Sparkcentral

Terms

The following terms and conditions (this “Agreement”) govern Customer’s acquisition and use of Sparkcentral’s services. The “Services” include any software, data, information or documentation provided by Sparkcentral to Customer pursuant to this Agreement.  If and to the extent that Customer registers for a free trial for Sparkcentral’s services, this Agreement will also govern that free trial. This Agreement includes and incorporates the provisions of any Order Forms executed by the parties (the “Order Form”). Any capitalized term used but not defined in this Agreement shall have the meaning assigned to it in the Order Form.

 

If Customer is entering into this Agreement on behalf of a Company or other legal entity, Customer represents 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. 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.

 

Sparkcentral reserves the right to update and change the Agreement from time to time without notice; provided, however, that Sparkcentral will endeavor to provide Customer with prior notice of any material changes. Any new features that change the current Services, including the release of new tools and resources, shall be subject to this Agreement. Continued use of the Services after any such changes shall constitute Customer’s consent to such changes. Customer can review the most current version of this Agreement at any time here.

 

  1. SERVICES AND SUPPORT

 

1.1. Provision of Services. Subject to the terms and conditions of this Agreement and the applicable Order Form, Sparkcentral will use reasonable efforts to provide Customer the Services and hereby grants Customer a non-exclusive and limited-term license, under Sparkcentral’s applicable intellectual property rights and licenses, to access and use the Services during the Term solely for the purposes described on the Order Form, except for (i) planned downtime (of which Sparkcentral will give at least 8 hours electronic notice and which Sparkcentral will schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time), and (ii) any unavailability caused by circumstances beyond Sparkcentral’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Sparkcentral’s employees), Internet service provider failure or delay, or denial of service attack.

 

1.2. Support Services. Subject to the terms hereof, Sparkcentral will use reasonable efforts to provide Customer with either Gold Support or Platinum Support services specified on the Order Form and described on Exhibit A of this Agreement.

 

  1. RESTRICTIONS AND RESPONSIBILITIES

 

2.1. Usage Restrictions. 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 API related to the Services (“Software”); (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 Services); (iii) use the Services or any Software for timesharing, outsourced or service bureau purposes or otherwise for the benefit of a third party (other than Customer’s end users); (iv) transfer, distribute, sell, resell, lease, sublease, license, sub-license, assign or rent the Services or any Software; (v) store or transmit infringing, libelous, or otherwise unlawful or tortious material, or store or transmit material in violation of third party privacy rights; (vi) use the Services to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; (vii) interfere with or disrupt the integrity or performance of any Software or third-party data contained therein; (viii) attempt to gain unauthorized access to the Services or any Software or its related systems or networks; (ix) permit direct or indirect access to or use of the Services or any Software in a way that circumvents a contractual usage limit; (x) copy the Services or any Software or any part, feature, function or user interface thereof; (xi) access the Services or any Software in order to build a competitive product or service.

 

2.2. Usage Limits. The Services are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to users and social handles, and the Services may not be accessed by more than that number of users and social handles, (b) a user’s password may not be shared with any other individual, and (c) a user identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Services. If Customer exceeds a usage limit, Sparkcentral may work with Customer to seek to reduce the usage so that it conforms to that limit. If, notwithstanding Sparkcentral’s efforts, Customer is unable or unwilling to abide by a usage limit, Customer will execute an Order Form for additional quantities of the applicable Services promptly upon Sparkcentral’s request, and/or pay any invoice for excess usage in accordance with Section 4 (Payment of Fees).

 

2.3 Customer Responsibilities. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations (including but not limited to policies and laws related to spamming, privacy, intellectual property, consumer and child protection, obscenity or defamation) and will be responsible for Customer’s users compliance with this Agreement. 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 that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Sparkcentral has no obligation to monitor Customer’s use of the Services, Sparkcentral may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

 

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.

 

  1. OWNERSHIP AND CONFIDENTIALITY

 

3.1. Reservation of Rights. Sparkcentral exclusively owns all right, title and interest in and to the Services and Software. Except as expressly granted hereunder, Sparkcentral reserves all rights, title and interests in and to the Services and Software, including all of Sparkcentral’s related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

 

3.2. 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 (including the right to create derivative works of), display and use Customer Content in connection with performing Services. “Customer Content” means any data and other material uploaded or supplied to Sparkcentral by Customer or Customer’s end-users, or collected and processed by or for Customer using the Services, in the course of receiving or using Services.

 

3.3. 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 IP 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 IP Rights in and other legal protections for the Feedback.

 

3.3. Protection of Proprietary 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 and the terms of this Agreement and all Order Forms. 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 after five (5) years following the disclosure thereof or 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.

 

3.4. 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.

 

  1. PAYMENT OF FEES

 

4.1. Fees. Customer will pay Sparkcentral the then applicable fees set forth in the Order Form for the Services (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Sparkcentral reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Term (as defined in the applicable Order Form) or any renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Sparkcentral has billed Customer incorrectly, Customer must contact Sparkcentral no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Except as otherwise specified in an Order Form, payment obligations are non-cancelable and Fees paid are non-refundable and quantities purchased cannot be decreased during the relevant Term.

 

4.2. Payment. Prior to the commencement of Service, Customer shall provide Sparkcentral all relevant information regarding Customer’s credit card or other payment instrument. 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 credit card expiration date) that may occur. Customer hereby authorizes Sparkcentral to bill Customer’s payment instrument in advance on a periodic basis in accordance with the terms of the Order Form, and Customer further agrees to pay any charges so incurred. Sparkcentral may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Sparkcentral thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.

 

4.3. Taxes. Sparkcentral’s fees do not include any taxes, 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 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 4.3, 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.

 

4.4. 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.

 

  1. TERMINATION

 

5.1. Term. The term of this Agreement will begin with the Term listed on the applicable Order Form. The Term will automatically renew for a twelve (12) month Term upon expiration unless either party notifies the other of its desire to terminate this Agreement in writing 30 days prior to the expiration date of the current Term. Upon renewal, Customer will be billed at the then current rate.

 

5.2. Termination. Either party may terminate this Agreement for cause upon thirty (30) days’ written notice to the other party of a material breach of any of the terms or conditions of this Agreement if such breach remains uncured at the expiration of such thirty (30) day period. Customer will pay in full for the Services up to and including the last day on which the Services are provided. In no event will termination relieve Customer of its obligation to pay any fees payable to Sparkcentral for the period prior to the effective date of termination. 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.

 

5.3. Customer Content Portability and Deletion. Upon request by Customer within thirty (30) days after the effective date of termination or expiration of this Agreement, Sparkcentral will make available to Customer electronically all Customer Content. After such thirty (30) day period, Sparkcentral will have no obligation to maintain or provide any Customer Content and may thereafter, unless legally prohibited, delete all Customer Content in its systems or otherwise in its possession or under its control.

 

  1. REPRESENTATIONS, WARRANTIES AND DISCLAIMER

 

6.1 Representations. Each party represents that it has validly entered in this Agreement and has the legal power to do so. Sparkcentral shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Sparkcentral or by third-party providers, or because of other causes beyond Sparkcentral’s reasonable control.

 

6.2 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 AND NONINFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SPARKCENTRAL DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

 

  1. SPARKCENTRAL INDEMNIFICATION

 

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 under the terms of this Agreement; (b) replace or modify the Service to be non-infringing without material decrease in functionality; or (c) if the foregoing options are not reasonably practicable, terminate this Agreement and refund Customer all prepaid Fees for the remainder of the term. Notwithstanding the foregoing, Sparkcentral shall have no liability for any Claim to the extent it is based on (x) Customer’s breach of this Agreement (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 7.1 is Sparkcentral’s sole liability to, and Customer’s exclusive remedy against Sparkcentral for any Intellectual Property Claim.

 

  1. LIMITATION OF LIABILITY

 

EXCEPT FOR A BREACH OF SECTION 2.1 OR SECTION 3, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT 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; (B) FOR ANY LOST PROFITS, REVENUES OR INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID (PLUS ANY ACCOUNTS PAYABLE) BY CUSTOMER TO SPARKCENTRAL FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.

 

  1. GOVERNMENT MATTERS

 

Customer 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. 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.” 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 the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

 

  1. MISCELLANEOUS

 

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Sparkcentral’s prior written consent. Sparkcentral may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers, amendments or modifications to this Agreement must be in a writing signed by both parties, except as otherwise provided herein. In the event of any conflict or inconsistency between this Agreement and an Order Form, the Order Form shall control. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Sparkcentral in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any legal action or proceeding arising under or brought pursuant to this Agreement will be brought exclusively in the federal or state courts located in California and Customer and Sparkcentral irrevocably consent to the personal jurisdiction and venue there.

 

 

EXHIBIT A

 

SERVICE LEVEL AGREEMENT OPTIONS

 

The Customer is entitled to the support level option indicated on the applicable Order Form.

Gold Support

Platinum Support

Availability:

Sparkcentral will make technical support available to Customer within the following time frames and means of contact:

M-F, 9am-5pm Pacific Time email support for non Sev 1 requests (excludes weekends and holidays)#

24x7x365 email support for Sev 1^

24×7 access to Customer Support Help Center

24×7 monitoring by Sparkcentral of platform

Response Times:

Sparkcentral will respond within the timeframes set forth below, depending on the Severity Level, starting from the time Customer notifies Sparkcentral:

30 minutes Response for Sev 1 requests*^

4 business hours Response for Sev 2 requests**#

1 business day Response for Sev 3 requests***#

2 business days Response for Sev 4 requests****#

Resolution Times:

6 hours Resolution for Sev 1 requests*^

14 business days Resolution for Sev 2  requests**#

60 business days Resolution for Sev 3 requests***#

N/A for Resolution for Sev 4 requests****#

Availability:

Sparkcentral will make technical support available to Customer within the following time frames and means of contact:

24×5 email and phone support for non Sev 1 requests (excludes weekends and holidays)%

24x7x365 email and phone support for Sev 1++

24×7 access to Customer Support Help Center

24×7 monitoring
by Sparkcentral of platform

Response Times:

Sparkcentral will respond within the timeframes set forth below, depending on the Severity Level, starting from the time Customer notifies Sparkcentral:

15 minutes Response for Sev 1 requests*++

4 business hours Response for Sev 2 requests**%

12 business hours Response for Sev 3 requests***%

1 business day Response for Sev 4 requests****%

Resolution Times:

3 hours Resolution for Sev 1 requests*++

7 business days Resolution for Sev 2 requests**%

30 business days Resolution for Sev 3 requests***%

N/A for Resolution for Sev 4 requests****%

Definitions

* Sev 1 (Critical Business impact): System-wide outage. Platform is so severely impacted that customers cannot reasonably continue work.

** Sev 2 (Significant Business impact): Major impact to production workflow. Some features are unavailable with no clear or acceptable workaround.

*** Sev 3 (Minimal Business impact): Minor impact to production workflow. Some features are unavailable, but a workaround exists or features are not critical to operational functionality.

**** Sev 4 (Normal Business impact): No impact to product usage. Inquiries such as How-To’s, general questions, enhancement requests, other.

# Gold Support regular business hours: Monday – Friday, 9am – 5pm Pacific Time (excludes weekends and holidays)

^ Gold Support business hours (Sev 1 only): 24x7x365

% Platinum Support regular business hours: 24×5 (excludes weekends and holidays)

++ Platinum Support business hours (Sev 1 only): 24x7x365

Response: Acknowledgment of initial request/communication

Resolution: Fix or workaround implemented

Severity should be decided by Customer upon sending notification to Sparkcentral based on the level of incident that has occurred. Severity can be adjusted by Sparkcentral depending on the type of request.

The above service level agreement options exclude maintenance (as described below) and any downtime resulting from outages of third party connections or utilities or other reasons beyond Sparkcentral’s control.

Maintenance
Access to Sparkcentral’s platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Sparkcentral or by third-party providers, or because of other causes beyond Sparkcentral’s reasonable control. In the event of scheduled maintenance, Sparkcentral will give at least 48 hours prior notice. Any non-scheduled or emergency maintenance will be communicated immediately.