These Online Terms of Service (“Agreement”) set out the terms on which Spiky.AI (“Spiky” “us”, “we”, or “our”) will provide you (also referred to as “your” or “user”) access to and use of certain services available on or through our website (https://www.spiky.ai/), domains, products, mobile application, or online services provided by us (collectively, “Services”). You and Spiky are referred to herein individually as a “Party” and jointly as the “Parties.”
By indicating your acceptance to this Agreement, or otherwise accessing or using the Services, you are entering into a legally binding agreement with us. You hereby represent that you are of legal age, and are otherwise fully able and competent, to enter into a binding agreement. If you are using the Services on behalf of an organization, you represent that you have the right to bind such organization to this Agreement, and the terms “you” and “user” will include both you, the individual user, and such organization. We may revise and update this Agreement from time to time without prior notice to you and will post the updated Agreement to the Services. ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Your continued use of the Services after the updated Agreement is posted to the Services constitutes your acceptance to be bound by any changes.
1. 1. General. The Services allow you to access certain information or content (which may include data, text, photos, videos, the user or visual interfaces, logos, designs, or other materials or content). On the condition that you comply with all obligations under this Agreement, Spiky hereby grants you a limited, non-exclusive, revocable, non-assignable, non-transferable right to access and use the Services, for your internal use per our documentation and policies. Nothing in this Agreement is intended to or may be construed as, conferring by implication, estoppel or otherwise, any license or other grant of right to use any patent, copyright, trademark, service mark, or other intellectual property of Spiky or any third party, except as expressly provided in this Agreement. You agree not to remove, obscure or modify any trademark legend or copyright notice, author attribution, or other notice placed on or contained within the Services. All rights not otherwise expressly granted by this Agreement are reserved to Spiky. We reserve the right to modify the Services, at our sole discretion, at any time.
1. 2. Registration. The Services include proprietary analytical software to evaluate and measure human engagement in online recorded meetings, training, and educational programs developed by Spiky (the “Software”). To use the Software, you may be required to provide us with your first name, last name, title, name of the organization, and other contact information, create a password and register with us. To the extent you are using the Software on behalf of an organization, you may need to also provide us with information in order to confirm or permit us to confirm, any relationship between you and such organization. We may also request additional information from you from time to time. You represent and warrant to us that you will provide us with accurate, current, and complete registration information. You are responsible for keeping your registration information up-to-date. You will keep your credentials and passwords confidential and are strictly responsible for all use of the Software using your credentials or passwords.
1. 3. Restrictions. You will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services, or any documentation or materials related to, or provided with, the Services; (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use, access or otherwise exploit the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to the Services; or (v) remove any proprietary notices or labels from the Services. You will use the Services only for your own internal personal per our documentation and policies, and not for the operation of a service bureau or timesharing service, or otherwise for the benefit of a third party.
2. 1. Subscription Fee. Certain features of the Software are limited to paying users. You, or a third party for your benefit, must purchase an engagement plan and pay the applicable subscription fees (“Subscription Fee”) to access the full breadth of the Software. The Subscription Fees, overage fees, or other applicable fees (collectively, “Fees”) are identified on our website for your review. Unless we separately agree with you to receive payment by another means, you will provide us (or our designated third-party payment provider) with accurate and valid credit card or other payment information and update your payment information in the event any information provided becomes invalid or incomplete. Any amounts due to us are exclusive of all sales, use, excise, service, value-added, or other taxes, duties, and charges of any kind (whether foreign, federal, state, local, or other). You shall be solely responsible for all such taxes, duties, and charges (except for taxes imposed on Spiky’s U.S. income), which may be included on the invoice we send you related to the owed Fees. You agree to gross up any payments due to us for any tax-related withholding or deduction required by applicable laws, such that you pay us the net amount owed. You will indemnify, defend, and hold Spiky harmless from any such taxes, fines, or interest for which you are responsible under this Agreement or applicable law.
2. 2. Evaluation Period. If we offer you a no-cost evaluation period of the Services, unless you cancel at least three (3) days prior to the end of the evaluation period, we will automatically convert your evaluation period into a subscription and begin billing the payment method you provide to us, as described above in Section 2.1.
2. 3. Late Payments. You shall pay interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. You will reimburse Spiky for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by you hereunder.
2. 4. Cancellation of Auto-Renew Engagement Plans. If you maintain an engagement plan, you must cancel your engagement plan at least three (3) days before your next renewal date in order to avoid the next billing period. You may cancel your engagement plan by logging into your account on the Services and canceling it there (if such functionality is provided therein), or you may send us a written notice of cancellation to support@spiky.ai specifying that you would like to cancel your engagement plan for the Software. If you cancel your engagement plan, the cancellation will be effective upon your receipt of confirmation from Spiky of the cancellation.
3. 1. Your Data. Except as otherwise provided in Sections 4 and 10, you own any data, information, or material originated by you that you submit in the course of using the Services, including the upload of any Video(s) to the Services (“Your Data”). Spiky has no ownership rights in or to Your Data. You will be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to Your Data. Your Data will be deemed to be Confidential Information pursuant to Section 9 below. You represent and warrant that you have the right and all consents necessary to provide and input Your Data into the Services and for Spiky to process Your Data as contemplated herein. Spiky will use and implement commercially reasonable measures and controls designed to protect Your Data from unauthorized use or disclosure. As used herein, “Video” means a pre-recorded online meeting, training, or education program, with a maximum sixty (60) minutes runtime, uploaded to the Services.
3. 2. Warranty. You represent and warrant that you own all rights in and to Your Data or, with respect to any of Your Data you do not own, you have the authority to input and upload Your Data to the Services, grant the rights provided under this Agreement, and you obtained any and all consents required by law, regulations, or third parties, including participants in any Video(s), prior to submitting or uploading Your Data to the Services. You agree that Your Data and its use hereunder shall not infringe any third-party intellectual property rights, nor violate any rights of privacy or publicity, nor be defamatory, libelous, vulgar, profane, or obscene, nor violate any regulation or other right, privilege or interest of any third party.
3. 3. Your Responsibilities. Spiky does not guarantee the accuracy, integrity, quality, legality, reliability, or appropriateness of Your Data. You shall not: (A) upload or otherwise create or make available to Spiky any (i) data that (a) is unlawful, illegal or that violates the rights of any third parties, (b) displays or depicts a child less than thirteen (13) years old, without the prior written consent of the child’s parent or legal guardian; (c) Spiky does not have a right to transmit or create due to any law, rule, regulation or other obligation, or (d) constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any regulation, rule or standards issued thereunder, or (ii) material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (B) use, create, upload or otherwise transmit any of Your Data that infringes any intellectual property or other proprietary rights of any third party; (C) interfere with or disrupt the networks connected to the Services; or (D) violate any applicable law, rule or regulation, including those regarding export control or privacy.
4. 1. Spiky Technology. You acknowledge and agree that as between you and Spiky, all right, title and interest in and to the Services (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement, and assembly of information) and other content on or made available through the Services, other than Your Data), any related documentation, the Spiky Technology, and all learnings, artificial intelligence models, or algorithms of the foregoing (including all trade secrets and other intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by Spiky or its licensors or other providers, and this Agreement in no way conveys any right, title or interest to you in the Services or the Spiky Technology other than a limited right to use the Services in accordance with the terms and conditions herein. No right or license is granted hereunder to you under any trademarks, service marks, trade names, or logos. You shall not remove any proprietary notices or legends in Spiky Technology, any output thereof, or related documentation. As used herein, “Spiky Technology” means all of Spiky’s proprietary technology (including the Software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to Subscriber by Spiky in providing the Services.
4. 2. Copyright. The Services and Spiky Technology are copyrighted as collective work under the United States copyright laws and are protected by other laws. Trademarks, logos, and service marks displayed on the Services are registered and/or unregistered trademarks of Spiky, its licensors or content providers, or other third parties. You acknowledge that Spiky is the exclusive owner of the Services and Spiky Technology. Any unauthorized use of our intellectual property, including our marks, our copyrighted material, and our trade dress, is strictly prohibited and may be prosecuted to the fullest extent of the law.
4. 3. License to Spiky Technology. Subject to the terms and conditions herein, and the payment of all incurred Fees (if applicable), we grant you a non-exclusive, limited, revocable right to access and use the Spiky Technology as necessary for your use of the Services. We reserve all other rights. For clarity, you shall not distribute or otherwise commercialize Spiky Technology.
4. 4. Feedback. Any comments, feedback, suggestions, ideas, or other submissions related to the Services or Spiky Technology (collectively “Feedback”) that you provide to us, you grant Spiky an irrevocable, worldwide, full-paid-up, assignable right and license to the Feedback. We will be entitled to use, reproduce, disclose, publish, distribute, and otherwise exploit in any manner, all Feedback, without restriction and without compensating you in any way. We have no obligation to maintain any Feedback in confidence or to respond to any Feedback.
5. 1. Suspension. We reserve the right to suspend your access to the Services at any time if we reasonably believe (i) you are in breach of this Agreement, or (ii) your access or use of the Services violates any law or regulation or is disrupting other subscribers’ access to or use of the Software.
5. 2. Termination. We may terminate this Agreement or stop offering the Services at any time, provided that, if we terminate this Agreement for convenience (and not, without limitation, for your breach) and you have a pre-existing subscription to the Services, we will refund to you a pro-rata portion of your pre-paid Subscription Fee associated with the remaining term of your terminated engagement plan. Upon termination, you agree: (a) we have no obligation to return any of Your Data to you; (b) we have the right (but have no obligation) to delete all of Your Data; (c) to immediately stop using the Services; (d) that the rights provided under this Agreement to you are revoked in entirety; (e) that we shall not be liable to you, or any third party, for compensation, reimbursement, or damages for termination of access to the Services; and (f) you will remain liable for any previous use of Services unless prohibited by applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPIKY MAKES NO PROMISES ABOUT THE SERVICES OR SPIKY TECHNOLOGY. THE SERVICES AND SPIKY TECHNOLOGY ARE PROVIDED “AS IS”, WITH ALL FAULTS. WE DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; (ii) THAT THE SERVICES OR SPIKY TECHNOLOGY WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; AND (iii) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES OR SPIKY TECHNOLOGY. WE MAY PAUSE OR INTERRUPT THE SERVICES AT ANY TIME, AND YOU SHOULD EXPECT PERIODIC DOWNTIME FOR UPDATES TO THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE WILL CREATE ANY OTHER WARRANTY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL WE BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES OR SPIKY TECHNOLOGY, EVEN IF WE HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES, OR SPIKY TECHNOLOGY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU TO US DURING THE PRIOR TWELVE (12) MONTHS (OR IF YOU HAVE NOT SUBSCRIBED, TO THE AMOUNT OF $10).
YOU WILL INDEMNIFY AND HOLD THE US, AND OUR LICENSORS, PROVIDERS, AND AGENTS, HARMLESS AGAINST ANY AND ALL LIABILITIES ARISING OUT OF OR RELATED TO YOUR OR ANY THIRD PARTY USER’S BREACH OF THIS AGREEMENT, BREACH OF CONFIDENTIALITY OBLIGATIONS HEREIN, YOUR OR ANY THIRD PARTY USER’S USE OF THE SERVICES OR SPIKY TECHNOLOGY, AND YOUR DATA (EXCEPT LIABILITIES ARISING FROM OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT RELATING TO THE PROCESSING OF YOUR DATA), WE RESERVE THE RIGHT TO ASSUME THE SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF ANY THIRD-PARTY CLAIM, ACTION, SUIT OR PROCEEDING FOR WHICH YOU ARE OBLIGED TO INDEMNIFY US. YOU WILL COOPERATE WITH US WITH RESPECT TO SUCH DEFENSE AND SETTLEMENT.
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 (hereinafter referred to as “Confidential Information” of the Disclosing Party). Such information includes, without limitation, Your Data, information related to your login identifiers and credentials, and the nature and performance of your marketing programs. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted in Section 10.1 below) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing will not apply with respect to Confidential Information after five years following the termination of the Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law or court order to be disclosed; however, with respect to Confidential Information that is Your Data that is personal information in Spiky’s possession or control after such 5 years or that becomes subject to such exceptions above, Spikey agrees to continue to use commercially reasonable measures and controls designed to protect that data in Spiky’s possession or control from unauthorized use or disclosure and will comply with any laws relating to that data.
10. 1. Statistical Information. Notwithstanding anything else in the Agreement or otherwise, we may monitor your use of the Services and use or exploit Your Data in an aggregate or anonymous manner, to compile statistical and performance information related to the efficacy, provision, and operation of the Services or to develop and commercialize new products or services or artificial intelligence model training. We may make such information publicly available, provided that such information does not incorporate Your Data in a way that is directly traceable to you and/or identify your Confidential Information on a stand-alone basis. We retain all intellectual property rights in such aggregated and/or anonymous information.
10. 2. Required Disclosure. If Spiky is requested by you or required by law, subpoena, or other legal processes to produce documents, data, records, or personnel in connection with the discovery, testimony, or interviews pertaining to investigations, litigations, or disputes between you and any third parties (or your current or former employees), you will reimburse Spiky for Spiky’s reasonable fees and costs relating thereto, including the cost of counsel, retrievals of archived data, data processing, and/or other reasonable efforts.
10. 3. Assignment. You shall not assign or transfer any rights or obligations under this Agreement without prior written consent from Spiky. A change in control constitutes an assignment under this Agreement.
10. 4. Hosting Providers. You acknowledge that the Services are hosted by third-party hosting providers (the “Hosting Providers”). Spiky may change its Hosting Providers at any time. Your use of the Services is subject to any applicable restrictions or requirements imposed by the Hosting Providers. Notwithstanding any other provision of this Agreement, Spiky shall not be liable for any problems, failures, defects, or errors with the Services to the extent caused by the Hosting Providers. Spiky is not responsible for the acts and omissions of the Hosting Providers.
10. 5. Waiver. No waiver by either Party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such Party.
10. 6. Force Majeure. Spiky will not be liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, floods, storms, explosions, pandemics, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of Spiky.
10. 7. Governing Law and Venue. The laws of the State of Massachusetts will govern this Agreement and any dispute arising hereunder without giving effect to the choice of law provisions thereof. You hereby consent to jurisdiction and venue in any federal or state court located within the State of Massachusetts, and you shall not bring any suit, claim, or other cause of action except in a court within the State of Massachusetts, USA.
10. 8. Notices. You agree that an email to your email address on record will constitute formal notice under this Agreement.
10. 9. Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.
10. 10. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or another form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
10. 11. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction; provided that, the Parties shall negotiate in good faith potential modifications to this Agreement to most closely reflect their original intent for the invalid, illegal or unenforceable provision.
10. 12. Entire Agreement
. Except as otherwise expressly provided in writing, this Agreement sets forth the entire agreement between you and us regarding its subject matter and supersedes all prior promises, agreements, or representations, whether written or oral, regarding such subject matter.
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