Terms of service
1.1 Definitions. For purposes of these Terms of Service, in addition to capitalized terms defined elsewhere in these Terms of Service or any capitalized term used but not defined in these Terms of Service, the following defined terms shall have the meanings set forth below:
“Customer” means You and/or the company you represent;
“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. Object Code specifically excludes Source Code;
“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 these Terms of Service 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;
“Term” means the duration these Terms of Service will remain in effect which shall be for an indefinite period without prejudice to the right of SPARKCENTRAL to limit or end access to the Services at any time including, without limitation, at the end of a Trial Period;
“Trial Period” means the limited duration during which SPARKCENTRAL grants you access to the Services on “proof of concept” (POC) basis.
SERVICES AND SUPPORT
2.1. Scope. These Terms of Service govern Customer’s access and use of the Services, including without limitation, access to SPARKCENTRAL’S online platform and any commercial offer by SPARKCENTRAL related hereto.
2.2. Provision of Services. Subject to the provisions of these Terms of Service, SPARKCENTRAL will use commercially reasonable efforts to provide you with the Services and hereby grants you a non-exclusive and limited-term right, on the basis of SPARKCENTRAL’s applicable Intellectual Property rights and licenses, to access and use the Services during the Term except for (i) downtime (of which SPARKCENTRAL will use commercially reasonable efforts to give at least 8 hours electronic notice in the event of planned downtime and which SPARKCENTRAL will schedule to the extent practicable during the weekend hours between 18:00 Friday and 3:00 Monday CET), and (ii) any unavailability caused by circumstances beyond SPARKCENTRAL’s commercially 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, electronic communication network operator or internet service provider failure or delay, or denial of service attack.
2.3. Support Services. Subject to the terms hereof, SPARKCENTRAL will use commercially reasonable efforts to provide Customer with the support services and described in Exhibit 1 of this Agreement. The foregoing will not apply during a Trial Period unless specified otherwise.
2.4. Limited right and license to use SPARKCENTRAL’S API and/or SDK. Subject to Customer’s compliance with the terms and conditions of these Terms of Service, 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 these Terms of Service and any other policies and guidelines published by SPARKCENTRAL from time to time or as agreed between the Parties during the Term.
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) 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 (including by operation of law) or rent the Services; (v) store or transmit infringing, libelous, or otherwise unlawful or tortious material, or store or transmit material in violation of third party privacy or data protection rights; (vi) 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; (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 related 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.
3.2. Customer Responsibilities. Customer represents, covenants, and warrants that Customer will 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 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 a violation of the foregoing or otherwise from Customer’s use of the Services in violation of this Agreement. 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.
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. “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 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 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.
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 these Terms of Service (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.
PAYMENT OF FEES
5.1. Fees. Customer will pay SPARKCENTRAL the applicable fees set forth in Exhibit 3. Except as otherwise specified therein, payment obligations are non-cancelable and amounts paid are non-refundable.
5.2. 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.
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.
5.3. 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.
5.4. 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:
– 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
– 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.
5.5. 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.
TERM AND TERMINATION
6.1. Term. These Terms of Service shall remain in effect during the Term as specified by SPARKCENTRAL which shall be deemed to be undefined if no such limited Term has been specified.
6.2. Termination for Convenience. Unless a specific limited Term is agreed upon, SPARKCENTRAL can terminate the provision of Services and these Terms of Service at any time by giving written notice to Customer. In the event Customer is not paying any Fees for the use of the Services, such notice shall have immediate effect and these Terms of Service are terminated with immediate effect. In the event Customer has paid or is paying Fees for the provision of Services and no fixed Term has been agreed upon, SPARKCENTRAL can terminate these Terms of Service and the provision of Services by giving thirty (30) days’ written notice.
6.3. Termination for Cause. SPARKCENTRAL may terminate these Terms of Service for cause upon thirty (30) days’ written notice to Customer of a specified breach of any of the terms or conditions of these Terms of Service if such breach remains uncured at the expiration of such thirty (30) day period. In the event a breach is deemed uncurable by SPARKCENTRAL in its sole discretion, termination shall be effective with immediate effect.
To the extent any Fees are agreed upon, 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 early termination relieve Customer of its obligation to pay any Fees payable to SPARKCENTRAL for the period prior to the effective date of termination. In the event Customer terminates these Terms of Service for material breach by SPARKCENTRAL, SPARKCENTRAL shall refund Customer the pro rata portion of the prepaid annual fees applicable to the period starting from the termination date and ending on the last date in the prepaid period without prejudice to SPARKCENTRAL’s right to retain the payment pending judicial review.
6.4 Survival. All Sections of these Terms of Service 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.
REPRESENTATIONS, WARRANTIES AND DISCLAIMER
7.1. Representations. Customer and SPARKCENTRAL represent that they have validly entered into these Terms of Service and have the legal power to do so. SPARKCENTRAL is a corporation duly organized and legally existing in good standing under the laws of Belgium. SPARKCENTRAL shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services in a timely and professional manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or unscheduled emergency maintenance either by SPARKCENTRAL or by third-party providers or during an Force Majeure Event.
7.2. Further Representations. Other than during a Trial Period, SPARKCENTRAL represents and warrants that (i) the Services will be provided with commercially reasonable due care and that the Services will comply with the requirements and specifications set forth in these Terms of Service; (ii) the Services will comply with applicable laws and regulations; (iii) it has the necessary expertise and experience to properly perform the Services hereunder; (iv) it has all necessary power, authority, permits, licenses and consents to perform the Services; (v) the performance of the Services hereunder does not violate any other agreement or understanding to which SPARKCENTRAL is a party or to which it may be otherwise bound; and (vii) the Services (excluding the Customer Content) do not and shall not infringe on any third party’s 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. The foregoing shall not apply to any software patents in jurisdictions such as the USA.
7.3. Representations by Customer. Customer represents and warrants that (i) it will comply with applicable laws and regulations; (ii) it has all necessary permits and licenses required to operate its business; (iii) its performance of these Terms of Service does not violate any other agreement or understanding to which Customer is a party or to which it may be otherwise bound; and (iv) Customer Content does not and shall not infringe on any third party’s 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. The Customer furthermore represents that if Customer is entering into these Terms of Service 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. If Customer does not have such authority, or if Customer does not agree with these terms and conditions, Customer must not accept these Terms of Service 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.
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. THIS SECTION 9 SHALL BE GOVERNED BY THE LAW OF THE STATE OF DELAWARE, USA.
10.2. Consequences of Force Majeure. For any Force Majeure Event, SPARKCENTRAL shall not be considered to be in breach for as long as such Force Majeure Event prevails and prevents it from performing provided SPARKCENTRAL continues to use its commercially reasonable, good faith and diligent efforts to recommence performance or observance whenever and to whatever extent possible without delay.
10.3. Notification of Force Majeure Event. SPARKCENTRAL shall take reasonable measures to notify Customer of the existence of the Force Majeure Event either directly by e-mail or on its website.
PROTECTION AND PROCESSING OF PERSONAL DATA
11.1. Data Controller and Data Processor. Customer and SPARKCENTRAL agree that within the scope of these Terms of Service, 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.
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 these Terms of Service and will be prohibited except to the extent expressly permitted by these terms of this Service.
13.1. No Assignment. These Terms of Service are not assignable (including by operation of law), transferable or sub-licensable by Customer except with SPARKCENTRAL’S prior written consent. SPARKCENTRAL may transfer and assign any of its rights and obligations under these Terms of Service without consent of Customer.
13.2. Waivers. All waivers of these Terms of Service must be in a writing except as otherwise provided herein.
13.3 Modifications. SPARKCENTRAL has the right to revise, restate or amend these Terms of Service at any time in its sole discretion. Customer will be bound by the revised or amended Terms of Service as soon as it was provided the opportunity to review the revised or amended Terms of Service (which will be made available on SPARKCENTRAL’S website and/or notified to Customer by e-mail) unless it objects to the revised or amended Terms of Service within seven (7) days following its opportunity to review said revised or amended Terms of Service. Continued use of the Services after said seven (7) days shall be construed as an unconditional and unreserved acceptance by Customer to be bound by the revised or amended Terms of Service. In the event Customer objects to the revised or amended Terms of Service during said seven (7) day period, SPARKCENTRAL may terminate these Terms of Service and continued use of the Services with immediate effect unless the parties agree otherwise.
13.4. Independent Contractors. No agency, partnership, joint venture, or employment is created as a result of these Terms of Service and Customer does not have any authority of any kind to bind SPARKCENTRAL in any respect whatsoever.
13.5. Notices. 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. As a rule, notifications required under these Terms of Service are sent by e-mail and Customer acknowledges and accepts that e-mail constitutes valid and binding notification and that it will take all required measures to monitor and read any incoming e-mails.
13.6 Acceptance of Terms of Service and its Exhibits. Customers acknowledges and accepts that it has duly, validly and completely consented with and accepted these Terms of Service by the 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.
13.8. Competent Forum. Any legal action or proceedings arising under or brought pursuant to these Terms of Service (including any closely related tort actions) shall be brought before the competent Courts of Antwerp, section Antwerp, BELGIUM which will have exclusive jurisdiction and Customer and SPARKCENTRAL irrevocably consent to the personal jurisdiction and venue there. In the event the aforementioned choice of forum and jurisdiction is deemed to be unenforceable or invalid by any US Court, these Terms of Service shall be governed by the laws of the State of Delaware, USA without regard to its conflict of laws provisions. Any legal action or proceeding arising under or brought pursuant to these Terms of Service which a court determined cannot be brought before the Courts of Antwerp, Belgium, will be brought exclusively in the federal or state courts located in Delaware and Customer and SPARKCENTRAL irrevocably consent to the personal jurisdiction and venue there in such case.