test environment) solely for your internal business purposes, on a single device owned or otherwise controlled by you, for the period of time specified by SPARK, or, if not specified, a thirty (30) day time period (“Trial Period”) in accordance with this EULA and the Services documentation (the “Trial License”). This Trial License is solely for evaluating whether you desire to acquire the Services and to pay the associated subscription fees. This Trial License grant is NOT a sale of the Services or any copy of it. Other than the express rights granted under this EULA, we retain and reserve all other rights to the Services. Services include the object code of the software and the documentation (i.e., user manuals and registration files). You may access the Services from a single device under the Trial License. Your access to the Services is provided on an AS IS and AS AVAILABLE basis. You acknowledge and agree that the Services are provided by us and not any third party and that we are responsible for the Services. SPARK, its affiliates and resellers, and licensors disclaim any and all warranties (including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement) and have no liability whatsoever resulting from your use of the Services under the Trial License. SPARK may terminate for its convenience a Trial License upon notice to you. On the earlier of when SPARK terminates the Trial License or when the Trial Period ends, your right to use the Services and the Trial License automatically expires. If you want to continue your use of the Services beyond the Trial Period, you may acquire a Services subscription right from SPARK for the Services upon payment of the subscription fees and subject to either a Client Master Services Agreement or this EULA and the Services documentation.
Subscription: If the Services are ordered on a subscription basis for us to host and maintain during the Subscription Period, in consideration of the Services Subscription Fees paid to us, SPARK grants you a limited, non-exclusive, non-transferrable, non-sublicensable restricted right to access and use the Services solely for your internal business purposes for the number of Subscriptions purchased during the Subscription Period, in accordance with this EULA and the Services documentation. This Subscription-based license (the “Subscription”) grant is NOT a sale of the Services or any copy of it. Other than the express rights granted under this EULA, we retain and reserve all other rights to the Services. Services include the object code version of the software we host and provide on a Subscription basis and the related documentation (i.e., user manuals and registration files). Your access to the Services is provided on an AS IS and AS AVAILABLE basis, subject to standard maintenance and support provided as part of the Services. You acknowledge and agree that the Services are provided by us and not any third party and that we are responsible for the Services. Standard maintenance and support of the Services is included as part of the Services.
Third Party Software. During use of the Services, User may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors offering their goods and/or services which are separate and apart from the Services, including any third-party goods, services or software provided to User by an authorized reseller. Any such third-party goods, services or software and obligations thereto are solely between User and the applicable third-party (including an authorized reseller). SPARK and its licensors / suppliers shall have no liability, obligation or responsibility for any such third-party goods, services or software, even if User connects to such third party via a link through the Services.
Open Source. The Services may also include open-source software components licensed under open-source license agreements. The open-source software components included with the Services are referred to in the remainder of this section as the “Open-Source Software”. All Open-Source Software contains the original copyright notices and license information provided by the copyright owners. We hereby grant you a sublicense to use the Open-Source Software with the same rights and subject to the same restrictions that apply to us under the royalty-free/open-source license(s). The Open-Source Software is provided at no additional charge. We will not use any Open-Source Software if doing so would interfere with your use of the Services or result in a known violation of the intellectual property rights of any third party. We maintain a current record of all Open-Source Software and applicable license agreements.
Restrictions. Except as otherwise permitted under this EULA regarding your use of the Services, you shall not (and shall not assist any third party to):
- Send any unsolicited communication (i.e., SPAM) to any person;
- Harvest, collect, gather or assemble information or data regarding other users of the Services without their consent;
- Transmit through or post on the Service unlawful, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material, or that violate any privacy rights or regulations, or material that may be harmful to minors;
- Transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs, including without limitation any time bomb, virus, software lock, drop-dead device, malicious logic, worm, Trojan horse, or trap door which is designed to delete, disable, deactivate, interfere with or otherwise harm the Services;
- Knowingly interfere with or disrupt the integrity or performance of the Services or attempt to gain unauthorized access to the Services, computer systems or networks related to the Services;
- Decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or derive any source code (or underlying ideas, algorithms, structure or organization) from the Services by any means whatsoever;
- Distribute, disclose or allow use of any of the Services in any format through any timesharing device, service bureau, network or by any other means, to or by any third party;
- Sublicense, rent, lease, use, permit use of, modify, create derivatives of or make available any part of the Services or documentation except as expressly permitted in this Agreement
- Violate the use right provided pursuant to this EULA;
- Remove, obscure, or alter any copyright, trademark or ownership notices from the Services or documentation;
- Provide a third party with the results of any functional evaluation or benchmarking or performance tests related to the Services;
- Create Internet “links” to or from the Services; or
- Use the Services to evaluate applications for accounts intended to be used primarily for personal, family or household purpose or to identify the risk of consumer accounts (provided that this is not intended to include sole proprietorships).
Access Limitations. You shall be solely responsible for providing, maintaining and ensuring compatibility with the Services access requirements, all hardware, software, electrical or other physical requirements for your use of the Services, including without limitation, telecommunications and internet service provider access, connections, links, web browsers or other equipment, programs and services required to access the internet or to otherwise use the Services. You acknowledge and agree that from time to time the Services may be inaccessible for access or inoperable for any reason, including without limitation: (i) equipment malfunctions, (ii) periodic maintenance or repairs; or (iii) other causes beyond our control. Additionally, because the Services may be accessed through the internet, you may have connection issues due solely to your own internet or telecommunications services provider or other technological access requirements. We are not responsible for any third-party access requirements (e.g. your ISP), provided that we remain liable for the hosted environment we manage for our Services.
Services Upgrades / Support. If you subscribe to our Services on a SaaS basis, you have the right to automatic updates, upgrades and support provided for such subscriptions. Upon your payment of the applicable fees, we will provide support and maintenance of the Services in accordance with our support terms.
Fees. You shall be responsible for the payment of fees, subscription or otherwise, as specified in an order form with us or if you acquire access through an authorized reseller by payment of the fees specified in your agreement with such authorized reseller. Fees are due for the entire Subscription Period unless you have the right to terminate your subscription for cause. You are solely responsible for any applicable federal, state, local and city or any foreign taxes, levies, value added tax or duties of any nature (collectively “taxes”), except for any taxes based on our net income, unless you have provided or (or our authorized reseller) with a tax-exempt form which is acceptable by the applicable taxing authority.
Services. SPARK provides the Services in conformance to the documentation (i.e., electronic or physical technical documentation, manuals and user guides generally made available by SPARK that describe the functionality of the Services). We use commercially reasonable efforts to ensure that the Services comply with applicable laws and will either correct to comply or remove / disable any part of the Services if we reasonably determine that the same does not comply with applicable laws. We are only obligated to provide the Services to you for the duration of the Subscription Period, Trial Period or as otherwise specified either in your order form entered into directly with us or your rights under an authorized reseller’s agreement. In the event that you violated your obligations under this EULA and fail to cure the same within thirty (30) days’ notice (if curable) or immediately (if not curable), we reserve the right to either suspend or terminate your rights to access and use the Services. In the event of any termination of the Services, the Receiving Party shall immediately return all Confidential Information (including any copies thereof) or certify the destruction as permitted or requested by the Disclosing Party. Upon termination of User’s use rights to the Services, User shall immediately stop all access and use of the Services and SPARK may terminate the access rights of the User account.
Support and Hosting. During the applicable Subscription Period we shall directly or indirectly provide telephonic or online standard support and maintenance for the Services at no additional charge. You agree that if you acquired the Services through an authorized reseller, only such authorized reseller’s designated support personnel shall contact us for support or maintenance. If you elect to use third party products in conjunction with our Services, you are solely responsible for (i) purchasing support services for any such third party products, and (ii) licensing and/or purchasing additional third party products as necessary to continue accessing and using any new releases, functionality, updates, upgrades and modifications of or to the Services. We do not support you third party products.
SPARK shall use commercially reasonable efforts to make the Service available 24/7/365 on a 99% uptime basis during the Subscription Period and as measured on a monthly basis. In any event, we will meet a 97% uptime basis (as measured on a monthly basis) and failure to meet a 97% uptime basis for any two months in any given six-month period shall be considered a material breach. This uptime commitment does not include: (i) planned outages, which we shall use reasonable efforts to schedule outside of normal business hours and to provide advance electronic notice to you through the Services or otherwise; (ii) emergency maintenance; (iii) unavailability resulting from any actions or inactions by any third party and/or resulting from any or your third party products (not including third party equipment within our direct control) or any web service interface; and (iv) any Force Majeure events described below. SPARK shall have no liability due to unavailability of the Service from these excluded events. “Force Majeure” shall mean that SPARK is not responsible for delays or failures of performance resulting from acts beyond its reasonable control. Such acts shall include, but are not limited to, acts of God, strikes, public internet and private internet connection failures, lockouts, riots, acts of war, acts of terror, epidemics, government regulations imposed after the Effective Date, fire, communication line failures, server failures caused by third party acts or omissions, power failures, earthquakes and other disasters. In such an event, SPARK shall give written notice to you through our website and/or the Services and shall do everything reasonably possible to resume performance.
Use of the Service. SPARK shall: (i) in addition to its confidentiality obligations hereunder, not use, edit or disclose User Content other than as necessary to provide the Services; (ii) use commercially reasonable efforts to maintain the security and integrity of the Services, including compliance with our security policy(ies); (iii) use commercially reasonable efforts to ensure that the Services perform in material accordance with the documentation; (iv) work diligently to resolve any errors or issues with the Services that are reported to the support services team; and (v) use commercially reasonable efforts to make the Services available. Notwithstanding the foregoing, we shall have no liability for any functional warranty, uptime commitment or down time associated with any User-maintained elements or any third-party products, including but not limited to data modeling and data quality.
INDEMNIFICATION AND ASSUMPTION OF RISK
Indemnification by SPARK. We shall indemnify, defend and hold User harmless from and against any liability, loss, claim, action, demand and/or expense (including, but not limited to, reasonable attorneys’ fees) (collectively “Claims”) to the extent arising out of a third party’s Claim that the Services infringe such third party’s valid United States patent, copyright, trade secret, trademark or other intellectual property rights; provided that User (i) promptly notifies SPARK in writing of any Claim(s) of which it becomes aware; (ii) permits SPARK sole control to defend, compromise or settle Claim(s); and (iii) provides reasonable information, assistance and authority at SPARK’s expense to enable SPARK to defend Claim(s). Subject to the foregoing, User may otherwise participate in the defense or settlement of any Claim(s) at its own expense. If the Services are held or are reasonably believed by SPARK to infringe a third party’s valid United States patent, copyright, trade secret, trademark or other intellectual property rights, SPARK may, in its sole discretion, (A) modify the Services so that they are non-infringing, (B) replace the infringing portion of the Services with a non-infringing substitute of similar functionality, (C) obtain a license for User to continue to use the Services, and/or (D) terminate the applicable order form upon thirty (30) days’ notice and provide User a prorated refund of any prepaid fees paid to SPARK based on the remaining Subscription Period for which such fees apply. This SPARK indemnification obligation shall not apply to the extent the applicable Claim arises out of a third-party product, User’s breach of this EULA, a modification of the Services by anyone not expressly authorized by SPARK, or use of the Services with any other hardware or software not provided by or through SPARK. This indemnification obligation states User’s sole and exclusive remedy and SPARK’s sole liability for any third-party infringement Claim.
Indemnification by User. To the fullest extent permitted by law, User shall indemnify, defend and hold SPARK, its employees, members, officers, trustees, suppliers, agents, contractors, suppliers, affiliates, representatives, successors and assigns harmless from and against any Claims arising out of or related to (i) User’s breach of the terms of this EULA, (ii) any disputes between or among User and any employees, contractors or agents and assigns of User, and/or (iii) claims that any User Content or User’s use of the Services in conjunction with any of User’s or third party’s hardware, software or products violates any federal or state laws, rules or regulations, or in any way violates or infringes on any patent, copyright, trademark, trade secret or any proprietary or other right of a third party, including, but not limited to, any third party agreement binding User regarding such hardware, software, content or products. SPARK shall (A) promptly notify User in writing of any Claim(s) of which it becomes aware, (B) permit User sole control to defend, compromise or settle Claim(s), provided User may not settle any Claim(s) without the consent of SPARK where the settlement involves a remedy other than the payment of money, and (C) provide reasonable information, assistance and authority at User’s expense to enable User to defend Claim(s). SPARK may participate in the defense or settlement of any Claim(s) at its own expense.
Assumption of Risk. User understands the risks associated with the access to and use of the Services. User acknowledges that User is using the Services at User’s own risk and User is solely responsible for verifying the Services suitability for User’s needs.
LIMITS ON OUR OBLIGATIONS
Limited Warranty. We represent and warrant that we have all rights, title and interests necessary to provide our Services. Under a SaaS subscription, we also warrant that the Services will materially conform to the functionality specified in the documentation. Any breach of warranty claims should be directed to our attention as specified in the Contact Us page of our website or as noted below. Such non-conformance, if confirmed, will be corrected in the automatic updates, bug-fixes and upgrades provides as part of your subscription.
In the event that we agree to refund the purchase price for a defective Services upon your certification the Services, documentation and all copies have been destroyed, such refund will be your sole remedy for the breach of this limited warranty. In the event that you have separately acquired support and maintenance from us, we will provide you with support for the Services in keeping with our Support Terms.
Disclaimers. THE SERVICES AND ANY INFORMATION (INCLUDING DOCUMENTATION) RELATED TO OR PROVIDED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SPARK DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT WITH REGARD TO THE SERVICES OR WITH RESPECT TO ANY INFORMATION RELATED TO OR PROVIDED THROUGH THE SERVICES. WE DO NOT WARRANT OR REPRESENT THAT THE SERVICES ARE ACCURATE, ERROR-FREE OR RELIABLE. WE ARE NOT RESPONSIBLE FOR COSTS OR ANY DAMAGES THAT RESULT FROM YOUR RELIANCE ON OR USE OF THE SERVICES. Some jurisdictions do not allow the exclusion of implied warranties, so this exclusion may not apply.
Third-Party Provider Disclaimer. You expressly understand and agree that you have no contractual relationship with any of our Third-Party Providers and that you are not a third-party beneficiary of any agreement between us and our Third-Party Providers. YOU ACKNOWLEDGE AND AGREE THAT ANY THIRD-PARTY PROVIDERS HAVE NO OBLIGATION FOR ANY WARRANTY, EXPRESS OR IMPLIED OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE PRODUCT AND/OR INFORMATION PROVIDED UNDER THIS EULA.
ANY AND ALL THIRD-PARTY PRODUCTS, IF ANY, PROVIDED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND SPARK DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT) WITH REGARD TO SUCH THIRD-PARTY PRODUCTS.
Limitation of Liability. EXCEPT FOR YOUR VIOLATION OF THE RESTRICTIONS NOTED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SPARK, ITS AFFILIATES, OWNERS, OFFICERS, TRUSTEES, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, RESELLERS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS BE LIABLE UNDER ANY LEGAL THEORY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RESULTING FROM THE SERVICES OR THIS EULA, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTEREST OR INTERRUPTION OF BUSINESS, WHETHER BASED UPON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, DUTY TO WARN AND STRICT LIABILITY), WARRANTY OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, OR ANY FAILURE TO CONFORM TO ANY WARRANTY UNDER THIS EULA.
Limitations On Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE OR OUR THIRD PARTY PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER, RESULTING FROM ANY LOSS OF USE, LITIGATION, OR ANY OTHER PECUNIARY LOSS, INCLUDING LOSS OF GOODWILL OR REPUTATION, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE PRODUCT, WITH THE DELAY OR INABILITY TO USE OR WITH THE PROVISION OF OR FAILURE TO MAKE AVAILABLE THE PRODUCT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT NEITHER WE NOR OUR THIRD-PARTY PROVIDERS ARE LIABLE FOR ANY PERSONAL INJURY, INCLUDING DEATH, CAUSED BY YOUR USE OR MISUSE OF OUR PRODUCT. We further disclaim liability for any damages caused by you, including without limitation, your failure to follow our documentation or instructions, your failure to back up your data, or any failure or malfunction of your tools, equipment, facilities, or devices.
Cap on Damages. SUBJECT TO THE LIMITATIONS CONTAINED IN THIS EULA, EXCEPT WITH RESPECT TO OUR GROSS NEGLIGENCE OR WILLFULL MISCONDUCT, SPARK AND OUR AFFILIATES, OWNERS, OFFICERS, TRUSTEES, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS SHALL ONLY BE LIABLE TO THE EXTENT OF ACTUAL, DIRECT DAMAGES INCURRED BY YOU, NOT TO EXCEED THE FEES PAID BY YOU TO SPARK UNDER THIS EULA IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES. THE EXISTENCE OF MULTIPLE CLAIMS SHALL NOT INCREASE THIS LIMIT.
Claim Limit. Any claims arising in connection with your use of the Services must be brought within one (1) year of the date of the event of such claim. Remedies under this EULA are exclusive and are limited to those expressly provided for in this EULA. While we may agree to a refund of the fees paid by you for the Services, based upon your reasonable request for the same and our sole discretion in complying with such request, generally your sole and exclusive remedy for any concerns you have about the Services shall be for you to discontinue using of the Services.
Bargained For Basis. You acknowledge and agree that the limitations of liability set forth above are fundamental elements of this EULA and neither the information nor the Services would be provided to you absent such limitations of liability.
Links. SPARK may include hyperlinks on our Services to other websites or resources operated by third parties, including advertisers. SPARK has not reviewed all of the sites linked to our Services and is not responsible for the content or accuracy of any off-site pages nor are we responsible for the availability of such external websites or resources, and do not endorse and are not responsible or liable, directly or indirectly, for the privacy practices or the content of such websites, including (without limitation) any advertising, products or other materials or services on or available from such websites or resources, nor for any damage, loss or offence caused or alleged to be caused by, or in connection with, the use of or reliance on any such content, products or services available on such external websites or resources.
YOUR ACKNOWLEDGEMENT OF OUR RIGHTS
User Content License. You hereby grant to us a non-exclusive license to use, host, sublicense, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display, including digitally or electronically provided that the same is subject to: (i) User Content, including all personally identifiable information, only as necessary to provide the Services, to analyze and improve the Services, as specified under Third Party Licenses and/or interoperation of any third party products, and (ii) User’s logos and/or marks on or in association with the Services (e.g. for private branding purposes), as may be further specified in the applicable order form, provided the use of User’s logos and/or marks is approved in writing by User prior to any such use.
Feedback. Notwithstanding the foregoing, if User submits any business information, ideas, concepts or inventions to SPARK about the Services, SPARK’s Confidential Information or SPARK’s Intellectual Property Rights, User hereby grants, and/or warrants that the owner of such content or intellectual property has expressly granted to SPARK, a royalty-free, perpetual, irrevocable, world-wide, non-exclusive, transferable, sublicensable (through multiple tiers) license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display, including digitally or electronically, such content or intellectual property in any media or medium, or any form, format or forum now known or hereafter developed.
De-Identified Data. User acknowledges and agrees that any de-identified Client Content shall be owned by SPARK and may be used for any purpose, including without limitation: (i) analysis and incorporation of such de-identified data in databases, reports, comparative data sets, scores or scoring systems generated therefrom; and (ii) creation and distribution of works and derivative works based on the de-identified data; provided that such de-identification complies with an industry standard such as the National Institute of Standards and Technology’s Internal Report 8053 (NIST IR 8053). For the avoidance of doubt, SPARK does not sell any identifiable User Content.
Location Tracking. Our Services may include technology enabling us to track the location of any device you use to access or use our Services; you consent to the use of this location tracking technology by accessing or using our Services. Our Privacy Notice contains more information on how we use this information.
Your Responsibility. You understand that you are solely responsible for (and that SPARK has no responsibility to you or to any third party for) any breach of your obligations under these EULA and for the consequences (including any loss or damage which SPARK may suffer) of any such breach.
Compliance with Law. You agree that you will not use our Services for activities prohibited by state, federal, or your country’s law or other applicable rules or regulations. You represent and warrant that: (i) you are not located in a country that is subject to U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. SPARK makes no claims regarding our Services outside of the United States. If you access our Services from outside the United States, you do so at your own risk and are responsible for compliance with laws of your jurisdiction. You will comply with all U.S. export control laws as applicable to the Services, and you will not transport, divert, re-export, or otherwise dispose of any U.S.-origin technology except as expressly permitted under applicable U.S. laws and regulations. If you are a U.S. Government user when you acquire the Services, your use of the Services which includes “computer software” and “commercial computer software documentation” as such terms are defined in 48 C.F.R. 12.211, your rights shall be consistent with those rights set forth in 48 C.F.R. 12.212, which generally limits the U.S. Government’s rights to licenses customarily provided by the licensor to the public. The Services provided to you as a US Government end user will be subject to the restrictions and rights set forth in FAR 52.227-14 and FAR 52.227-19 as applicable.
Agreement. Unless you receive our Services through an organization subject to a Master Services Agreement with SPARK, this EULA constitutes the entire agreement and understanding between you and SPARK with respect to the subject matter hereof and supersede all prior agreements, understandings, inducements and conditions expressed or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. This EULA shall be binding upon and inure to the benefit of you and SPARK, our successors, and assigns. This EULA and your User account may not be assigned with our express, prior written consent which may be withheld at our sole discretion. Notices under this EULA shall be in writing and shall be deemed given when: (i) delivered personally or by respected international carrier; (ii) three (3) business days after the date sent by certified mail, postage prepaid with return receipt requested. Notices to SPARK shall be made through our website. SPARK is headquartered in the State of Minnesota.
Governing Law. This EULA and the resolution of any dispute related to the terms of this EULA or our Services shall be governed by and construed in accordance with the laws of the State of Minnesota, without giving effect to any principles of conflicts of law.
Arbitration; Collection; Venue. Except as provided below, any controversy or claim arising out of or relating to this EULA will be settled by arbitration in Hennepin County, Minnesota, at a time and location designated by the arbitrator. Arbitration will be conducted by the American Arbitration Association in accordance with its Rules of Commercial Arbitration, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator will be selected from a panel of persons having experience with and knowledge of the third-party administrator industry. Nothing herein contained will bar either party from seeking equitable remedies in a court of appropriate jurisdiction; in addition, SPARK reserves the right to bring any infringement of our intellectual property rights in a court of appropriate jurisdiction. SPARK shall be entitled to decrees of specific performance (without posting bond or other security) in addition to such other remedies as may be available. If SPARK successfully enforces this EULA under arbitration or court action, you must pay reasonable costs and expenses of the arbitration or other action, including reasonable attorney’s fees and costs. Any legal action related to this EULA or our Services shall be brought in a state or federal court of competent jurisdiction sitting in Hennepin County, Minnesota.
Class-Action Waiver; Jury Waiver. You agree that any claims or proceedings brought by you relating to our Services will be conducted on an individual basis, and not on a class-wide, collective, or representative basis, and that any one person’s claims or proceedings may not be consolidated with any other claims or proceedings. You will not sue SPARK as a class plaintiff or class representative, join as a class member, or participate as an adverse party in any way in a class-action lawsuit against SPARK. Nothing in this paragraph, however, limits your right to file a claim as an individual plaintiff. You expressly waive your right to a trial by jury related to our Services which are the subject of these Terms and all of your claims are subject to mandatory arbitration as noted above. In order to effect service of process on SPARK, please contact the Minnesota Secretary of State to obtain the name of the registered agent and the registered office address that is on file with the Secretary of State for SPARK.
No Waiver; Severability. SPARK’s failure to insist upon strict enforcement of any provision(s) of this EULA shall not be construed as a waiver of any provision or right. Should any provision of this EULA be held invalid or unenforceable, such invalidity will not invalidate the whole of this EULA, but rather that invalid provision will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this EULA will remain in full force and effect.
Independent Contractors. The parties are independent contractors, and nothing in this EULA shall be construed to make the parties partners, joint venturers, representatives or agents of each other, nor shall either party so represent to any third person. No employer-employee relationship is intended to be created by this EULA.
Headings. Section and subsection headings are not to be considered part of this EULA. They are included solely for convenience and not intended to be full or accurate descriptions of the content hereof.
Successors and Assigns. User may not assign this EULA, or any of User’s rights or obligations hereunder, without the prior written consent of SPARK, and any attempted assignment without SPARK’s prior written consent shall be null and void. For the avoidance of doubt, SPARK may assign this EULA, or any of its rights or obligations hereunder, to an affiliate or in the event of a transfer of all or substantially all of SPARK’s assets or SPARK’s restructuring, upon written notice to User. All of the terms and provisions of this EULA shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Survival. User’s Restrictions obligations, each party’s confidentiality obligations, User’s obligations for fees and taxes, any Ownership provisions, the Limitation on Our Obligations section, and this Miscellaneous section shall survive the termination or expiration of this EULA for any reason and shall remain in effect after any such termination or expiration.
Contact. You may contact us at: email@example.com
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