Squark End User License Agreement

This End User License Agreement (”Agreement”) is a binding agreement between you (“Licensee” or “you”) and  Vizadata LLC d/b/a Squark (”Company”). This Agreement governs your use of the Company software, (together with all related documentation, the “Application”).

BY USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND ALL OF THE TERMS OF SERVICE AS PUBLISHED ON COMPANY’S WEBSITE AT WWW.SQUARKAI.COM (AS MAY BE RELOCATED BY COMPANY FROM TIME TO TIME);  (B) REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO DO SO.  ANY REFERENCE TO “YOU” OR “LICENSEE” REFERS TO SUCH ENTITY.  IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION.

  1. License Grant. Subject to the terms of this Agreement and to your payment of applicable subscription fees (“Subscription Fees”), Company grants you a limited, non-exclusive, nontransferable, and non-sublicensable license for you to: use the Application strictly in accordance with the Terms of this Agreement and the Terms of Service located at [http://squakrai.com/terms-of-service/].
  1. Payment. All Subscription Fees are payable in advance and are non-refundable, except as may be expressly set forth herein. Any renewal of the license hereunder shall not be effective until the Subscription Fees for such renewal have been paid in full. Subscription Fees may be increased upon 60 days’ prior notice.
  1. License Restrictions. Licensee shall not: (a) copy the Application, except as expressly permitted by this license; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application; (c)  reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; (d)  remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof; (e)  rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason; (f)  remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application; (g) except as may be permitted herein and strictly in compliance with this Agreement, provide any other person, including any subcontractors, independent contractors, affiliates, or service providers with access to or use of the Application; (h) combine the Application or any part thereof in any other programs; (i) access or use the Application in violation of any law, regulation, or rule; (j) access or use the Application for purposes of competitive analysis of the Application, the development of a competing software product or service, or any other purpose that is to Company’s commercial disadvantage; (k) access or use the Application in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party; and (l) use or attempt to use the Application in violation of this Agreement or permit or encourage anyone else to do so.
  1. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserves and shall retain its entire right, title, and interest in and to the Application, including all improvements, enhancements, modifications, and derivative works of the Application, including without limitation, copyrights, trademarks, trade secret, patent, and other intellectual property rights (“Intellectual Property Rights”) therein or relating thereto, except as expressly granted to you in this Agreement. You shall promptly notify Company if you become aware of any infringement of Company’s Intellectual Property Rights and fully cooperate with Company, at Company’s sole expense, in any legal action taken by Company to enforce its Intellectual Property Rights.
  1. Storage and Processing of Data. You acknowledge that when you use the Application, information provided by you as part of your use of the Application is stored on the Company platform and processed by Company and its third party service providers. By using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information as identified in our Terms of Service [http://squakrai.com/terms-of-service/] and Privacy Policy [http://squakrai.com/privacy-policy/].
  1. Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
  1. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
  1. Confidentiality.

(a)  In connection with this Agreement, Company may disclose or make available to you Confidential Information.  For purposes of this Agreement, “Confidential Information” shall mean information in any form or medium (whether oral, written, electronic or other) that Company considers confidential or proprietary, including, without limitation, information consisting of or relating to the Application, Company’s technology, trade secrets, know-how, business operations, plans, strategies, customers, products, pricing and information with respect to which the Company has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential.” Confidential Information shall not include information that you can demonstrate by written or other documentary records: (i) was rightfully known to you without restriction on use or disclosure prior to disclosure to you hereunder; (ii) was or becomes generally known by the public other than by your or any of your representative’s noncompliance with this Agreement; (iii) was or is received by you on a non-confidential basis form a Third Party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) was or is independently developed by you without reference to or use of any Confidential Information.

(b)   You shall: (i) not access or use Confidential Information other than as necessary to exercise your rights or perform your obligations under and in accordance with this Agreement; (ii) except as may be permitted under this Agreement, not disclose or permit access to Confidential Information other than to your employees, agents, or representatives who (A) need to know such Confidential Information to exercise your rights or performance obligations under this Agreement, (B) have been informed of the confidential nature of the Confidential Information, and (C) are bound by written confidentiality and restricted use obligations at least as protected of the Confidential Information as the terms set forth in this Section; (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care that you use to protect your own similarly sensitive information and in no event less than a reasonable degree of care; (iv) promptly notify Company of any unauthorized use or disclosure of Confidential Information and take commercially reasonable steps to prevent further  unauthorized use or disclosure; and (v) ensure you agent’s, employee’s and representatives’ compliance with, and be responsible and liable for any of your or their non-compliance with the terms of this Section.

(c)  If you are compelled by applicable law to disclose any Confidential Information, then, to the extent permitted you shall: (i) promptly, and prior to such disclosure, notify Company in writing of such requirement, so that Company can seek a protective order or other remedy or waive your rights under this Section; and (ii) provide reasonable assistance to Company, in opposing such disclosure or seeking a protective order or other limitations on disclosure.  If Company waives compliance or, after providing the notice and assistance required under this Section, you remain required by applicable law to disclose any Confidential Information, then you shall disclose only that portion of the Confidential Information that you are legally required to disclose and, on the Company’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

  1. Access and Security. You have and will retain sole responsibility: (a) all for information, data and other content that is collected, downloaded or otherwise received by Company through the Application or that incorporates or is otherwise derived from the processing of such information, data or content (“Licensee Data”); (b) your information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by you or through the use of third-party services; (c) the security and use of and access to the Application, including access credentials, logins and passwords; (e) all access to and use of the Application, directly or indirectly by or through your systems and your access credentials, logins or passwords, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. You shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (i) securely use access credentials, logins and passwords; (ii) control the content and use of Licensee Data, including the uploading or other provision of Licensee Data to the Application.  You acknowledge and agrees that Company shall not be responsible for any unauthorized use of, or access to, Licensee Data.
  1. Licensee Data. As between the parties, you are and will remain the sole and exclusive owner of all right, title and interest in and to Licensee Data. You hereby irrevocably grant to Company all such rights and permissions in or relating to Licensee Data as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.  The Application does not replace the need for you to maintain regular data backups or redundant data archives.  COMPANY SHALL NOT BE RESPONSIBLE FOR STORING, BACKING UP OR ARCHIVING LICENSEE DATA AND COMPANY SHALL HAVE NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF LICENSEE DATA.
  1. Collection and Use of Information. You acknowledge and agree the Company may, directly or indirectly collect and store information regarding use of the Application and through which it is accessed and used.  You acknowledge and agree that the Company may use such information for any purpose related to use of the Application including, but not limited to: improving the performance of the Application.
  1. Compliance Measures. The Application may contain technological copy protection or other security features designed to prevent unauthorized use of the Application, including features to protect against any use of the Application that is prohibited under this Agreement. You shall not, and shall not permit any other individual to attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
  1. Responsibility for Use of Application. You are responsible and liable for all uses of the Application through access provided by Company, directly or indirectly. Specifically, and without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to take required actions with respect to the Application any other person to whom you may provide access to or use of the Application, whether such access or use is permitted by or in violation of this Agreement.
  1. Licensee Representations.

(a) You are authorized to enter into this agreement on your own behalf if you are an individual, or on behalf of your company, if you are entering into this agreement on behalf of an entity.

(b) You have the necessary rights and consents to share Licensee Data with Company for the purposes contemplated in this Agreement.

  1. Sensitive Personal Information. You  specifically agree that you will not upload into the Application or otherwise use the Application to collect, store, process or transmit any Sensitive Personal Information (defined below). You acknowledge that Company is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Application is neither HIPAA nor PCI DSS compliant and that Company will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein. For purposes of this Agreement, “Sensitive Personal Information” is given the meaning under relevant privacy or data protection laws relating to this term or any similar term (such as “sensitive personal data”) used in the laws, including, without limitation, the Gramm-Leach-Bliley Act, Health Insurance Portability and Accountability Act of 1996 (including Protected Health Information), US Children’s Online Privacy Protection Act, and Family Educational Rights and Privacy Act. Examples of Sensitive Personal Information include, but are not limited to, personal financial information (including personal financial account information), sexual orientation, personal medical or health information, personal information of children under thirteen, personal education records, and social security, national identity, national insurance, and similar personal identifiers.
  1. Term of Agreement. This Agreement and the license granted hereunder commence upon use of the Application and shall remain in effect until terminated as set forth herein (the “Term”).
  1. Confidentiality.

(a) Company may terminate this Agreement at any time by written notice to Licensee or by placing a notice on the website stating the effective date of termination. In particular, the Company shall have the right to terminate this Agreement if Licensee fails to pay any Subscription Fees when due, fails to comply with the terms of this Agreement, the Terms of Service and/or Privacy Policy.  Licensee may terminate at any time this Agreement without refund by providing Company with written notice thirty (30) days in advance of the termination.

(b) Upon expiration or termination of this Agreement, the license granted hereunder shall terminate, and Licensee shall cease using and destroy all copies of the Application. Licensee shall upon request provide Company with a certificate on the fulfillment of Licensee’s obligations hereunder.

(c) Unless otherwise specified herein, termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

(d) No termination shall affect Licensee’s obligations to pay all Subscription Fees that may have become due before such termination or entitle Licensee to any refund. All payment terms of this Agreement and any provision that expressly states that it will survive or which, by its nature, must survive the completion, expiration, termination or cancellation of this Agreement, will survive the completion, expiration, termination or cancellation of this Agreement.

  1. Disclaimer of Warranties. THE APPLICATION (INCLUDING ANY RESULTS FROM THE APPLICATION) IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, SUPPLIERS, LICENSORS AND SERVICE PROVIDERS (COLLECTIVELY, “COMPANY PARTIES”), EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION OF THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
  1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ANY COMPANY PARTY HAVE ANY LIABILITY ARISING FROM OR RELATED TO (A) YOUR USE OF OR INABILITY TO USE THE APPLICATION, WHETHER WITHIN THE COMPANY PLATFORM, THE COMPANY ENVIRONMENT OR ANY OTHER PLATFORM AND ENVIRONMENT, OR THE CONTENT AND SERVICES FOR: (b) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, ERRORS, BUSINESS INTERRUPTION, COMPUTER FAILURE MALFUNCTION, OR FAILURE OF A SECURITY MECHANISM.IN NO EVENT SHALL ANY OF THE COMPANY PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.IN NO EVENT WILL THE COMPANY PARTIES’ AGGREGATE LIABILITY TO LICENSEE, ANY OF ITS AFFILIATES, OR ANY THIRD PARTY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE APPLICATION EXCEED THE AGGREGATE AMOUNT PAID BY LICENSEE IN CONNECTION WITH THIS AGREEMENT DURING THE PRIOR TWELVE MONTHS UNDER THIS AGREEMENT.THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
  1. Indemnification. You agree to indemnify, defend, and hold harmless Company and all Company Parties and any of their successors or assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to Licensee Data.
  1. Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, reexporting, releasing, or otherwise making the Application available outside the US.
  1. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
  1. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Massachusetts without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Massachusetts. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
  1. Entire Agreement. This Agreement, our Terms of Service and Privacy Policy constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.
  1. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
  1. Notice by Email. Any notice required or permitted to be sent under this Agreement shall be delivered by email to the following email address:  info@sparkai.com  Such notices shall be deemed effective on the first day following the date of receipt.
  1. Amendment. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto.
  1. Force Majeure. No failure or omission by the Company in the performance of any obligation of this Agreement will be deemed a breach of this Agreement or create any liability if the same will arise from any cause or causes beyond the control of the parties, including, but not limited to, the following: acts of God; acts or omissions of any government; any rules, regulations or orders issued by any governmental authority or by any officer, department, agency or instrumentality thereof; fire; flood; storm; earthquake; accident; war; rebellion; insurrection; riot; acts of terror, and invasion. The Company shall notify Licensee of such force majeure circumstances as soon as reasonably practical, and shall promptly undertake all reasonable efforts necessary to cure such force majeure circumstances.
  1. Independent Contractors. Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
  1. No Exclusivity. Company may perform services for, and contract with as many additional clients, persons, or licensees as Company sees fit.
  1. Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by Licensee (whether by operation of law or otherwise) without the prior written consent of Company. Company may assign this Agreement without Licensee’s consent to any corporate affiliate or to any successor by way of merger, consolidation or other corporate reorganization of Company or a sale of all or substantially all of the assets of Company
  1. Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
  1. Destruction of Data. Within 60 days of termination of this Agreement or a failure to pay Subscription Fees when due, the Company shall have the right to delete all Licensee Data.