Written on August 6th, 2020
1.1 Subject to the terms and conditions of this Agreement and the parties’ compliance therewith, MetaSpark will provide Customer with access to the Services through the internet for Customer’s internal, non-commercial purposes only. The Services are subject to modification from time to time at MetaSpark’s sole discretion, for any purpose deemed appropriate by MetaSpark. MetaSpark will use reasonable efforts to give Customer prior written notice of any such modification.
1.2 MetaSpark will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, MetaSpark reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to MetaSpark.
1.3 Subject to the terms hereof, MetaSpark will provide reasonable support to Customer for the Services from Monday through Friday during MetaSpark’s normal business hours.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Services or Software; (iii) use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal use for its own internal benefit; (iv) use the Software or Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; or (v) use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights (including but not limited to those related to privacy, intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation).
2.2 Customer will cooperate with MetaSpark in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as MetaSpark may reasonably request. Customer will also cooperate with MetaSpark in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.3 Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to MetaSpark.
2.4 Although MetaSpark has no obligation to monitor the content provided by Customer (hereafter “Content”) or Customer’s use of the Services, MetaSpark may do so and may remove any such Content or prohibit any use of the Services it believes may infringe or violate the rights of a third party or violate any applicable law. If MetaSpark receives any notice or claim from a third party that any Content, or activities hereunder with respect to any Content, may infringe or violate the rights of a third party or violate any applicable law (a “Claim”), Customer will indemnify MetaSpark from all liability or damages in connection with any such Claim, as incurred, provided that Customer is notified by MetaSpark of such Claim in a timely matter and given the opportunity to resolve, settle or contest such Claim. Customer will have no obligation or liability to MetaSpark for such a Claim in the event that MetaSpark opts to settle the Claim directly with the third party.
2.5 Customer acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). MetaSpark is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. MetaSpark does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
3.1 Each party (the “Receiving Party”) understands and agrees that the other party (the “Disclosing Party”) has disclosed or may disclose confidential information in connection with this Agreement relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction 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. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, MetaSpark may aggregate data and use such aggregated data to evaluate and improve the Services and otherwise for its business purposes.
3.3 Neither party will have the right to disclose the existence or the terms and conditions of this Agreement, without the prior written consent of the other party, with the exception of any filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors and will duly advise the other party as soon as possible.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Notwithstanding anything to the contrary herein, (A) each party will retain all rights in the intellectual property rights or the Proprietary Rights that it owned or developed prior to the Effective Date or acquired or developed after the Effective Date, and (B)MetaSpark alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software (collectively “Feedback”), which are hereby assigned to MetaSpark. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Customer is hereby granted a non-exclusive, nontransferable, revocable right to use the Resulting Data for its internal analysis purposes only. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.
4.2 MetaSpark shall indemnify and hold Customer harmless from liability to unaffiliated third parties resulting from infringement by the Service or Software of any United States patent or any copyright or misappropriation of any trade secret, provided MetaSpark is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; MetaSpark will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by MetaSpark, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified by Customer after delivery by MetaSpark, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of is not strictly in accordance with this Agreement and all related documentation. Customer will indemnify MetaSpark from all damages, costs, settlements, attorneys' fees and expenses related to any claim of infringement or misappropriation excluded from MetaSpark's indemnity obligation by the preceding sentence.
5. PAYMENT OF FEES
5.1 Customer will pay MetaSpark the applicable fees as set forth on the order form to which these terms and conditions are attached (or, if applicable, such the webpage or electronic site in which these terms were presented by MetaSpark) (the “Order Form” and, such fees, the “Fees”). If Customer use of the Services exceeds the Service Capacity set forth on the Order Form, Customer will be invoiced at the end of each calendar month for the excess usage over the Service Capacity, at the rate set forth on the Order Form, and Customer agrees to pay the additional fees without any right of set-off or deduction. To the extent applicable, Customer will pay MetaSpark for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the Payment Schedule and the Method of Payment. If not otherwise specified, payments will be due within sixty (60) days of invoice and are nonrefundable.
5.2 Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on MetaSpark's net income) unless Customer has provided MetaSpark with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to MetaSpark on account thereof.
6.1 Subject to earlier termination as provided below, this Service Agreement is for the Service Term as specified in the Order Form.
6.2 In addition to any other termination rights granted to Customer herein, Customer may terminate this Agreement, or any Order Form enter into under this Agreement without cause upon a at least thirty (30) days prior written notice to MetaSpark.
6.3 In the event of any material breach of this Agreement (including any failure to pay), the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days (or ten (10) days in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business.
6.4 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
7. CLIENT SOFTWARE SECURITY
MetaSpark represents and warrants that it will not knowingly include, in any MetaSpark software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, MetaSpark fails to comply with the warranty in this Section, Customer may promptly notify MetaSpark in writing of any such noncompliance. MetaSpark will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, in addition to other remedies available to Customer under this Agreement and at law, Customer may terminate this Agreement.
8. WARRANTY DISCLAIMER
EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, THE SERVICES AND METASPARK PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. METASPARK (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
EXCLUDING BREACHES OF SECTIONS 3 OR 4 OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF METASPARK, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (A) $5,000 AND (B) THE FEES PAID TO METASPARK HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), 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. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by MetaSpark 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 Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
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 MetaSpark’s prior written consent. MetaSpark may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that 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, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. 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 MetaSpark 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 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; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. MetaSpark will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in Los Angeles, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.
This Privacy Statement (“Privacy Statement”)explains how METASPARK Corporation (“METASPARK”) uses personal information(“Personal Information”) and applies to all users (“users”) who access, view, visit, download, or otherwise interact with https://metaspark.io (the “Site”). By visiting the Site, you are accepting the practices described in this Privacy Statement. If you do not agree to the METASPARK practices, do not access, view, visit, download, or otherwise interact with theSite. If you have any questions or comments concerning METASPARK’s PrivacyStatement, please contact us by sending an email to info (at) MetaSparkcorp.com. You can also contact METASPARK via postal mail at: 8605 Santa Monica Blvd #44942
West Hollywood, California USA 90069.
OurPrivacy Statement is organized as follows:
1. Personal Information METASPARK gathers
2. How METASPARK Collects Personal Information
3. How METASPARK Uses Personal Information
4. When and Why METASPARK Discloses PersonalInformation
5. Tracking Technologies
6. Choice and Control
7. Security of Personal Information
8. Privacy Practices of Third Parties
9. METASPARK Blog
10. Changes to this Privacy Statement
1.Personal Information METASPARK gathers
“Personal Information”is information that can be used to identify, locate, or contact an individual. METASPARK collects the following types of Personal Information:
Contact Information.Contact Information allows METASPARK to communicate with you. Examples ofContact Information include, but are not limited to, your name, accurate postal addresses, valid email address, or other addresses at which you receive communications from or on behalf of METASPARK.
TransactionInformation. METASPARK automatically receives and records some information from your browser when you visit the site, such as your IP address, cookies and data about which pages you visit on the site through the use of log files provided by our third-party tracking-utility partners. This information helps us analyze and understand how the site works for users. Information that is gathered includes, but is not limited to, information about how you interact with METASPARK, information about how you use METASPARK’s Sites, email, other communications, and applications, and how you interact with other users and METASPARK business partners.
Mobile LocationInformation. If you have permitted your mobile or other location-aware device o transmit location data, METASPARK collects Mobile Location.
Posted Information. If you chose to post a comment on our blog, we may collect information regarding your name and the content of your post. It is important to note that any content you post on the blog is publicly displayed and will be seen by other users of the Site.
2.How METASPARK Collects Personal Information
METASPARK prompts you to provide Personal Information (including Contact Information) when you use METASPARK or otherwise interact with the Site or contact METASPARK.
METASPARK also collectsTransaction Information if and when you contact METASPARK via telephone, email, or other methods of communication.
3.How METASPARK Uses Personal Information
We may use PersonalInformation to enhance to enhance your user experience, to help us better understand you, to help us customize offers, blog topics, or posts that may be of interest to you, and to help us otherwise enhance the Site.
METASPARK uses PersonalInformation to:
· Identify and authenticate users;
· Facilitate transactions;
· Operate and improve the Site;
· Connect with you on social media (such as Facebook, LinkedIn, Google+ or Twitter);
· Contact you by phone or email;
· Personalize and continually improve users’ METASPARK experience;
· Provide you with suggested information based on variables such as stated preferences, interests, business activities, and/or location;
· Send you technical notices, updates, alerts and support and administrative messages service bulletins, or marketing;
· Evaluate additional services, items, or offerings that may be of interest to users;
· Track transactions and perform other analytics;
· Communicate and provide additional information that may be of interest to you about METASPARK partners or third parties; and
4.When and Why METASPARK Discloses Personal Information
METASPARK will not disclose your Personal Information to third parties without your explicit consent, except as specified in this Privacy statement. METASPARK will disclose your Personal Information when:
· Working with companies and service providers(i.e. HubSpot or other companies that process billing, website hosting, or analytics performance in furtherance of the purposes described in Section 3(“How METASPARK Uses Personal Information”) above.
· METASPARK employs other companies to perform tasks on METASPARK’s behalf and therefore METASPARK must share your PersonalInformation with these companies to provide services to you. Examples include but are not limited to processing payments, handling billing disputes and collections, analyzing data, providing marketing assistance and providing customer service. METASPARK may partner with third-party services for fraud prevention and/or identity verification.
· Enforcing METASPARK’s rights or protect METASPARK property and intellectual property;
· Protecting the rights, property or safety of others, investigate fraud, respond to a government request.
· METASPARK believes in good faith that it must disclose such information to prevent imminent physical harm or financial loss.
· METASPARK believes in good faith that it must disclose such information to commence an investigation or take action regarding illegal activities or suspected fraud.
· METASPARK believes in good faith that it must disclose such information per auditing, compliance, and corporate governance functions.
· METASPARK believes in good faith that it must disclose such information to defend METASPARK in litigation or a regulatory action.
· METASPARK believes in good faith that it must disclose such information, or advised to do so by law, such as in response to a subpoena, or similar legal process, including to law enforcement agencies, regulators, and courts in the United States and other countries where we operate.
METASPARK will not sell your Personal Information to third parties unless METASPARK is in the process of entering into a merger with another business, acquisition of another business, or the sale of all or a portion of METASPARK’s assets and the information is needed to support the sale or transfer of business assets. If METASPARK is involved in a merger, acquisition, or sale of all or a portion of its assets, you will be notified via email and/or prominent notice on our Site of any change in ownership or uses of your Personal Information, as well as any choices you may have regarding your Personal Information before it becomes subject to a new privacy statement.
This Privacy statement only governs when and why METASPARK discloses Personal Information. ThisPrivacy statement does not apply to the practices of third parties that METASPARK does not own or control, or individuals that METASPARK does not employ or manage. The use of your Personal Information by third parties that you access through the Site is governed by the privacy policies of such parties and is not subject to METASPARK’s control. METASPARK is not responsible for the privacy or security practices of other websites on the Internet, even those linked to or from the METASPARK Site. We encourage you to ask questions before you disclose your personal information to others.
METASPARK may disclose information about you that is not personally identifiable. For example, METASPARK may provide our partners, (such as Hubspot), or other third parties with reports that contain aggregated and statistical data about METASPARK users.
6.Choice and Control
While METASPARK does need to collect certain information to make your METASPARK experience personalized and to conduct transactions for you, METASPARK wants to give you the ability to control how your information is provided and shared.
· Email Preferences. For various reasons, METASPARK may contact you about our services or your activity. If you no longer wish to receive emails from METASPARK you may opt out of the email as indicated on each and every email correspondence.
· Cookies and Tracking Devices. You manage how your browser handles cookies and other tracking devices by adjusting the privacy and security settings on your browser. If accessing METASPARK by a mobile device, you may manage the information your mobile device shares, such as cookies, tracking technologies, and location information, by adjusting your mobile device privacy and security settings.
7.Security of Personal Information
METASPARK strives to use commercially acceptable means to protect your personal information, however, no method of transmission over the Internet, or method of electronic storage, is 100% secure and therefore METASPARK cannot guarantee absolute security of your personal information. METASPARK strives to maintain a system that reasonably safeguards Personal Information.
8.Privacy Practices of Third Parties.
This Privacy Statement describes the collection, use, and disclosure of information by METASPARK through the Site. METASPARK utilizes third parties to provide services to users and also provides links from the Site to other websites. These third parties may have their own privacy policies and may collect, use, and distribute information differently than METASPARK. METASPARK encourages all users to read the privacy policies of all third parties.
10.Changes to this Privacy Statement
METASPARK may, from time to time, in METASPARK’s sole, absolute, and unfettered discretion, update this Privacy Statement to clarify our practices or to reflect new or different privacy practices. We encourage all users to periodically review the Privacy Statement.
The METASPARK logo, and other marks, including the names of various products and services described within and offered by companies represented by METASPARK and its subsidiaries are service marks of these companies. Permission to use, copy and distribute these materials without fee is hereby granted, for non-commercial purposes, provided that the material is unaltered and METASPARK copyright notice appears in all copies. Use of this site shall be governed by and construed in accordance with the laws of our state of business, without giving effect to any principles of conflicts of laws. Any dispute concerning this site shall be subject to the exclusive venue of a court of competent jurisdiction in our state of business. Should any provision of our terms and conditions be held invalid, unlawful or for any reason unenforceable, then the invalid, unlawful or unenforceable provision shall be severable from the remaining provisions.Such invalid, unlawful or unenforceable provision shall not affect the validity or enforceability of the remaining provisions.
8605 Santa Monica Blvd #44942
West Hollywood, California