Please review these terms (the “Agreement”) carefully. Wherever used in this Agreement, “you”, “your”, “Customer”, and similar terms mean the person or legal entity accessing or using the Services; for the avoidance of doubt, if you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, “you”, “your” or “Customer” means the company or other legal entity that you are using the Services on behalf of. Wherever used in this Agreement, “Sparkcentral”, “we”, “us”, and similar terms mean Sparkcentral Europe NV.
By its continued use of Sparkcentral’s website (including, without limitation, by providing personal data to Sparkcentral using its website, by creating an account on Sparkcentral’s website) or using any of Sparkcentral’s Services (even if provided free of charge or on a trial basis), Customers acknowledges and accepts that it has duly, validly and completely consented with and accepted this Agreement.
1.1 Definitions. We use capitalization for terms that have a special meaning in this Agreement. While some terms are defined elsewhere,the following key terms shall have the meanings set forth below:
“Authorized User” means anyone that uses our Services through your account, which may include your employees, consultants or contractors, or the employees, consultants or contractors of your “Affiliates”, which are companies or entities that you own, that own you, or that have the same owner or corporate parent as you.
“Customer Content” means any data and other material (in any format) uploaded or supplied to Sparkcentral by Customer (or any of its Authorized Users) or collected and processed by or for Customer (or any of its Authorized Users) in the course of receiving or using the Services.
“Fees” means the fees, costs and applicable taxes of any kind payable by Customer in consideration for access to the Services;
“Intellectual Property” means any industrial or intellectual property right, including any undisclosed know-how, such as (without limitation) copyright, trademarks, patents, design rights and data base rights;
“Object Code” means work in a machine-readable form that is not convenient to human understanding of the program logic, and that can be executed by a computer using the appropriate operating system without compilation or interpretation, and specifically excludes Source Code;
“Order Form” means a document issued by us (or our authorized reseller) and signed or otherwise agreed to by you, which describes the Services you are purchasing, including the fees, the quantities purchased, and any other details specifically related to those services.
“Services” means (without limitation) access to the Sparkcentral online software platform as a service (SaaS) and any other data (such as API keys), information or documentation provided by Sparkcentral to you within the scope of this Agreement but specifically excluding any Source Code and/or Object Code;
“Source Code” means work when written in a form or language understandable to humans, generally in a higher level computer language, and further including embedded comments in the (English) language;
“Third-Party Services” are services that are not provided by Sparkcentral that you may access or use in connection with our Services, including the “Channels”, which are the social networks and messaging platforms supported by our Services (such as Twitter, Facebook, Instagram, WhatsApp, SMS/text, etc), and any “Partner Services”, which are third-party services resold by Sparkcentral as an authorized reseller.
“Trial Period” means the limited duration during which Sparkcentral grants you access to the Services on “proof of concept” (POC) basis.
Headings used in this Agreement are for convenience of reference only and do not affect the construction or interpretation of this Agreement.
2. SERVICES AND SUPPORT
2.1. Scope. This Agreement governs your access to and use of the Services; for greater clarity, you are solely responsible and liable under this Agreement for all access to and use of the Services by your Authorized Users.
2.2. Provision of Services. During the Term, subject to the terms and conditions of this Agreement, we will: (a) make the Services available to you in accordance with the applicable Order Form; and (b) host, serve, and provide support for the Services in accordance with the Service Level Agreement published at https://www.hootsuite.com/legal/sparkcentral-privacy-policy.
2.3. Sparkcentral’s API and/or SDK. Subject to Customer’s compliance with the terms and conditions of this Agreement, and Customer’s agreement to such additional terms and conditions as Sparkcentral may require, Sparkcentral may grant to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license during the Term to use any application programming interface information, SDK (Software Development Kit) or instructions provided by Sparkcentral to Customer (“Sparkcentral API”) solely (i) to enable the Customer application to interoperate with the Sparkcentral platform, or (ii) for developing or enabling Customer applications that will only be used by Customer to interoperate with the Sparkcentral Services in accordance with the provisions of this Agreement and any other policies and guidelines published by Sparkcentral from time to time or as agreed between the Parties during the Term.
2.4. Updates. Our Services evolve constantly. So long as we do not breach the warranty set out in Section 7.2(ii), we may change our Services (such as by changing, adding or removing features) at any time, for any reason, and may or may not provide notice of those changes to you.
2.5. Channels. Our Services interact with Channels and depend on the availability of those Channels and the features and functionality the providers of those Channels make available to us, which we do not control and may change without notice. If at any time a Channel provider stops making some or all of its features or functionality available to us, or available to us on reasonable terms as determined by Sparkcentral in its sole discretion (each an “API Change”), we may stop providing access to those features or functionality and we will not be liable to you or any third party for any such change.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1. Usage Restrictions. Without prejudice to mandatory applicable law and to the extent allowed by applicable law, Customer will not, directly or indirectly:
(i) reverse engineer, decompile, disassemble or otherwise attempt to discover the Source Code, Object Code or underlying structure, ideas or algorithms of the Services or any software, documentation, data or the Sparkcentral API and/or SDK related to the Services;
(ii) modify, translate, or create derivative works based on the Services or any software (except to the extent expressly permitted by Sparkcentral or authorized within the scope of the provision of the Services);
(iii) transfer, distribute, sell, resell, lease, sublease, license, sub-license, assign (including by operation of law) or rent the Services;
(iv) store or transmit infringing, libelous, or otherwise unlawful or tortious material, or store or transmit material in violation of any third-party privacy or data protection rights;
(v) use the Services to store or transmit code, files, scripts, agents or programs intended to do harm, including, without limitation, viruses, worms, time bombs and Trojan horses;
(vi) interfere with or disrupt the integrity or performance of any software or third-party data contained therein;
(vii) attempt to gain unauthorized access to the Services or any related software or its related systems or networks;
(viii) permit direct or indirect access to or use of the Services or any software in a way that circumvents a contractual usage limit;
(ix) copy the Services or any software or any part, feature, function or user interface thereof;
(x) access the Services or any software in order to build a competitive product or service.
3.2. Customer Responsibilities. Customer represents, covenants, and warrants that Customer (and each of its Authorized Users) will:
(i) use the Services only for professional purposes and in compliance with all applicable laws and regulations (including but not limited to policies and laws related to spamming, privacy, data protection, intellectual property, consumer and child protection, obscenity, and defamation)
(ii) use commercially-reasonable best efforts to prevent unauthorized access to or use of the Services (including without limitation by maintaining strong passwords, and keeping all passwords and other login credentials for the Services confidential);
(iii) promptly notify Sparkcentral if you become aware of or suspect any security breach regarding your account, including any loss, theft, or unauthorized disclosure or use of your (or any of your Authorized Users’) username, password, or account; and
3.3. Monitoring. Sparkcentral has no obligation to monitor Customer’s use of the Services, but Sparkcentral may do so at its sole discretion and may suspend, restrict, or prohibit any use of the Services it believes may be (or alleged to be) in violation of Sections 3.1 or 3.2.
3.4. Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords and files, and for all uses of Customer account or the Equipment.
4. OWNERSHIP AND CONFIDENTIALITY
4.1. Reservation of Rights. Sparkcentral exclusively owns all right, title and interest in and to the Services and any related software and Intellectual Property without prejudice to the rights of third parties. Except as expressly granted hereunder, Sparkcentral reserves all rights, title and interests in and to the Services and the underlying software and related API’s and SDK, including all of Sparkcentral’s related Intellectual Property rights. No rights or licenses are granted to Customer hereunder other than as expressly set forth herein.
4.2. Customer Content. As between the Parties, the Customer Content (as defined below) will be owned by Customer. Customer will be solely responsible for the accuracy, quality, integrity and legality of Customer Content. Customer hereby grants to Sparkcentral a non-exclusive, worldwide license to copy, modify, display and use Customer Content solely to the extent required to adequately perform the Services.
4.3. Feedback. To the extent that Customer gives Sparkcentral Feedback, comments, or suggestions concerning the Services (collectively, “Feedback”), Customer acknowledges and agrees that all Feedback will be and become Sparkcentral’s sole and exclusive property, and Customer hereby irrevocably transfers and assigns to and agrees to irrevocably assign and transfer to Sparkcentral all of its right, title, and interest in and to the Feedback, including all Intellectual Property rights therein. At Sparkcentral’s request and expense, Customer will execute documents and take such further acts as Sparkcentral may reasonably request to assist it in acquiring, perfecting and maintaining its Intellectual Property rights in and other legal protections for the Feedback.
4.4. Protection of Proprietary and Confidential Information. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Sparkcentral includes non-public information regarding features, functionality and performance of the Services or any software. The Receiving Party agrees: (i) to use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care), and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information for any purpose. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Notwithstanding anything to the contrary, Sparkcentral shall have the right collect and analyze data and other information relating to the use and performance of various aspects of the Services and related systems and technologies, including but not limited to Customer Content, and Sparkcentral will be free to (i) use such information and data (during and after the Term hereof) to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Sparkcentral offerings, and (ii) disclose such data in aggregate or other de-identified form in connection with its business.
4.5. Compelled Disclosure. The Receiving Party may disclose Proprietary Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Proprietary Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party’s costs in compiling and providing secure access to that Proprietary Information.
4.6. Exceptions. Either Party may disclose this Agreement (but not any other Proprietary Information) in connection with (a) due diligence reviews and disclosure requirements in relation to significant transactions or dealings involving either Party, as the case may be, and which are outside the ordinary course of either Party’s business, as the case may be, including investments, acquisitions or financings (collectively referred to as “Significant Transactions”), to other parties to such Significant Transactions or their professional advisors, provided that each such party has executed an agreement protecting the Disclosing Party’s Proprietary Information to the same or a greater extent than provided by this Agreement, (b) a party’s obligations, including reporting obligations pursuant to such Significant Transactions; provided that such other parties shall agree, in writing, to protect and maintain the confidentiality of same (except that such writing shall not permit any disclosure of Proprietary Information pursuant to the exemptions contemplated in this paragraph), or (c) an audit of its business conducted by a taxing authority or other supervisory authority, to such authority and/or the party’s professional advisors, provided any such advisors must execute an agreement protecting the Disclosing Party’s Proprietary Information to the same or a greater extent than provided by this Agreement.
5. PAYMENT OF FEES
5.1. Fees. Customer will pay Sparkcentral (or its authorized reseller) the applicable Fees set forth in the applicable Order Form, plus any applicable Fees imposed by any Channel provider (including without limitation any applicable WhatsApp Business messaging charges as published at https://developers.facebook.com/docs/whatsapp/pricing/). Except as otherwise specified therein or in this Agreement, payment obligations are non-cancelable and amounts paid are non-refundable.
5.2. Authorized Reseller. For any Services purchased through a Sparkcentral authorized reseller (the “Reseller”) Customer will be invoiced for and will pay all applicable Fees to the Reseller in accordance with the terms and conditions applicable between Customer and the Reseller; and (b) Sections 5.3 through 5.6 of this Agreement do not apply.
5.3. Payment. Prior to the provision of Services, Customer shall provide Sparkcentral all relevant information regarding Customer’s Electronic Funds Transfer (EFT) including, without limitation, BIC/SWIFT and/or IBAN information (for EFT’s within SEPA). Customer represents and warrants to Sparkcentral that such information is true and that Customer is authorized to use such payment instrument. Customer will promptly update its account information with any changes (for example, a change in Customer billing address or bank details) that may occur. Payments due under this Agreement shall be made by Customer in EUR or USD (as determined by Sparkcentral) via an electronic fund transfer (EFT) Sparkcentral’s bank-account, the details of which are provided by Sparkcentral to Customer. It is Sparkcentral’s responsibility to provide correct and complete banking information directly to Customer’s Accounts Payable department for EFT initial set up in Customer’s system and for any required changes thereafter. All costs and bank charges related to any EFT is to be borne exclusively by the Customer.
5.4. Customer hereby authorizes Sparkcentral to invoice Customer in advance. Customer must dispute any invoice it intends to dispute within thirty (30) days of receipt by sending a written notice to Sparkcentral both via email and registered letter or overnight courier. Unpaid amounts of undisputed invoices are subject to a finance charge of 1% per month on any outstanding balance and may result in termination of the provision of Services in accordance with Section 6.3.
5.5. Taxes. Sparkcentral’s fees do not include any taxes (such as VAT), levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all applicable Taxes associated with Customer’s purchases hereunder. If Sparkcentral has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5.3, Sparkcentral will invoice Customer and Customer will pay that amount unless Customer provides Sparkcentral with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Sparkcentral is solely responsible for taxes assessable against Sparkcentral based on Sparkcentral’s income, property and employees.
5.6. Invoices. As needed, Sparkcentral shall register at Customer’s cost and expense with Customer’s e-invoicing application service provider of choice, and any related fees shall be added to Customer’s invoice. Sparkcentral will submit invoices which: (i) include Sparkcentral’s full legal name, address and Tax registration numbers, a unique invoice number, the date the invoice was issued and the Customer contract number and email address; and (ii) include detailed descriptions of the Services purchased and indicate an invoice subtotal before applicable Taxes. Invoices can be submitted in electronic format to be received via an approved electronic data interchange (“EDI”) or other data transmission format approved by Customer from time to time. Registration with such invoicing provider shall not alter Customer’s payment obligations hereunder.
5.7. Future Functionality. Customer agrees that purchases are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Sparkcentral regarding future functionality or features, and Sparkcentral expressly disclaims any warranties or guarantees, express or implied, relating to future functionality or features.
6. TERM AND TERMINATION
6.1. Term of Agreement. This Agreement will commence on the first day of the initial term set forth on your first Order Form, and will continue in effect until the earlier of: (a) the expiration of all Order Forms applicable to you (including any renewal periods); and (b) the termination of this Agreement in accordance with its terms (the “Term”).
6.2. Term of Order Forms. The term of each Order Form will start on the first day of the initial term specified on the Order Form, and will continue for the specified term. Except as expressly stated otherwise in an Order Form, all Order Forms will automatically renew for subsequent one-year renewal periods unless a party gives the other party written notice of non-renewal at least sixty (60) days prior to the end of the then-current term. Sparkcentral reserves the right to increase the Fees for Services and/or Partner Services on renewal by providing Customer written notice thereof (which notice may be provided by email) at least ninety (90) days prior to the end of the then-current term.
6.3. Termination for Cause. A party may terminate this Agreement for cause (a) immediately if the other party has failed to cure a material breach within thirty (30) days of receiving written notice of that material breach from the other party; or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
6.4. Effects of Termination. Upon termination of this Agreement for any reason: (a) all Order Forms will automatically terminate; (b) your access to the Services and Partner Services will be terminated and you will immediately cease all use thereof; and (c) you will pay all unpaid amounts you owe to Sparkcentral. If you terminate this Agreement in accordance with Section 6.3, Sparkcentral will refund any Fees you paid in advance for the Services and Partner Services applicable to the period after termination. If Sparkcentral terminates this Agreement in accordance with Section 6.3, then you will pay any unpaid Fees for the remainder of the term of each Order Form. In no event will early termination relieve Customer of its obligation to pay any Fees payable to Sparkcentral for the period prior to the effective date of termination.
6.5. Survival. All Sections of this Agreement which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. REPRESENTATIONS, WARRANTIES AND DISCLAIMER
7.1. Representations. Customer and Sparkcentral each represents and warrants that: (i) it has validly entered into this Agreement and have the legal power to do so; and (ii) it will perform its obligations and duties and exercise its rights under this Agreement in compliance with all laws applicable to it; and (iii) its performance of this Agreement does not violate any other agreement or understanding to which it is a party or to which it may be otherwise bound.
7.2. Sparkcentral Representations. Sparkcentral represents and warrants that: (i) is a corporation duly organized and legally existing in good standing under the laws of Belgium; and (ii) subject to an API Change, the functionality of the Services will not be materially decreased during the term of the applicable Order Form.
7.3. Customer Representations. Customer represents and warrants that: (i) it has all necessary permits and licenses required to operate its business; and (ii) if Customer is entering into this Agreement on behalf of a company or other legal entity, that it has the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its affiliates (and if Customer does not have such authority, or if Customer does not agree with these terms and conditions, Customer must not accept this Agreement and may not use the Services).
7.4. DISCLAIMERS. SPARKCENTRAL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND SPARKCENTRAL DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY MANDATORY APPLICABLE LAW. SPARKCENTRAL DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
8.1. Indemnification by Sparkcentral. OTHER THAN DURING A TRIAL PERIOD, SPARKCENTRAL WILL DEFEND CUSTOMER AND INDEMNIFY CUSTOMER AGAINST ANY AND ALL COSTS, DAMAGES AND EXPENSES (INCLUDING REASONABLE LEGAL FEES) ARISING OUT OF ANY THIRD-PARTY CLAIM THAT THE SERVICE INFRINGES ANY VALID INTELLECTUAL PROPERTY RIGHT OF A THIRD PARTY (“CLAIM”); PROVIDED THAT CUSTOMER: (I) PROVIDES PROMPT WRITTEN NOTICE OF A POTENTIAL CLAIM; (II) GIVES SPARKCENTRAL SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF THE CLAIM (PROVIDED THAT SPARKCENTRAL MAY NOT SETTLE ANY CLAIM UNLESS IT UNCONDITIONALLY RELEASES CUSTOMER OF ALL LIABILITY); AND (III) PROVIDES SPARKCENTRAL, AT SPARKCENTRAL’s EXPENSE, ALL REASONABLE ASSISTANCE NECESSARY FOR DEFENSE AND SETTLEMENT. SPARKCENTRAL MAY, AT ITS SOLE OPTION AND EXPENSE: (A) PROCURE FOR CUSTOMER THE RIGHT TO CONTINUE USING THE SERVICE PURSUANT TO THESE TERMS OF SERVICE; (B) REPLACE OR MODIFY THE SERVICES TO BE NON-INFRINGING WITHOUT MATERIAL DECREASE IN FUNCTIONALITY; OR (C) IF THE FOREGOING OPTIONS ARE NOT REASONABLY PRACTICABLE, TERMINATE THESE TERMS OF SERVICE AND REFUND CUSTOMER ALL PREPAID FEES FOR THE REMAINDER OF A FIXED TERM. NOTWITHSTANDING THE FOREGOING, SPARKCENTRAL SHALL HAVE NO LIABILITY FOR ANY CLAIM TO THE EXTENT IT IS BASED ON (X) CUSTOMER’S BREACH OF THESE TERMS OF SERVICE (INCLUDING BUT NOT LIMITED TO ANY UNAUTHORIZED USE OF THE SERVICES OR ANY MODIFICATION OF THE SERVICES BY ANY PERSON OTHER THAN SPARKCENTRAL OR ITS AUTHORIZED AGENTS); (Y) ANY COMBINATION OF THE SERVICES WITH OTHER NON-SPARKCENTRAL PRODUCTS, EQUIPMENT, SOFTWARE, USES OR DATA, TO THE EXTENT SUCH CLAIM WOULD NOT HAVE ARISEN ABSENT SUCH COMBINATION; OR (Z) ANY ACTIVITY AFTER SPARKCENTRAL HAS PROVIDED CUSTOMER WITH A WORK AROUND OR MODIFICATION THAT WOULD HAVE AVOIDED SUCH ISSUE WITHOUT ADVERSELY AFFECTING THE FUNCTIONALITY OF THE SERVICES. THIS SECTION 8.1. IS SPARKCENTRAL’s SOLE LIABILITY TO, AND CUSTOMER’S EXCLUSIVE REMEDY AGAINST SPARKCENTRAL FOR ANY INTELLECTUAL PROPERTY CLAIM AND SHALL ONLY APPLY TO THE EXTENT THAT CUSTOMER HAS PAID FEES FOR USE OF THE SERVICES.
8.2. Indemnification by Customer. CUSTOMER HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS SPARKCENTRAL AGAINST ANY DAMAGES, LOSSES, LIABILITIES, SETTLEMENTS AND EXPENSES (INCLUDING WITHOUT LIMITATION COSTS AND ATTORNEYS’ FEES) IN CONNECTION WITH ANY CLAIM OR ACTION: (A) ALLEGING THAT ANY CUSTOMER CONTENT INFRINGES OR VIOLATES THE INTELLECTUAL PROPERTY RIGHTS (INCLUDING WITH RESPECT TO ANY PATENT, TRADEMARK, TRADE NAME, SERVICE MARK, COPYRIGHT, TRADE SECRET OR ANY OTHER INTELLECTUAL PROPERTY RIGHT OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY ANYWHERE IN THE WORLD), PRIVACY RIGHTS, OR ANY OTHER RIGHTS OF A THIRD PARTY OR VIOLATES ANY APPLICABLE LAW; OR (B) ARISING FROM CUSTOMER’S BREACH OF SECTION 3.1 OR 3.2 OF THIS AGREEMENT OR USE OF THE SERVICES IN VIOLATION OF THIS AGREEMENT.
9. LIMITATION OF LIABILITY
9.1. EXCLUSION OF LIABILITY. TO THE EXTENT PERMITTED BY MANDATORY APPLICABLE LAW AND EXCEPT FOR SPECIFIC INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN (INCLUDING, WITHOUT LIMITATION, IN SECTION 8 HEREOF), SPARKCENTRAL’S MAXIMUM LIABILITY ARISING OUT OF THESE TERMS OF SERVICE FOR DIRECT DAMAGES SHALL NOT EXCEED IN THE AGGREGATE THE TOTAL VALUE OF THE FEES PAID DURING THE LAST TWELVE (12) MONTHS. IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS OF SERVICE OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS (OPPORTUNITIES); (B) FOR ANY LOST PROFITS, REVENUES OR INDIRECT OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL INCLUDING FORCE MAJEURE. THE ABOVE LIMITATIONS WILL NOT HOWEVER NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THESE TERMS OF SERVICE AND WILL NOT APPLY IN THE EVENT OF INTENTIONAL FAULT OR BREACH, PERSONAL INJURY OR DEATH OR DAMAGE TO REAL PROPERTY.
10. PROTECTION AND PROCESSING OF PERSONAL DATA
10.1 Data Controller and Data Processor. Customer and Sparkcentral agree that within the scope of this Agreement, Customer shall at all times be considered as “data controller” which entails that Customer shall determine the purposes and means of the processing of any personal data and Sparkcentral shall at all times be considered as “data processor” acting on behalf of Customer. Sparkcentral does not permanently store any personal data which is processed by Customer using the Services. Any such data is purely transient.
11.1 Assignment. Neither party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the other party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, we may assign this Agreement in its entirety (including all Order Forms), without your consent, to our Affiliate, or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our shares or assets.
11.2. Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
11.3. Publicity. Unless you provide us with written notice to the contrary or of any reasonable restrictions or requirements, you agree that we may disclose that you are a customer of the Services and may use your name(s) and logo(s) in: (a) Sparkcentral’s digital, online, and printed marketing materials (including on our websites); and (b) external-facing presentations, including to individual clients and prospects and at trade shows, conferences, and similar events.
11.4. Force Majeure. Neither party will be liable for any failure to perform its obligations under this Agreement if that failure results from any cause beyond such party’s reasonable control, including: the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lockouts or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
11.5. Amendment. We may change any part of this Agreement (including any terms or documents incorporated by reference in this Agreement) at any time by posting the revised terms on the Sparkcentral website. It is important for you to review this Agreement before using our Enterprise Services and from time to time, though we will notify you of any changes that, in our sole discretion, materially impact this Agreement. The updated Agreement will be effective as of the time of posting, or on such later date as may be specified in the updated Agreement, and your continued use of the Enterprise Services after any such changes are effective will constitute your consent to such changes. Except for changes made by us as described here, no other amendment or modification of this Agreement will be effective unless set forth: (a) in an Authorization Form issued by Sparkcentral and signed by you; or (b) in an agreement signed or otherwise agreed in writing by both you and Sparkcentral.
11.6. Severability. If a court finds part of this Agreement to be invalid, the rest of the Agreement will continue to apply with the minimum changes required to remove the invalid part.
11.7. Notices. Sparkcentral may give notice to you by placing a banner notice on the Sparkcentral platform or Sparkcentral’s website. We may also contact you or your Authorized Users through your account or contact information you provide, such as email or telephone. If you fail to maintain accurate account information, such as contact information, you may not receive critical information about our Services or this Agreement. As a rule, notices required under this Agreement will be sent by e-mail and Customer acknowledges and accepts that email constitutes valid and binding notification and that it will take all required measures to monitor and read any incoming emails.
11.8. Waivers. The rights of each Party may be waived only in writing. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
11.9. Remedies. Unless otherwise stated, each party’s remedies under this Agreement are not exclusive of any other remedies under this Agreement, at law or otherwise.
11.10. Governing Law and Dispute Resolution.
(a) The laws of New York will govern any dispute, cause of action or claim arising out of this Agreement or your use of our Services, without giving effect to conflict-of-law principles.
(b) If you breach this Agreement or violate our rights or another person’s rights, in addition to any other remedy, we may ask a court for an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions of this Agreement, and you will reimburse us for our reasonable legal fees associated therewith.
(c) If you have any kind of dispute with us, the exclusive means of resolving it will be by confidential, binding arbitration before a single arbitrator chosen by you and Sparkcentral. You will give notice of your dispute to us in writing. If we do not decide together on an arbitrator within fifteen (15) days after we receive that notice, we both agree to ask the American Arbitration Association (AAA) to appoint one for us. The arbitration will take place in New York, New York, under the Federal Arbitration Act (Title 9 of the United States Code), will be conducted in the English language, and will follow the International Arbitration Rules of the AAA (2014). The arbitrator will have the right to decide how the costs should be divided between us. The arbitrator will have the right to accept whatever kind of evidence they think is appropriate and will have the right to make whatever award they consider fair and equitable, based on legal and equitable principles, including giving an order such as an injunction (to stop one of us from doing something) or an order that you or we pay damages to the other. The arbitrator’s award can be entered into the registry of the United States District Court for the Southern District of New York and enforced in the same way as a court order if the court in the enforcing jurisdiction allows.
(d) Any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Sparkcentral and you each waive any right to a trial by jury.
(e) Any dispute resolution and related proceedings shall be kept private and confidential, and there shall be no disclosure to third parties unless otherwise required by law.
11.11. Export Compliance. You may not use or access our Services if you are located in any jurisdiction in which the provision of our Services is prohibited under U.S. or other applicable laws (a “Prohibited Jurisdiction”) and you will not provide access to our Services to any government, entity or individual located in any Prohibited Jurisdiction. You confirm that you are not named on any U.S. government list of persons or entities prohibited from transaction with any U.S. person; (b) you are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) you will not allow Authorized Users to access or use our Services in violation of any U.S. or other export embargoes, prohibitions or restrictions; and (d) you will comply with all applicable laws regarding the transmission of data exported from the country in which you (or your Authorized Users) are located to the United States. Without limiting the generality of the foregoing: (i) you may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority; (ii) as defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation”; and (iii) consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by this Agreement and will be prohibited except to the extent expressly permitted by these terms of this Service.
11.12 Entire Agreement. This Agreement, including the other documents referred to as applicable to the Services in this Agreement, is the entire agreement between you and Sparkcentral for your use of our Services. Any prior understandings, statements or and agreements (oral or written) do not apply, including additional terms that you may present (such as terms in a unilateral notice from you to us or printed on a purchase order or any other document generated by you). This Agreement is binding on the parties and their permitted successors and assigns.