Terms of Service

Last updated July 24, 2017

 

1. GENERAL

1.1. TERMS OF SERVICE.  These Terms of Service (“Terms of Service”) govern your access to and use of Industry services including the Spark Publisher service and any other services, plans, features, products, content, applications, software, hardware, maintenance, customer service, and training offered by us from time to time (collectively the “Service”) identified in one or more Industry sales order documents, including but not limited to budget proposals, invoices, statements of work, work contracts, or online e-commerce transactions (“Sales Order” or “Sales Orders”) or made available by us from time to time.

1.2. ACCEPTANCE.  By using or visiting the Service, you accept and agree to be bound by (1) these Terms of Service, (2) all Sales Orders which are incorporated herein by reference and (3) our Privacy Policy, which is incorporated herein by reference (collectively referred to as the “Agreement”).  This Agreement constitutes a binding agreement between the customer (“Customer,” “you,” and “your”) and Industry Corporation (“Industry,” “us,” “we,” and “our”).  This Agreement represents the parties’ entire understanding regarding the Services and shall govern over any prior oral or written agreement or discussions or different or additional terms or conditions of any purchase order, invoice or other non-Industry ordering document, including the ordering documents of Industry’s authorized resellers of the Service. No other terms or conditions of any purchase order, invoice or other non-Industry ordering document shall apply to the Services, unless agreed to in writing by both parties or unless such ordering document is from an authorized reseller of the Services.

 

2. OUR SERVICES

2.1. SERVICES. The “Service” refers to either the Spark Publisher (Cloud) service or Spark Publisher (Onsite) service. Subject to your compliance with this Agreement, Industry (d/b/a Spark Screens) grants you:

a. A non-transferable, non-exclusive, worldwide right to access and use the Spark Publisher (Cloud) service during the term set out in the applicable Sales Order (“Subscription Term”); OR,

b. A non-transferable, non-exclusive, perpetual right to use the Spark Publisher (Onsite) instance or instances set out in the applicable Sales Order.

2.2. SPARK ACCOUNTS.  In order to use the Service, you will have to register and create an Account with us and provide one or more names, email addresses, login usernames, and passwords (each a “Spark Profile”).  You are responsible for maintaining the confidentiality of your Spark Profiles.  You agree not to use the Spark Profiles, usernames or passwords of any third party or disclose your Spark Profiles, usernames or passwords to any third party.  You are responsible for any and all activity that occurs on your Account. If you suspect any unauthorized use with your Account, you must notify us immediately.  You agree to provide us with correct and complete Account information at all times and inform us of any changes to the information you have provided. We will, in accordance with our Privacy Policy, keep your usernames and passwords confidential. 

2.3. USAGE LIMITS. Services that we provide are subject to usage limits and restrictions.  Each Sales Order defines specific usage limits including, without limitation, the number of computer devices on which the Services may concurrently run interfaces (the purchased licenses).  You agree to use the Services within the usage limits set out in the Sales Order.  It is your responsibility to ensure that you do not exceed those limits and restrictions. Extra charges will apply if you exceed any usage limits at our then-current usage fees.  

2.4. NECESSARY EQUIPMENT TO USE THE SERVICES.  You are responsible for obtaining and maintaining all telecommunications, broadband, computer hardware, software, equipment, and services needed to connect to, access and use the Services, except for such products that are listed in a Sales Order and sold to you by Industry.

 

3. FEES AND PAYMENT

3.1. FEES. You agree to pay all fees set out in a Sales Order.  All fees are non-cancellable and non-refundable and are based on Services purchased and not actual usage (including software license terms). For the avoidance of doubt, you shall not be entitled to a refund in the event of unused Services.  Unless otherwise agreed between you and us, charges may be paid by wire transfer, standing order, cheque, or credit card.  Credit card payments will be subject to an additional 3% service fee.

3.2. PAYMENT TERMS. Unless otherwise set out in the Sales Order, Service fees are payable on receipt of invoicing, and annually in advance of the annual Services license period, as applicable. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies or duties (excluding taxes based on Industry’s income), even if such amounts are not listed on a Sales Order. Customer shall pay all fees in the currency set out in their respective Sales Order, or such other currency as agreed to in writing by the parties without set-off or deduction.

3.4. OVERDUE CHARGES.  Unpaid invoices that are not the subject of a written good faith dispute are subject to interest at a rate of 1.5% per month on the outstanding balance, or the legal maximum interest rate, whichever is lower, plus all reasonable expenses of collection, in addition to any other remedies Industry may have.

3.4. SUSPENSION RIGHTS. We reserve the right to immediately terminate the Services if: (i) the billing or contact information provided by you is false or fraudulent; or (ii) you fail to make any payment due within 10 business days after we have provided you with notice of such failure.  Any suspension of the Services by us under this section shall not relieve you of your payment obligations under this Agreement.  We will not be liable to you nor to any third party for any suspension of the Services resulting from your non-payment of fees.

 

4. SPARK CONTENT AND LICENSE

4.1. SPARK CONTENT. The Services contain Content, Documentation, and Software owned by Industry, its suppliers or licensors (“Spark Content”). Industry, its suppliers and licensors own and retain all rights, including all intellectual property rights, in and to the Services and the Spark Content.  The Services and Spark Content are or may come to be protected by copyright, trademark, patent, trade secret and other laws.

4.2. OWNERSHIP AND LICENSE.  The Services and Spark Content are licensed and not sold to you, except in the instance of a one-time hardware sale, or as specified in a Sales Order on a case by case basis.  All rights not expressly granted to you in this Agreement are reserved and retained by us. You may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, use or sell any Spark Content or other Content (other than Customer Content) appearing on or through the Services. You must not modify, build upon or block any portion or functionality of the Services.  We grant you a limited, revocable, non-sublicensable license to reproduce and display the Spark Content (excluding software code) in connection with using the Service during the Subscription Term, if applicable, or perpetually otherwise. No Service, nor any part of any Service, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent.  You may not misuse the Services. You may use the Services only as permitted by law. The licenses granted by us terminate if you do not comply with this Agreement.

4.3. RESTRICTIONS. Customer shall not (and shall not permit others to): (i) license, sub-license, sell, transfer, distribute or share the Services or Spark Content or make any of them available for access by third parties; (ii) create derivative works based on or otherwise modify the Services or Spark Content; (iii) disassemble, reverse engineer or decompile the Services or Software or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services; (iv) access the Service or Spark Content in order to develop a competing product or service; (v) use the Service or Spark Content to provide a service for others; (vi) use the Spark Platform to operate more or different types of applications than permitted under the applicable Sales Order; (vii) remove or modify a copyright or other proprietary rights notice on or in the Services or Spark Content; (viii) use a computer or computer network to cause physical injury to the property of another; (ix) violate any Applicable Law; (x) disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the Services; (xiv) intentionally include, send, store or run software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs from the Services; (xi) intentionally cause a computer to malfunction, regardless of how long the malfunction persists; or (xii) alter, disable, or erase any computer data, computer programs or computer software without authorization.

4.4. FEEDBACK.  If you or an end-user send information to us, for example feedback, comments or suggestions, you grant us a perpetual, sub-licensable, royalty-free, transferable license to use, modify and incorporate this information into our products and Services.  You also agree to waive all moral rights in and to that information.   

4.5. MODIFICATIONS. We are entitled to modify or update Service, if applicable, from time to time in order to adapt it technically, to change menu interfaces or layouts or visualizations, or to expand or limit functionality in a way that does not materially alter the Services.

 

5. CUSTOMER CONTENT AND LICENSE

5.1. CUSTOMER CONTENT.  As a Spark Account holder using the Spark Publisher (Cloud) Service, you may submit and publish Customer Content on the Spark Platform.  Customer Content is the Content that you upload to the Service.  Industry and the Service are passive conduits of the Customer Content.  You are exclusively responsible for all Customer Content and the consequences of submitting and publishing your Content on the Service. We do not verify the accuracy, quality, content or legality of Customer Content.  We may, but are under no obligation to, monitor, view, or analyze any Customer Content.  We are not responsible for preventing or identifying infringement of intellectual property rights or non-compliance with Applicable Laws.  Industry will not be liable, directly or indirectly, in any way for any damage or loss caused or alleged to be caused by or in connection with Customer Content.

5.2. RESPONSIBILITY TO OBTAIN CONSENTS.  You are responsible for obtaining all necessary consents, licenses and waivers required to create, record, submit, publish and use Customer Content in connection with the Services.  These may include consents, licenses and waivers from: (i) copyright owners; (ii) public performance rights collection organizations; and (iii) the owners of musical compositions and sound recordings embodied in the Customer Content.  In addition, you are responsible to pay all applicable royalties, fees and other amounts owing to any Person in connection with the use of any Customer Content.

5.3. OWNERSHIP AND LICENSE.  As between you and us, you retain all rights of ownership in the Customer Content.  By uploading, displaying or publishing your Content to the Service, you grant us a worldwide, royalty-free, fully paid-up, non-exclusive, sublicensable and transferable license to use, reproduce, modify, distribute, display and perform your Content in connection with the Services.  This license is necessary for Industry to perform the Services.  For example, without the right to modify Customer Content, we would not be able to format Content to satisfy technical requirements for optimal video playback across various platforms, devices and players.   This license allows us to: (i) deliver Customer Content in accordance with the preferences set by Customer utilizing the Spark Platform; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of Customer Content; (iii) use, enhance, personalize, exhibit, broadcast, publish, publicly display, publicly perform, distribute, create derivative works of, promote, copy, store, and/or reproduce (in any form) Customer Content on or through the Service; and (iv) utilize Customer Content to test Industry’s internal technologies and processes. You also grant us, and allow us to grant each end-user or other user of the Services, a non-exclusive license to view Customer Content through the Service. We reserve the right to retain (but not display, distribute or publish) server copies of Customer Content that have been removed or deleted from the Services.  We also reserve the right to copy, use, modify and publish a copy of any personalized interfaces that you may create on our website for marketing and promoting our personalized interface technology.

5.4. REPRESENTATIONS AND WARRANTIES.  You represent and warrant that: (i) you own or have the necessary licenses, rights, consents and permissions to use and publish the Content you submit; (ii) the uploading of your Content on the Service and the licenses granted to Industry under this Agreement do not and will not violate the rights of any Person or organization; and (iii) no payments of any kind shall be due by Industry to any Person or organization for the use or distribution of Customer Content.

5.5. PROHIBITED CONTENT.  Some Content is prohibited on the Service.  You agree that you will not upload or use in connection with the Service any prohibited Content including, without limitation, Content that: (i) is pornographic, sexually explicit or offensive or contains a link to an adult website; (ii) contains graphic or gratuitous violence; (iii) conveys a message of hate against any individual or group; (iv) encourages or glorifies drug use; (v) is predatory in nature, or is submitted for the purpose of harassment or bullying; (vi) is generally considered unwanted “Spam” communication; (vii) promotes or incites racism, bigotry, hatred or physical harm of any kind against any group or individual; (viii) constitutes or promotes information that Customer knows is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (ix) furthers or promotes criminal activity or provides instructional information about illegal activities; or (x) violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any Person or organization. We reserve the right to investigate and take appropriate action against anyone who, in our sole discretion, violates these provisions including removing the offending Content without prior notice, terminating or suspending Customer’s Account or access to the Service and/or reporting such Content or activities to law enforcement authorities.

5.6. CONTENT PRESERVATION AND DISCLOSURE. We may preserve and store Customer Content and/or disclose Customer Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal processes; (ii) comply with this Agreement; (iii) respond to claims that any Customer Content violates the rights of any Person or organization; or (iv) protect the rights, property, or personal safety of Industry, End Users and/or the public.

 

6. CUSTOMER DATA AND END USER DATA

6.1. CUSTOMER DATA. The Customer Data is property of the Customer and all rights not granted to Industry hereunder shall remain with Customer.  You grant us a limited, personal, non-sublicensable, non-exclusive, non-transferable, worldwide right to use Customer Data during the Subscription Term in accordance with the terms and conditions of this Agreement. Customer represents and warrants to Industry that its collection and use of the Customer Data (including Customer Data used by the Service in connection with generating the Non-Anonymized End User Data) is and will continue to be in compliance with Applicable Laws.  Except as set out in this Agreement, we will not share any Customer Data with any third parties unless you have given your prior consent.  However, sometimes we share Customer Data with third parties that carry out tasks on our behalf (like billing or cloud network hosting) provided appropriate restrictions are in place that prevent Customer Data from being used, disclosed or shared consistent with the restrictions set out in this Agreement.

6.2. RESPONSIBILITY TO OBTAIN CONSENTS.  You are exclusively responsible for obtaining all necessary rights, releases and consents from End Users and other third parties to allow Customer Data and End User Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant Industry the rights set out in this Agreement to us.  We rely on you to obtain all consents from, and provide all disclosures to, End Users as required under Applicable Law.  By using the Services, you represent and warrant to Industry that you have obtained all necessary rights, releases and consents from End Users and other third parties to allow Customer Data and End User Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant us the rights set out in this Agreement.

6.3. END USER DATA.  The Service contains software (“Analytics Code”) to track, capture and aggregate anonymized End User Data (“Anonymized End User Data”) and non-anonymized End User Data (“Non-Anonymized End User Data”). Through such Analytics Code, we may collect information about you and your End Users in order to provide the Services, prepare and analyze statistics, produce reports and improve and customize Services.  We have the right to use the Anonymized End User Data and Non-Anonymized End User Data in accordance with and subject to the terms of this Agreement.  By using the Services, you grant us a worldwide, non-exclusive, perpetual, royalty-free license to: (i) collect and analyze information about you and your End Users; (ii) generate statistics and produce reports for you based on such information; and (iii) make recommendations for improving and customizing Services according to End User’s preferences, statistics and usage activities.  You represent and warrant that you have the full power, authority and all rights necessary to grant us the licenses granted to us under this Agreement and you agree to indemnify, defend and hold us harmless from and against any damages, losses, liabilities and expenses (including reasonable attorneys’ fees) relating to a claim by any End User that the collection and/or use of such End User Data by us in connection with the Services infringes such user’s rights.

6.4. NON-ANONYMIZED END USER DATA. You own all rights in the Non-Anonymized End User Data and grant us a limited, personal, non-sublicensable, non-exclusive, worldwide right to use the Non-Anonymized End User Data during the Subscription Term for the purpose of fulfilling our obligations under this Agreement and providing and customizing the Services. Industry will not share any of the Non-Anonymized End User Data with any third parties without the consent of Customer and shall take all reasonably appropriate confidentiality and security measures to protect such Non-Anonymized End User Data.

6.5. ANONYMIZED END USER DATA. We own all rights in the Analytics Code and in the Anonymized End User Data. We use Anonymized End User Data in order to generate anonymous reports, logs, and data regarding the Service and have the right to use and disseminate all Anonymized End User Data during or after the Subscription Term for any purpose including without limitation to develop and improve our products and services and to create and distribute reports and other materials.

 

7. PRIVACY AND SECURITY

7.1. PRIVACY POLICY.  Our collection and use of your information and information regarding End Users is governed by our Privacy Policy. You understand that through your use of the Services, you consent to the collection and use of this information, including the transfer of this information to Canada and/or other countries for storage, processing and use by us. As part of providing you the Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services and your Account.

7.2. SECURITY. For cloud-hosted Spark Accounts, the Services provided by us are from data center facilities to which Users have remote access via the internet in conjunction with certain offline components provided by us under this Agreement. We implement security procedures to help protect your Customer Data from security attacks. However, you understand that use of the Services (including use of onsite and cloud-hosted Spark Accounts) necessarily involves transmission of your Customer Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of your Customer Data lost, altered, intercepted, copied or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your Customer Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.  If you become aware of any security breach in the Services, you agree to promptly notify us.  We agree to notify you in the event of a detected security breach.  All data at rest is encrypted and all data is encrypted in transit.

7.3. NETWORKS. Technical processing and transmission of the Service, including Customer Content, may involve: (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.  Use of or connection to the internet provides the opportunity for unauthorized Persons to circumvent security precautions and illegally gain access to the Service, the Customer Data, the End User Data or the Customer Content. We do not guarantee the privacy, security or authenticity of any content, data or information transmitted over or stored in any system connected to the internet.  

7.4. MAINTENANCE AND REPAIRS.  We use commercially reasonable efforts to ensure that availability of the Services will be uninterrupted and that transmissions will be error-free. However, due to the nature of the internet, this cannot be guaranteed. Also, your access to Services may be occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of new facilities or services. We will attempt to limit the frequency and duration of any such suspension or restriction, and we will use commercially reasonable efforts to alert or notify you in the event of any scheduled or nonscheduled suspension of Services.  Due to the nature of technical outages, we cannot guarantee notice prior to unplanned outages.  We will not be held responsible for any delay or failure to comply with our obligations under these conditions if the delay or failure arises from any cause which is beyond our reasonable control.

 

8. SUBCONTRACTORS. We may use third party subcontractors to provide limited parts of the Services from time to time, including data storage and processing and content delivery (“Subcontractors”). You consent to us subcontracting these services to the Subcontractors, provided that Industry shall ensure that these Subcontractors comply with the terms of this Agreement applicable to Industry.

 

9. THIRD PARTY SERVICES

9.1. THIRD PARTY SERVICES. The Services contain features or functionality designed to interact and/or integrate with software, applications or services that are provided by a Person other than Industry (“Third Party Services”). For the avoidance of doubt, Third Party Services exclude services whereby Industry has subcontracted its responsibilities hereunder. To use these features, you may be required to obtain access to such Third Party Services from their providers, pay fees to the provider of such Third Party Services and/or agree to separate license agreements or terms with those providers. In order to use the Services, you may be required to grant us access to your accounts to such Third Party Services. You expressly permit us to share Customer Content in conjunction with the Third Party Services and Customer Data with Third Party Service providers. The Third Party Services may import or export data related to your Account, activity and/or content and otherwise gather data from you and your End Users.

9.2. RESPONSIBILITY.  We are not responsible for any Third Party Services or for any act or omission of any third party.  Industry does not own, operate or endorse any Third Party Services and does not warrant any Third Party Services.  You agree to assume all risks and liabilities associated with the use of any Third Party Services.  Third Party Services are operated independently of us and we do not guarantee the availability of any Third Party Services.  If the provider of any such Third Party Services ceases to make the Third Party Services available for interoperation with Services, Industry may cease providing such features or functionality without entitling Customer to any refund, credit, or other compensation.  You agree to use the Services only in compliance with the terms and conditions associated with any Third Party Services. We advise you to check the terms of use and privacy policies for all Third Party Services to ensure compliance and determine how they may use your information.

9.3. ACCESS TO DATA BY THIRD PARTIES.  If you use Third Party Services, your data may be transmitted outside of the Industry system and the provider of the Third Party Services may be able to obtain access to your Customer Data in Industry’s systems through the Industry application programming interface.  This may result in the disclosure, modification or deletion of your Customer Data by the Third Party Service provider.  The Third Party Service provider and its agents may collect and use data pertaining to your configuration and use of the Third Party Service.  We are not responsible for any transmission, collection, disclosure, modification, use or deletion of your Customer Data, as described in this section, by or through Third Party Services or their providers or any of its agents and partners.  

 

10.  REPRESENTATIONS AND WARRANTIES

10.1. WARRANTY. Industry warrants that during the Subscription Term the Services will operate without a material failure of the Service to perform in accordance with the Product Overview (a “Defect”). Customer’s exclusive remedy for breach of this warranty is for Industry to correct or work around the Defect upon request, subject to and in accordance with Industry’s procedures and limitations regarding support. If the Defect persists in causing a material failure in the Service to conform to the Product Overview without correction or work-around forty-five (45) days after written notice to Industry of a warranty claim under this Section 10.1, then Customer may terminate the affected Service and Industry shall refund to Customer any prepaid subscription fees covering the remainder of the Subscription Term of the affected Service after the date of termination. This Section 10.1 sets forth Customer’s exclusive rights and remedies (and Industry’s sole liability) in connection with any Defect or other failure of the Service to perform in accordance with the Product Overview or any other manner.

10.2. DISCLAIMER OF WARRANTIES. Except for the warranties expressly stated in this Agreement, to the maximum extent allowed by Applicable Law, Industry disclaims all warranties of any kind, express or implied, including warranties and conditions arising under statute, warranties of merchantability, non-infringement or fitness for a particular purpose.

 

11.  INDEMNIFICATION

11.1. BY INDUSTRY. We will indemnify, defend and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against the Customer to the extent based on an allegation that Industry's technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, patent or trademark right of a third party that is issued or registered in any country where Spark is commercially active.   In no event will we have any obligations or liability under this section arising in whole or in part from any content, information or data provided by Customer, End User or other third parties. Industry shall not be required to indemnify Customer in the event of: (a) modification of the Services by Customer, its employees, or contractors in conflict with Customer’s obligations or as a result of any prohibited activity as set forth herein; (b) use of the Services in a manner inconsistent with the Documentation; (c) use of the Services in combination with any other application, product, or service not provided by Industry if such claim would not have occurred without such combination; or (d) use of the Services in a manner not otherwise contemplated by this Agreement.

11.2. CUSTOMER INDEMNIFICATION. Customer shall indemnify, defend and hold harmless Industry from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Industry or its affiliates regarding: (i) Customer Content, Customer Data or End User Data; (ii) failure by the Customer to obtain any of the necessary consents required by End Users under this Agreement; (iii) Customer’s use of the Services in violation of this Agreement; and/or (vi) violations of Customer’s obligations of privacy to any Person.

11.3. POSSIBLE INFRINGEMENT.  If we believe the Services infringe or may be alleged to infringe a third party’s intellectual property rights, then we may: (i) obtain the right for you (at our expense) to continue using the Service; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe.  If we do not believe that the options described in this section are commercially reasonable, then we may suspend or terminate Customer’s use of the affected Services (with a pro-rata refund of prepaid fees for the Services).

11.4. PROCESS. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim.  The indemnifying party will have full control and authority over the defence, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (ii) the other party may join the defence with its own counsel at its expense.

11.5. EXCLUSIVE REMEDY. The indemnities above are Industry’s and Customer’s only remedy under this Agreement for third party infringement claims and actions.  

 

12.  LIMITATIONS OF LIABILITY AND DAMAGES

12.1. LIMITATIONS OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF EACH PARTY UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, IN TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE SERVICE GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.  THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO: (I) EITHER PARTY’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS; (II) BREACH OF PRIVACY LAWS AND (III) CUSTOMER’S OBLIGATION TO PAY AMOUNTS OWED FOR SERVICES.

12.2. EXCLUSION OF DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE CUSTOMER NOR INDUSTRY SHALL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUE OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE FORESEEABLE.  THE FOREGOING EXCLUSIONS SHALL NOT APPLY TO EITHER PARTY’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS.

 

13.  CONFIDENTIAL INFORMATION. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (together “Confidential Information” of the Disclosing Party).  Such information includes, without limitation, information relating to pricing of Services, Customer Data, Spark Accounts, and Spark Profiles.  The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as permitted in this Agreement) or divulge to any third person such Confidential Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of this Agreement or any Confidential Information that the Receiving Party can demonstrate that: (i) is or becomes generally known to the public; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party; (iii) is received from a third party without any obligation of confidentiality to a third party or breach of any obligation of confidentiality to the Disclosing Party; (iv) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (v) is required by law.  The Receiving Party shall promptly return to the Disclosing Party or destroy (with certification of such destruction provided by the Receiving Party upon request) all Confidential Information of the Disclosing Party in its possession or control upon request from the Disclosing Party.

 

14.  TERM AND TERMINATION

14.1. TERM. This Agreement shall commence on the date set out in the first Sales Order and shall remain in effect through the end of the Subscription Term in any current Sales Order for Spark Publisher (Cloud) sales, unless terminated earlier pursuant to the terms of this Agreement (the “Initial Term”). Unless your subscription is listed as perpetual on the Sales Order, your subscription will automatically renew at the end of the Initial Term for one additional term equal in length to the Initial Term (the “Renewal Term”) unless you provide us with written notice of your intent not to renew the Initial Term or a subsequent Renewal Term at least ninety (90) days before the expiration of the current Subscription Term that is one year in length or greater.  You must cancel the Services with the aforementioned notice prior to the expiration of the current Subscription Term in order to avoid being billed for a Renewal Term.  Payment for Services for the Renewal Term is due on the first day of the Renewal Term and, if so arranged, will automatically be charged to the account that you used for the original subscription. The renewal price will be the same price as for the prior Subscription Term unless we give you advance notice of a price change.

14.2. TERMINATION.  Either party may terminate this Agreement effective immediately upon written notice: (i) if the other party materially breaches a material obligation under this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement or an assignment for the benefit of creditors.

14.3. EFFECT OF TERMINATION. Upon expiration or other termination of the Service for any reason, your right to access and use the Service shall terminate.  If you terminate this Agreement or any Sales Order solely due to a material breach of this Agreement by us, we agree to refund all prepaid fees for the remaining portion of the Subscription Term for the terminated Service within thirty days after the date of termination. If we terminate this Agreement or any Sales Order for your material breach, all fees set out on such Sales Order shall be non-refundable.  

14.4. RETURN OF CUSTOMER DATA. Within the Subscription Term, you will be entitled to extract Customer Content stored using the Services, Customer Data and Non-Anonymized End User Data.  Following the Subscription Term, Industry shall have the right to delete all of Customer Content, Customer Data and Non-Anonymized End User Data at any time and cancel your Account with us.  You acknowledge and agree that archived versions of the Services may include archived copies of Customer Content, Customer Data and Non-Anonymized End User Data which may be retained by us for an archive cycle.

14.5. SURVIVAL. Upon termination of this Agreement for any reason, Customer shall pay all amounts owed hereunder. Sections 3.3, 4.1, 4.6, 6.3, 6.5, 10, 11, 12, 13, 14 and 15 of this Agreement, together with any other provision required for their construction or enforcement, shall survive termination of this Agreement for any reason.  

 

15.  GENERAL PROVISIONS

15.1. DEFINITIONS. Capitalized terms used in this Agreement, and not otherwise defined in this Agreement, shall have the following meanings:

a. “Account” means the Spark Account, which includes a username, password, and instance of your Services and Customer Content on the applicable network, used by Customer to access and use the Service via Spark Profiles, and includes a Customer Demo Account;

b. “Applicable Laws” means all statutes, codes, rules, regulations, by-laws, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, policies, guidelines, or any provisions of the foregoing, including general principles of common and civil law and equity, binding on or affecting the Person referred to in the context in which such word is used;

c. “Content” means any and all content, data and other materials including, without limitation, videos, music, sounds, images, live streams, documentation, reports, materials, files, text, logos, artwork, graphics, pictures, advertisements, works, works of authorship or any other intellectual property contained in any such materials;

d. “Customer Data” means non-anonymized electronic data pertaining to Customer, the Users and the End Users that is collected and/or processed using the Service, including personal information, login credentials, and other information that relates to such parties’ use of the Service;

e. “Demo Account” means a temporary account provided to Customer by Industry that permits a potential customer to use the Service on a trial basis for a limited time period, free of charge;

f. “Documentation” means documentation relating to the operation and use of the Services that are provided by Industry to Customer under this Agreement, as updated by Industry from time to time;

g. “Person” means a natural person or any legal, commercial or governmental entity, such as, but not limited to, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any Person acting in a representative capacity.

h. “Product Overview” means the overview of the Services to be provided to a Customer set out in the Sales Order.

i. “Software” means software products used in connection with the Service, and may include code that is licensed under third party license agreements, including open source, made available or provided with the Software, as applicable;

j. “Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Services for Customer’s benefit and who may have unique user identifications and passwords for Spark Profiles to access the Services;

k. “Spark Platform” means the assets, designs, code, technology, and servers used in the operation and provision of the Services and includes the Documentation and Software;

l. “End Users” means Persons that use or view the Customer Content;

m. “End User Data” means the electronic data concerning the characteristics and activities of End Users (including personal information of such End Users) collected and analyzed by the Service relating to such End Users use or viewing of the Customer Content.

15.2. ASSIGNMENT. You may not assign this Agreement, nor any of the rights or obligations arising thereof, in whole or in part, to any third party without our prior written consent. We may assign this Agreement, as well as any of our obligations or rights, to a successor entity resulting from a merger, acquisition, or consolidation involving Industry.

15.3. CONFLICT. In the event of any conflict between these Terms of Service and a Sales Order and a Spark Service And Support Agreement, the terms of the Spark Service And Support Agreement shall govern first, a Sales Order shall govern second, and these Terms of Service shall govern third.

15.4. NOTICE. Except as otherwise provided herein, all notices shall be in writing and deemed given upon: (i) personal delivery; (ii) when received by the addressee if sent by an internationally recognized overnight courier (receipt requested); (iii) the second business day after mailing; or (iv) the first business day after sending by email, except that email shall not be sufficient for notices of termination or regarding a Claim. Notices shall be sent in English to the parties as set forth on the signature / registration page of this Agreement or the Sales Order or a Spark Service And Support Agreement or as otherwise agreed to by the parties in writing.

15.5. PUBLICITY. You permit us to list you as a customer and use your standard logo (in colour or monochrome) for our promotional and marketing use during the Subscription Term.

15.6. FORCE MAJEURE. Except for your obligation to pay fees for the Services, neither party will be responsible for failure of performance due to causes beyond its control.  Such causes include, without limitation, accidents, acts of God, labour disputes, actions of any government agency, shortage of materials, acts of terrorism or the stability or availability of the Internet or a portion of it.

15.7. WAIVER AND AMENDMENT. A waiver of any right is only effective if it is in writing and only against the party who signed such writing and for the circumstances given. Any modification of this Agreement must be in writing and signed by both parties.

15.8. RELATIONSHIP OF THE PARTIES. The parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship.

15.9. GOVERNING LAW; VENUE; TIME FOR BRINGING ACTION. This Agreement shall be governed by the laws of the Province of Ontario. Any action or proceeding arising from or relating to this Agreement may only be brought in the courts located in Kitchener, Ontario and each party irrevocably submits to such exclusive jurisdiction and venue. The United Nations Convention on Contracts for the International Sale of Goods (also called the Vienna Convention, and which is cited in the statutes of Canada as the International Sales of Goods Contracts Convention Act) will not apply to this Agreement or the transactions contemplated by this Agreement. No cause of action arising hereunder or relating hereto may be brought more than two (2) years after it first accrues.

15.10.  GOVERNING LANGUAGE. In instances where this Agreement is made available in more than one language, the then-current English language version shall supercede all other versions.

15.11.  EXECUTION. This Agreement may be executed and delivered electronically or by facsimile and the parties agree that such electronic or facsimile execution and delivery will have the same force and effect as delivery of an original document with original signatures, and that each party may use such electronic or facsimile signatures as evidence of the execution and delivery of this Agreement by all parties to the same extent that an original signature could be used. For purposes of clarity, evidence of Customer’s execution and delivery by electronic means shall include execution by clicking the associated digital checkbox to agree to these Terms of Service, and evidence of Industry’s execution and delivery shall occur automatically upon Customer’s own execution.