1. INTRODUCTION; DEFINED TERMS.
Spark Tech Labs Inc. and its subsidiaries and affiliates (collectively, “Spark Tech”, “we”, “us”, or “our”) provide: (1) a CloudHawk user account that may be accessed at www.cloudhawk.com (“Site”), (2) services accessible through the Site (“Web App”), (3) software that may be downloaded to your smartphone or tablet to access services (“Mobile Apps”), (4) hardware (including Units as defined below), sensors, accessory products, and a SIM card and wireless airtime from a wireless service provider (“Products”), and (5) services accessible through or on the Site, Web App, Mobile Apps, and Products, including but not limited to CloudHawk Tracking and the CloudHawk ELD electronic logging device, as well as any other services we may offer from time to time (“Services”). The term “Offerings” means the Site, Web App, Mobile Apps, Products, and Services.
These Terms of Service (“Terms”) govern your access to and use of the Offerings. These Terms give you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction.
These Terms, along with any other terms that are referenced herein or accompany the Offerings, together with any applicable Spark Tech authorized order form and accepted by Spark Tech and agreed to by you (each, an “Order Form”), constitutes the agreement (the “Agreement”) between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements and understandings relating thereto. As used herein, the terms “you” and “your” refer to the customer indicated on the Order Form or any end user of the Offerings; “Application” means collectively the Web App and Mobile Apps; and “Unit” means CloudHawk Tracking hardware and CloudHawk ELD hardware units provided by us to enable your authorized use of the Offerings. Certain additional terms are defined elsewhere in this Agreement.
2. THIS IS A LEGAL AGREEMENT.
BY ACCESSING AND USING THE OFFERINGS, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF AND/OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS AND USE OF THE OFFERINGS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO LEGALLY BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE OFFERINGS.
AS DESCRIBED BELOW, YOU AGREE TO RECEIVE AUTOMATIC SOFTWARE AND SERVICES UPDATES FOR THE SOFTWARE THAT IS INCLUDED IN THE OFFERINGS AND TO THE SERVICES INCLUDED AS PART OF THE OFFERINGS. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE OFFERINGS.
WE RESERVE THE RIGHT, FROM TIME TO TIME, TO MAKE CHANGES TO THESE TERMS, INCLUDING THE AMOUNT OF ANY CHARGES. ANY SUCH CHANGES WILL BE POSTED AT http://www.cloudhawk.com/terms-of-service AND MAY BE POSTED ON THE APPLICATION ITSELF. DEPENDING ON THE CIRCUMSTANCES, WE MAY ALSO DECIDE TO SEND YOU A NOTICE IN OTHER WAYS IN OUR DISCRETION, SUCH AS VIA EMAIL OR OTHER CONTACT INFORMATION YOU HAVE PROVIDED THAT THE POLICY WAS CHANGED. SUBJECT TO SECTION 5.2, IF YOU CONTINUE TO USE THE OFFERINGS AFTER THE EFFECTIVE DATE OF ANY SUCH CHANGES, YOU WILL BE DEEMED TO HAVE ACCEPTED SUCH CHANGES AS AN AMENDMENT OR SUPPLEMENT TO AGREEMENT. THE MOST RECENT VERSION OF THIS AGREEMENT SHALL APPLY TO ALL OFFERINGS, EVEN IF THE OFFERINGS ARE OBTAINED THROUGH MORE THAN ONE ORDER FORM ON DIFFERENT DATES.
3. SERVICE DESCRIPTION.
3.1 The CloudHawk Tracking Offering includes various tracking devices, Web App, Mobile App, Accessories and sensors for tracking location and productivity. CloudHawk Tracking hardware Units may be purchased, leased or financed and related accessories are offered for purchase only. Customers will be required to purchase a per tracker subscription in order to use the CloudHawk Tracking Offering.
3.2 The CloudHawk ELD and Mobile App Offering provides an electronic logging device solution to allow users to log driving. Purchase of the ELD hardware Unit is mandatory for use of the Offering and other hardware and accessories may be purchased from Spark Tech. Customers will be required to purchase a per vehicle subscription and the choice of using a per tablet subscription in order to use the CloudHawk ELD Offering.
3.3 The Offerings include access to our cloud-based solution accessible via the Application. You will be responsible for controlling user name(s) and password(s) to access the Application. From time to time, we may develop and automatically provide you with new Services and software updates, upgrades, bug fixes, patches, new features (collectively, “Updates”), or modify or delete in their entirety certain features and functionality. You consent to receive such new Services and Updates and agree that Spark Tech has no obligation to provide such Services and Updates or to continue to provide or enable any particular Services, features or functionality, provided the Offerings are still able to provide the primary features associated with the purchased Product.
3.3 We will provide you with the number of Units and any requested accessories set forth on each Order Form we accept. For purposes of this Agreement, such Units are considered “authorized” during the Initial Subscription Period (as defined in Section 5.1) set forth on the applicable Order Form (provided all applicable fees are paid) and for so long as you continue to pay the applicable and recurring monthly or annual charges (“Charges”) shown on the applicable Order Form and invoices thereafter for the Offerings. During the warranty period set out in our hardware limited warranty, we will repair or replace, at our option, any authorized Unit in accordance with our hardware limited warranty as posted at www.cloudhawk.com/warranty and incorporated by reference herein. You may also contact us outside of the warranty period to repair or replace any authorized Units; however Spark Tech will not be responsible for any defects outside the warranty period and you may be charged for repairs or Unit replacement outside the warranty period.
3.4 Spark Tech does not guarantee access to user account information after the expiration or termination of this Agreement. You are required to notify Spark Tech promptly of any unauthorized use of the Application through your user name(s), password(s), employees, or systems and you are solely responsible for all use (authorized and unauthorized) of the Application through your account.
3.5 Support inquiries can be submitted by emailing firstname.lastname@example.org or by calling for support from 9am ET to 5pm ET on business days to assist you. Our team will use commercially reasonable efforts to respond to inquiries on a timely fashion. If you have purchased access to CloudHawk via a CloudHawk Authorized Channel Partner, 1st level support will be provided solely by that organization. Ultimately, you understand that Spark Tech has no obligation under this Agreement to provide any support to you for your use of the Offerings and that Spark Tech may choose to provide, at its sole discretion end-user support.
3.6 The Offerings use wireless airtime from a wireless service provider, as well as global positioning system (“GPS”) satellite network. The wireless airtime and GPS satellite network are not available everywhere, particularly in remote areas, or at all times. Your Products require a wireless cellular connection, ability to receive GPS signals, and an adequately charged battery for the Offerings to properly function. The Offerings may not work if your Products are not properly installed, not properly maintained, or modified by any person other than by Spark Tech or our authorized representative. There are other problems beyond our control that may prevent us from providing the Offerings to you at any given time, such as damage to Units from an accident, abuse or neglect of your Units, terrain (hills, mountains, dips, valleys), buildings, bridges, tunnels, weather, gaps in the wireless service provider’s network coverage, wireless service network congestion, interference with the satellite transmissions that help supply the GPS data used by Spark Tech, among other problems beyond our control. Spark Tech shall not be liable for any losses or other liabilities you incur as a result of any issue beyond our control.
3.7 Spark Tech may make available installation services provided by third parties (“Installation Services”). Such third-party Installation Services may be purchased by submitting a request on your Order Form. By purchasing any Installation Services you agree that Spark Tech is not responsible for the Installation Services and any warranty in respect of the Installation Services is provided by the third-party service provider and not Spark Tech.
4. INVOICING AND PAYMENT; TAXES.
4.1 Unless otherwise agreed to in writing, you must pay the initial fees for the Offerings, shipping, and any applicable taxes before Products will be provided. All prices, fees, and rates provided in a quote or Order Form are only valid if expressed in writing by Spark Tech and are only valid for the period of time stated in the quote or Order Form. If the period of time is not stated in the quote or Order Form, the validity period shall be 30 days. All prices, fees, and rates under this Agreement exclude sales, use, excise, customs, and any other taxes assessed at any time. All sales, use, excise, customs, and any other taxes, charges or levies imposed by any federal, provincial, state, municipal, or local authority in connection with the importation, exportation, transportation, or use of the Offerings shall be at your sole expense. In the event that we incur any such expenses or liabilities, you agree to reimburse us upon receipt of an invoice for such expenses or liabilities. Thereafter, recurring Charges for all Offerings, in the amount shown on the applicable invoice will be due either per month or per annum (as specified on the Order Form or invoice) during the Term and based on the number of authorized Units associated with your account at such time. Charges will accrue and be payable with respect to all authorized Units, regardless of usage, unless a malfunction is reported to and acknowledged by Spark Tech. Any additional services provided by Spark Tech or an authorized third party will be invoiced following the provision of such services. All invoices are due within 30 days from the invoice date. If any amounts due hereunder are not paid by the applicable due date, a late fee may be assessed in an amount not to exceed the lesser of 1.8% of the unpaid balance per month or the maximum amount permitted by law.
4.2 Your failure to make timely payment of any obligation under this Agreement shall be deemed a breach. You agree to reimburse Spark Tech for all charges, costs, expenses and lawyer’s fees incurred to enforce or collect the amounts due under this Agreement.
4.3 If you have a valid dispute with any invoice or amount due, such dispute must be communicated to us in writing within 30 days of the date of the invoice, and must describe the amount, the issue, and the reason for any dispute. Any amounts not disputed within this time frame will be deemed to be invalid. Spark Tech and you agree to work expeditiously to resolve any dispute.
4.4 If you have provided a credit card number to pay your invoices, charges will be billed to such credit card each month throughout the Term unless you provide notice that you wish to suspend automatic billing. Until such time, you hereby authorize Spark Tech to charge such card for amounts due hereunder. If a charge is rejected for any reason, you will remain responsible for all payments due hereunder, as well as any expenses incurred in connection with such rejection. To cancel automatic billing, contact your Spark Tech account representative or call our customer support office at 1-844-344-9955. If you make payment by cheque and a cheque is returned for insufficient funds, you are subject to our then-current cheque return charge.
4.5 Spark Tech may offer financing in respect of Units. Any financing options will be subject to additional terms and conditions.
4.6 If you lease any equipment under an applicable Order Form, then Spark Tech shall provide you with the leased Units for the Term (as that term is defined below) on a loan basis only and shall grant you with a right to use the leased Units in accordance with your purchased subscription plan during the Term. The leased units are not sold and Spark Tech does not transfer any title or interest to you in respect of the leased United. Upon termination of the Term, you shall return any leased Units to Spark Tech via courier. If you return a damaged Unit or fails to return a Unit within thirty (60) days after the end of the Term, Spark Tech may, in its discretion and in addition to any other remedies that may be available to Spark Tech, issue an invoice to you in the amount of the current list price of the applicable product(s). You shall pay such amount net thirty (30) days after receipt of Spark Tech’s invoice.
5. TERM AND TERMINATION.
5.1 With respect to each Unit, (i) you agree to pay the fees and the Charges for the Offerings for the initial subscription period set forth on the applicable Order Form or invoice (the “Initial Subscription Period”), and (ii) unless you notify us at least 30 days prior to the end of the Initial Subscription Period stating that you want to discontinue use of one or more of such Units, such Units, Products, and all accompanying Services will automatically be renewed for a period of one year (each, a “Renewal Subscription Period”) based upon the terms and conditions then in effect. Automatic renewals will continue for Units, Products, and all accompanying Services until either party provides the other with notice of its intention to cease such automatic renewals at least 30 days prior to the termination date of the applicable Renewal Subscription Period. The Initial Subscription Period and, if applicable, any Renewal Subscription Periods, are hereinafter referred to as the “Term”. If the applicable Order Form or invoice does not specify an Initial Subscription Period, the Initial Subscription Period commences on the date the Products were shipped to you and ends 12 months thereafter. If you begin using the Offerings having selected an initial month-to-month subscription plan, that plan will continue until you either provide notice to terminate the monthly Term, or alternatively switch to a contract term which offers a reduced Charges.
5.2 Notwithstanding the foregoing, we may terminate this Agreement or suspend the Offerings without notice, if you (i) fail to pay any amounts owed hereunder within 10 calendar days of the applicable due date; or (ii) become insolvent, dissolve, make an assignment for the benefit of creditors, or commence (voluntarily or involuntarily) a bankruptcy or other reorganization proceeding. Either party may terminate this Agreement upon written notice if the other breaches any material obligation hereunder (other than payment obligations) and such breach remains uncured 30 days after notice thereof by the non-breaching party. In addition, if we notify you of any change to this Agreement that either (a) materially increases the Charges payable by you or (b) materially and adversely effects your use of the Offerings, then you may terminate this Agreement by giving 30 days prior written notice and specifying the reason for termination, unless we notify you during such 30-day period that the change shall not apply to you.
5.3 In the event of a termination of this Agreement for any reason other than an uncured breach by Spark Tech or pursuant to the last sentence of Section 5.2, (i) you shall promptly pay us, as compensation for loss of our bargain and not as a penalty, an amount equal to the aggregate Charges otherwise payable for the remainder of the Initial Subscription Period or Renewal Subscription Period at the effective time of termination (in addition to any other amounts then owed); and (ii) we may exercise any other right at law or in equity. Upon expiration or termination of this Agreement, or if your subscription or free trial for the Offerings expires, or the Beta Period (as defined in Section 7.2) for the Beta Services (as defined in Section 7.2) expires or is terminated, we will deactivate your CloudHawk account, Units, Products, and Services, you will immediately cease all use of the Offerings and Confidential Information (as defined in Section 11.1), return all Products at your cost within 10 business days after expiry or termination of this Agreement to us at such place as may be specified by Spark Tech, and any payments that are then due to Spark Tech become immediately payable in full. If this Agreement expires or is terminated and you do not return the Products (including Beta Hardware) within 10 business days of the expiry or termination of this Agreement, you agree and authorize Spark Tech to send you invoices or charge your credit card for any fees and Charges associated with the Products and Services (including Beta Hardware and Beta Services if any fees and Charges apply) at the rates set out on the initial Order Form or invoice or, if no rates are set out on the initial Order Form or invoice, on Spark Tech’s Site on the day of expiry or termination of this Agreement for so long as the Products are not returned to Spark Tech. You are not entitled to receive a refund for any prepaid Offerings including any prepayment of Services and the purchase price of Products (if any).
5.4 Notwithstanding anything to the contrary herein, Sections 4, 5.3, 5.4. 6, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8 and 8 through 17, as well as your obligation to pay any outstanding amounts due hereunder, shall survive any expiration or termination of this Agreement.
6. RELATIONSHIP WITH WIRELESS SERVICE PROVIDER. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU HAVE NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS SERVICE PROVIDER OR ITS AFFILIATES OR CONTRACTORS THAT PROVIDE WIRELESS SERVICE TO THE PRODUCTS AND THAT YOU ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN SPARK TECH AND THE UNDERLYING WIRELESS SERVICE PROVIDER. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT THE UNDERLYING WIRELESS SERVICE PROVIDER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU AND YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS THEREFOR. YOU ACKNOWLEDGE THAT YOU HAVE HAD THE OPPORTUNITY TO FULLY INVESTIGATE THE CAPABILITIES, QUALITY, AND RELIABILITY OF THE SPARK TECH OFFERINGS AND HAVE SATISFIED YOURSELF THAT THE OFFERINGS SATISFACTORILY MEET YOUR BUSINESS NEEDS.
7. LIMITED LICENSE.
7.1 We hereby grant you, for use during the Term only, a non-exclusive, non-transferable license to use, as applicable, the software integrated into or stored on any authorized Products or the Application solely in conjunction with the authorized use of the Offerings pursuant to this Agreement and any specifications or documentation provided by us from time to time. If you are using the Offerings on a subscription basis or as part of a free trial, then the license rights set out in this Section 7.1 apply only for the time period for which you have paid the requisite fees and Charges, if any, or for the time period authorised by Spark Tech or its authorised resellers, as the case may be.
7.2 Beta Products. If the Application, or any Services accessed are identified as pre-commercial, evaluation, "alpha" or "beta" software (“Beta Application” and "Beta Services" respectively), the license rights set out above with respect to your use of such Beta Application and access rights to the Beta Services apply only for the time period authorised by Spark Tech ("Beta Period") and solely to the extent necessary to enable you to test and provide Feedback (as defined in Section 7.6) to Spark Tech regarding the Beta Application and Beta Services, and any Products provided by Spark Tech for use with the Beta Application and Beta Services ("Beta Hardware", and together with Beta Application and Beta Services, "Beta Products"). Such license and access rights will automatically terminate upon the expiration or termination of the Beta Period, which period may be extended or terminated by Spark Tech at any time, in its sole discretion, but, unless you are in breach of this Agreement, Spark Tech will, if feasible, use commercially reasonable efforts to provide you with prior notice of any change to the duration of the Beta Period. Notwithstanding the Beta Period, you acknowledge and agree that Spark Tech may include technical measures in the Beta Products that render them inoperable after a specified period of time and you agree that you will not circumvent such technical measures, nor attempt to do so. In consideration of the grant of license to the Beta Products, you agree that you will provide Spark Tech with Feedback on Beta Products as Spark Tech reasonably requests, including ongoing Feedback regarding bugs and faults experienced during the Beta Period, without any compensation or reimbursement of any kind from Spark Tech, and that Section 7.8 below entitled "Feedback" will apply to such Feedback.
7.3 If you register for a free trial of the Offerings, then, subject to this Agreement, Spark Tech grants you a limited, personal, non-transferable, non-sub-licensable, internal license to use the Offerings for evaluation purposes during the applicable Trial Period (as defined in this Section). Spark Tech reserves the right to require that you provide valid credit card information to start a trial. For the purposes of this Agreement, “Trial Period” means the time starting from your registration to use a free trial of the applicable offerings until the earlier of (a) the end of the free trial period (which trial period shall be thirty (30) days unless otherwise stated on the Order Form), or (ii) the start date of any paid subscription for the Offerings. You will not be entitled to receive any support from Spark Tech during the trial and Spark Tech may terminate the Trial Period at any time in Spark Tech’s sole discretion and may accept or decline any request for a free trial version of the Offering in Spark Tech’s sole discretion. ANY DATA YOU ENTER INTO THE FREE TRIAL VERSION OF THE MOBILE APPS AND ANY CUSTOMIZATIONS YOUR MAKE WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A PAID SUBSCRIPTION TO THE OFFERINGS. YOUR DATA CANNOT BE EXPORTED FROM THE FREE TRIAL VERSION OF THE OFFERINGS. NOTWITHSTANDING ANY OTHER PROVISIONS IN THESE TERMS, ACCESS TO THE FREE TRIAL VERSION OF THE SERVICE IS ON AN “AS-IS” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF ANY KIND. Additional terms and conditions applicable to the free trial version of the Offerings may appear on the applicable registration page. Any such additional terms and conditions are incorporated into this Agreement by reference.
7.4 You acknowledge and agree that the Offerings: (a) were developed at considerable time and expense by Spark Tech; and (b) the Offerings, including the Beta Products, contain Confidential Information including the trade secrets of Spark Tech. Without limiting the foregoing or the definition of Confidential Information set out in Section 11.1, for Beta Products, Confidential Information includes the ‘look and feel’, performance, specifications, features and functionality of software, hardware and services, which information may not be discussed or shown to the public by you in any manner until publicly released by Spark Tech.
7.5 You may not copy, modify, adapt, create derivative works, or attempt to reverse engineer, decompile, or disassemble any documentation or any hardware or software that is part of the Offerings, nor attempt to gain knowledge of the source code of the Offerings in any manner whatsoever. We may block your access to the Offerings if your use interferes with the operation and utilization of the Offerings by any other party. No title and/or any right of possession to any leased Units, including Beta Hardware, is granted by virtue of this Agreement. We and our licensors expressly reserve and retain all right, title, and interest in and to all intellectual property rights not expressly granted hereunder, including but not limited to worldwide copyrights, trade secrets, trademarks, patents, and Confidential Information. You will not under any circumstances rent, lend, lease, transfer, time-share, or sub-license the Offerings or any part thereof and any documentation. You agree to (a) take commercially reasonable efforts to ensure that persons under your direction and control shall abide by the terms and conditions of this Agreement; (b) prevent third parties from using the Offerings and any documentation in any way that would constitute a breach of this Agreement; and (c) immediately report to us any unauthorized use or reproduction of the Offerings, or any documentation related to the Offerings, or intellectual property related to the Offerings by a third party. You agree to keep and maintain the Products in good working order, reasonable wear and tear from proper use only excepted.
7.6 You shall take commercially reasonable steps to maintain all copyright, patent, trademark, and trade secret notices, and any other proprietary notices, which are contained on or in the Offerings and on any documentation related to the Offerings. You agree not to intentionally alter, remove, or obscure such proprietary notices which are contained on or in the Offerings or on any documentation. You shall not attach, remove, or disfigure any marks of Spark Tech or its licensors which are contained on or in the Offerings or on any documentation, and shall not associate any other marks with the Offerings or any documentation.
7.8 Feedback. Spark Tech welcomes your feedback regarding the Offerings (including Beta Products), but we cannot receive feedback unless we are able to freely use the feedback to improve the Offerings. Therefore, unless we otherwise agree with you in writing, you hereby agree that we own all feedback, comments, suggestions, ideas, concepts, and changes that you provide to us regarding the Offerings and all associated intellectual property rights (collectively the "Feedback"), and you hereby assign to us all of your right, title, and interest in your Feedback. You will not knowingly provide us any Feedback that is subject to third party intellectual property rights. You agree to cooperate fully with us with respect to signing further documents and doing such other acts as are reasonably requested by us to confirm that we own the Feedback and to enable us to register and/or protect any associated intellectual property rights and/or Confidential Information.
7.9 If you purchased the Offerings through a reseller, you agree that such reseller acts as an independent contractor and not as an agent or employee of Spark Tech. You agree any terms and conditions you entered into with the reseller are separate from and in addition to your obligations under this Agreement and that reseller has no authority to bind Spark Tech in any manner. If your agreement with the reseller expires or terminates for any reason and you notify Spark Tech that you want to continue using the Offerings, you permit Spark Tech to provide the Offerings directly to you and you agree to pay any Charges for the Offerings on a credit card or directly to Spark Tech.
7.10 Use of the CloudHawk API is subject to additional terms and conditions.
8. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE OFFERINGS IS AT YOUR SOLE RISK. THE OFFERINGS ARE PROVIDED ON AN “AS IS” BASIS AND THERE ARE NO OTHER WARRANTIES OR CONDITIONS MADE BY SPARK TECH OR ITS PARTNERS OR LICENSORS, WHETHER EXPRESS, IMPLIED, OR ARISING OUT OF A COURSE OF DEALING, USAGE OR TRADE PRACTICE, INCLUDING, BUT NOT LIMITED TO, NON-INFRINGEMENT, MERCHANTABILITY, MERCHTANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPARK TECH AND ITS PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHTANBLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SPARK TECH AND ITS PARTNERS AND LICENSORS DO NOT WARRANT THAT THE OFFERINGS (i) WILL MEET YOUR REQUIREMENTS, (ii) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, AND (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE OFFERINGS WILL BE ACCURATE OR RELIABLE, OR THAT ERRORS WILL BE CORRECTED.
9. LIMITATION OF LIABILITY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT SPARK TECH AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING FOR ANY UNAVAILABILITY, DISRUPTION, OR DEGRADATION OF SERVICES OR LOSS OF DATA, WHETHER OR NOT SPARK TECH OR ITS LICENSORS HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SET OUT IN THIS AGREEMENT SHALL: APPLY WHETHER AN ACTION, CLAIM, OR DEMAND ARISES FROM A BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER KIND OF CIVIL OR STATUTORY LIABILITY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT, AND SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN. IN NO EVENT SHALL SPARK TECH’S TOTAL AGGREGATE LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, CLAIMS, AND CAUSES OF ACTIONS (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNIFICATION OR OTHERWISE) EXCEED THE LESSER OF ONE HUNDRED CANADIAN DOLLARS ($100 CAD) AND THE FEES PAID BY YOU UNDER THIS AGREEMENT IN THE 12 MONTHS LEADING UP TO THE EVENT THAT GAVE RISE TO LIABILITY.
10. DATA AND PRIVACY
10.1. As between you and Spark Tech, you exclusively own all right, title and interest in and to all of your data and content provided to the Service (“Your Data”). Spark Tech shall only access Your Data to respond to service or technical problems, to contact you, for billing purposes or as otherwise necessary for the operation of the Service.
10.2 You hereby grant Spark Tech, a non-exclusive, irrevocable, perpetual, sub-licensable, transferable license to use, copy, modify and otherwise exploit Your Data (i) as reasonably required to provide the Service; and (ii) and to create de-identified, aggregated or made-anonymous service data through your operation of the Service, including but not limited to analytics related to customer use of the Service and Service performance (“Anonymous Service Data”). Spark Tech shall own all right, title and interest in and to the Anonymous Service Data, including all intellectual property rights in the Anonymous Service Data, and you hereby assign, transfer and convey to Spark Tech any ownership interest you may have in any Anonymous Service Data.
10.3 Unless your subscription has been terminated in accordance with Section 5.2, and subject to Section 7.3, you will be able to access and export Your Data during the Term.
11.1 For the purposes of this Agreement, "Confidential Information" means confidential or proprietary information of the other party, including, without limitation, pricing information, software (source and object code), Beta Products, product specifications, functional and technical specifications, designs, drawings, analysis, research, processes, methods, ideas, “know how”, business information, product plans, marketing information and materials, technical information, and other information designated as confidential expressly or understood to be confidential by the circumstances in which it is provided.
11.2 In order to fulfil the purposes of this Agreement, each of the parties (each in turn a Disclosing Party) may disclose or permit the other party (the Receiving Party) access to the Disclosing Party’s Confidential Information in compliance with this Section 11 (Confidentiality). Except as specifically permitted in this Agreement or with the prior express written permission of the Disclosing Party, the Receiving Party: (a) shall not disclose, allow access to, transmit, transfer, or otherwise make available any Confidential Information of the Disclosing Party to any third party other than employees and third party professional consultants of the Receiving Party (Authorised Recipients), and with respect to the disclosure of Confidential Information to Authorised Recipients, the Receiving Party: (i) shall ensure that the Authorised Recipients have a bona fide need to know such information to fulfil the purposes of this Agreement; (ii) is vicariously liable for the failure of the Authorised Recipients to comply with the Receiving Party’s obligations under this Section 11 (Confidentiality); and (iii) has executed a non-disclosure agreement or other written agreement (or is otherwise already bound by a non-disclosure or other written agreement) that contains use, reproduction, and non-disclosure restrictions of the Confidential Information on terms that afford at least as much protection to the Confidential Information as the provisions of this Agreement; (b) shall not use or reproduce the Confidential Information of the Disclosing Party for any reason other than as reasonably necessary to fulfil the purposes of this Agreement; and (c) shall maintain the Disclosing Party’s Confidential Information in strict confidence. The Receiving Party shall ensure that any copy of the Confidential Information the Receiving Party makes is marked confidential and when appropriate proprietary to the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information if and only to the extent it is required to do so by law provided that the Receiving Party gives the Disclosing Party sufficient advance notice of such required disclosure to enable the Disclosing Party to seek an order limiting or precluding such disclosure. Any breach of the confidentiality provisions of this Agreement may cause the Disclosing Party irreparable injury for which there is no adequate remedy at law, and that the Disclosing Party shall be entitled to seek injunctive relief to remedy such breach.
11.3 Information disclosed under this Agreement shall not be considered Confidential Information to the extent that the Receiving Party can establish that such information: (A) is or was lawfully in the Receiving Party’s possession before receipt from the Disclosing Party and without restriction as to use or disclosure; (B) is or becomes a matter of public knowledge or generally available to the public through no act or omission on the part of the Receiving Party; or (C) is or was independently developed or discovered by the Receiving Party in a lawful manner without access to Confidential Information of the Disclosing Party.
11.4 Nothing in this Agreement shall confer upon the Receiving Party any right, title or interest in or to any Confidential Information except as expressly stated in this Agreement. The Receiving Party’s duties with respect to Confidential Information under this Agreement expire five (5) years from the date of its disclosure hereunder (except for trade secrets, which shall remain subject to the confidentiality obligations in this Agreement for so long as they constitute trade secrets). Any source code and customer lists disclosed under this Agreement shall be deemed to be a trade secret. This Agreement and any amendments shall be deemed to be Spark Tech’s Confidential Information.
12. VEHICLE TRANSFERS. If you transfer ownership of any vehicle that has a Unit installed in it, you agree to: (i) notify the transferee prior to the transfer; and (ii) either (a) uninstall the Unit prior to transfer and terminate your subscription; or (b) if the transferee agrees to take over your subscription, provide us with contact information of the transferee. In the event that the transferee does not enter into an agreement with Spark Tech to take over your subscription, you will remain liable for all obligations, including payment obligations, under this Agreement until the Agreement is terminated.
13. INDEMNIFICATION. By using the Offerings, you agree to defend, indemnify and hold harmless Spark Tech, its successors and assigns and each of their respective directors, officers, employees and agents, against any and all losses, claims, damages and expenses (including lawyers’ fees and other disbursements) arising out of or claimed to have been caused directly or indirectly by your (including your employees’ or independent contractors’) (i) use or negligent or intentional misuse of the Offerings; (ii) breach of this Agreement; (iii) breach of any applicable laws; or (d) breach of any right of any third party.
14. COMPLIANCE WITH LAWS. You understand that Spark Tech is subject to applicable laws and regulations, including export control laws and regulations which, in some cases, prohibit the export, import, use, or diversion of certain products to certain countries, entities or persons. You warrant that you will: (a) comply with all applicable laws and regulations, including export control laws and regulations, with respect to the Offerings, including the Units; and (b) use the Offerings only in compliance with applicable law.
15. FORCE MAJEURE. Spark Tech shall not be liable in any way including for any damages for any failure or delay in performance hereunder which is proximately caused by, attributable to or arising from strikes, shortages, suppliers, riots, insurrection, fires, floods, storms, earthquakes, acts of God, war, governmental action, restrictions by governmental or other competent authority, statutory or regulatory obligation, labour conditions, or other causes beyond a party’s reasonable control. The failure to make any payment required under this Agreement shall never be excused under this force majeure provision.
16. ASSIGNMENT. Spark Tech reserves the right to assign this Agreement to a third party at any time during the Term of this Agreement. This Agreement is personal to you, and you may not assign its rights or obligations, in whole or in part, to any third party without our written approval. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns.
17. MISCELLANEOUS. These Terms are governed by and construed under the laws of the Province of Ontario, excluding any body of law governing conflicts of law. Any disagreement or dispute arising out of or relating to these Terms, shall be settled by final and binding arbitration to be conducted in Ontario, Canada in accordance with the rules of arbitration of the Arbitration Act, 1991 (Ontario) (the “Ontario Rules") and shall be heard by one arbitrator appointed in accordance with the Ontario Rules and to be mutually agreed to by the parties within thirty (30) days of the appointment of the arbitrator, failing which a neutral third party shall appoint the arbitrator. Each party shall bear one half of the costs associated with the arbitration proceedings. The arbitration shall be conducted in the English language. All matters relating to any arbitration under these Terms shall be held in strictest confidence to the maximum extent permissible by law. No dispute between the parties, or involving any person but you, may be joined or combined together, without the prior written consent of Spark Tech. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, Spark Tech has the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of law for claims or disputes regarding: (i) amounts owed by you to Spark Tech in connection with your acquisition of the Offerings or any portion thereof, if applicable; and (ii) your violation or threatened violation of Sections 5.3, 7, 11, and 13. You irrevocably waive any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consent to service of process by mail or in any other manner permitted by applicable law and irrevocably consent and attorn to the jurisdiction of the courts located in the City of Kitchener, Ontario, Canada, for any such claims arising from or related to these Terms. The parties specifically agree that, in the event that there is a dispute under these Terms and such dispute is to be resolved in a court of law, such dispute shall not be resolved by jury trial. The parties hereby waive all rights to a trial by jury in any matter related to or arising from these Terms. This Agreement may be amended as set forth in Section 2; no other amendment shall be binding unless set forth in a writing signed by both parties, and no waiver hereunder shall be binding unless signed in writing by the party against whom the waiver is to be enforced. In the event of any conflict between these Terms and any written modification executed by both parties hereto, the document later in time shall prevail. If any provision of this Agreement is determined to be unenforceable, the remaining provisions shall not in any way be affected. This Agreement may be executed in counterparts, and an electronic copy of a signature hereto shall be deemed an original for all purposes. Pronouns used in this Agreement are applicable to the singular as well as the plural forms of such terms. The captions and other headings contained in this Agreement are inserted for convenience of reference only and shall not affect the interpretation or meaning of this Agreement.
18. NOTICES. You agree that we may provide any legal notice relating to this Agreement by mail to the same address where we send invoices for the Offerings. It is your responsibility to ensure that your trade name, phone number, and address information is kept up to date. Except as expressly provided herein, any notice you deliver to us must be in writing, addressed to “Legal Affairs” and delivered with confirmation of receipt to Spark Tech Labs Inc., 680 Davenport Road, Unit D, Waterloo, Ontario N2V 2C3, or to such other address as we instruct.
19. LANGUAGE. It is the express wish of the parties that this agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
EFFECTIVE DATE: June 19th, 2018