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Terms of Service

This SparkLix for Business Online Agreement (the “Agreement”) is entered into by and between Sparklix Bio-IT Corp., a Delaware corporation, with offices at 250 Park Ave., New York, NY 10177 (“Sparklix”) and the entity agreeing to these terms (“Customer”). This Agreement is effective as of the date you click the “I Accept” button below (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click the “I Accept” button below. This Agreement governs Customer’s access to and use of the Services.

  1. Services

    1. Facilities and Data Transfer. All facilities used to store and process Customer Data will adhere to highest security standards. Sparklix has implemented at least industry standard systems and procedures to ensure the security and confidentiality of Customer Data, protect against anticipated threats or hazards to the security or integrity of Customer Data, and protect against unauthorized access to or use of Customer Data. As part of providing the Services, Sparklix store and process Customer Data on Rackspace, please review SLA terms at Definition section of this agreement. By using the Services, Customer consents to this transfer, processing and storage of Customer Data.
    2. Modifications to the Services. Sparklix may make commercially reasonable changes to the Services, from time to time. If Sparklix makes a material change to the Services, Sparklix will inform Customer, provided that Customer has subscribed with Sparklix to be informed about such change.
    3. Ads. The default setting for the Services is one that does allow Sparklix to serve Ads. Customer may change this setting in the Admin Console, which constitutes Customer’s authorization for Sparklix to serve Ads or not. If Customer enables the serving of Ads, it may revert to the default setting at any time and Sparklix will serve Ads.

  2. Customer Obligations

    1. Compliance. Customer will use the Services in accordance with the Acceptable Use Policy. Sparklix may make new applications, features or functionality available from time to time through the Services, the use of which may be contingent upon Customer’s agreement to additional terms.
    2. Aliases. Sparklix may monitor data transfer and emails sent to these aliases to allow Sparklix to identify Services abuse.
    3. Customer Administration of the Services. Customer may specify one or more Administrators through the Admin Console who will have the rights to access Admin Account(s) and to administer the End User Accounts. Customer is responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); and (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with the Agreement. Customer agrees that Sparklix’s responsibilities do not extend to the internal management or administration of the Services for Customer and that Sparklix is merely a data-processor.
    4. End User Consent. Customer’s Administrators may have the ability to access, monitor, use, or disclose data available to End Users within the End User Accounts. Customer will obtain and maintain all required consents from End Users to allow: Customer’s access, monitoring, use and disclosure of this data and once Sparklix providing Customer with the ability to do so.
    5. Unauthorized Use. Customer will use commercially reasonable efforts to prevent unauthorized use of the Services, and to terminate any unauthorized use. Customer will promptly notify Sparklix of any unauthorized use of, or access to, the Services of which it becomes aware.
    6. Restrictions on Use. Unless Sparklix specifically agrees in writing, Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease or the functional equivalent, the Services to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services for High Risk Activities; or (e) use the Services to store or transfer any Customer Data that is controlled for export under Export Control Laws.

  3. Payment

    1. Payment. All payments due are in U.S. dollars unless otherwise indicated on the Order Page or invoice.
      1. Credit Card Orders. Fees for Credit Card orders are due immediately upon order placement. Sparklix will bill the credit card provided via the Order Page for all applicable Fees when due. If credit card authorizations or charge attempts are declined, Sparklix may immediately disable or cancel the Services, in its sole discretion.
      2. Invoice Orders. Fees for orders where Sparklix issues an invoice are due upon Customer’s receipt of the invoice, and are considered delinquent thirty days after the date of the applicable invoice.
    2. Delinquent Payments. Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Sparklix in collecting such delinquent amounts, except where such delinquent amounts are due to Sparklix’s billing inaccuracies.
    3. Taxes. Customer is responsible for any Taxes, and Customer will pay Sparklix for the Services without any reduction for Taxes. If Sparklix is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides Sparklix with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to Sparklix, Customer must provide Sparklix with an official tax receipt or other appropriate documentation to support such payments.

  4. Technical Support Services

    1. By Sparklix. If Customer cannot resolve a support issue, then Customer may escalate the issue to Sparklix by email, online forum and phone.

  5. Suspension

    1. Of End User Accounts by Sparklix. If Sparklix becomes aware of an End User’s violation of the Agreement, then Sparklix may specifically request that Customer Suspend the applicable End User Account. If Customer fails to comply with Sparklix’s request to Suspend an End User Account, then Sparklix may do so. The duration of any Suspension by Sparklix will be until the applicable End User has cured the breach which caused the Suspension.
    2. Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then Sparklix may automatically Suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Emergency Security Issue. If Sparklix Suspends an End User Account for any reason without prior notice to Customer, at Customer’s request, Sparklix will provide Customer the reason for the Suspension as soon as is reasonably possible.

  6. Confidential Information

    1. Obligations. Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Affiliates, employees and agents in violation of this Section.
    2. Exceptions. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.

  7. Intellectual Property Rights; Brand Features

    1. Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Sparklix owns all Intellectual Property Rights in the Services.
    2. Display of Brand Features. Sparklix may display only those Customer Brand Features authorized by Customer (such authorization is provided by Customer uploading its Brand Features into the Services), and only within designated areas of the Service Pages. Customer may specify the nature of this use using the Admin Console. Sparklix may also display Sparklix Brand Features on the Service Pages to indicate that the Services are provided by Sparklix. Neither party may display or use the other party’s Brand Features beyond what is allowed in this Agreement without the other party’s prior written consent.
    3. Brand Features Limitation. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights in those Brand Features. A party may revoke the other party’s right to use its Brand Features pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.
  8. Publicity. Neither party may make any public statement regarding the relationship contemplated by this Agreement without the other party’s prior written consent.

  9. Representations, Warranties and Disclaimers

    1. Representations and Warranties. Each party represents that it has full power and authority to enter into the Agreement. Each party warrants that it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable (including applicable security breach notification law). Sparklix warrants that it will provide the Services in accordance with the applicable SLA.
    2. Disclaimers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT.

  10. Term

    1. Agreement Term. This Agreement will remain in effect for the Term.
    2. Services Term and Purchases During Services Term. Sparklix will provide the Services to Customer during the Services Term. Unless the parties agree otherwise in writing, End User Accounts purchased during any Services Term will have a prorated term ending on the last day of that Services Term.
    3. Auto-Renewal. At the end of each Services Term, the Services (and all End User Accounts previously purchased) will automatically renew for an additional Services Term of twelve months by default. Customer will pay Sparklix the then-current yearly Fees for each renewed End User Account unless Customer and Sparklix mutually agree otherwise. Customer may alter the number of End User Accounts to be renewed by communicating the appropriate number of accounts to be renewed to Sparklix via the Admin Console.
    4. Disabling Automatic Renewal. Customer may disable the automatic renewal option via the Admin Console or by email Sparklix support. If Customer disables this automatic renewal setting, Customer’s End User Accounts will terminate upon the conclusion of the then current term.
    5. Requesting End User Accounts. Customer may request End User Accounts by: (i) notifying its designated Sparklix Account Manager or Sparklix support; or (ii) ordering End User Accounts via the Admin Console.
    6. Revising Rates. Sparklix may revise its rates for the following Services Term by providing Customer written notice (which may be by email) at least thirty days prior to the start of the following Services Term.

  11. Termination

    1. Termination for Breach. Either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
    2. Effects of Termination. If this Agreement terminates, then: (i) the rights granted by one party to the other will cease immediately (except as set forth in this Section); (ii) Sparklix will provide Customer access to, and the ability to export, the Customer Data for a commercially reasonable period of time at Sparklix’s then-current rates for the applicable Services; (iii) after a commercially reasonable period of time and Customer approve, Sparklix will delete Customer Data by removing pointers to it on Sparklix’s active and replication servers and overwriting it over time; and (iv) upon request each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party.

  12. Indemnification

    1. By Customer. Customer will indemnify, defend, and hold harmless Sparklix from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim: (i) regarding Customer Data; (ii) that Customer Brand Features infringe or misappropriate any patent, copyright, trade secret or trademark of a third party; or (iii) regarding Customer’s use of the Services in violation of the Acceptable Use Policy.
    2. By Sparklix. Sparklix will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim that Sparklix’s technology used to provide the Services or any Sparklix Brand Feature infringe or misappropriate any patent, copyright, trade secret or trademark of such third party. Notwithstanding the foregoing, in no event shall Sparklix have any obligations or liability under this Section arising from: (i) use of any Services or Sparklix Brand Features in a modified form or in combination with materials not furnished by Sparklix, and (ii) any content, information or data provided by Customer, End Users or other third parties.

    3. Possible Infringement

      1. Repair, Replace, or Modify. If Sparklix reasonably believes the Services infringe a third party’s Intellectual Property Rights, then Sparklix will: (a) obtain the right for Customer, at Sparklix’s expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe.
      2. Suspension or Termination. If Sparklix does not believe the foregoing options are commercially reasonable, then Sparklix may suspend or terminate Customer’s use of the impacted Services. If Sparklix terminates the impacted Services, then Sparklix will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of such Services.

  13. Limitation of Liability

    1. Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
    2. Limitation on Amount of Liability. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO SPARKLIX HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
    3. Exceptions to Limitations. These limitations of liability apply to the fullest extent permitted by applicable law but do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, or indemnification obligations.

  14. Miscellaneous

    1. Notices. Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other party’s and primary point of contact and (b) notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.
    2. Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
    3. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
    4. No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
    5. Severability. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.
    6. No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
    7. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
    8. Governing Law. This Agreement is governed by the New York law, excluding that state’s choice of law rules. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN NEW YORK STATE.
    9. Amendments.Any amendment must be in writing and expressly state that it is amending this Agreement.
    10. Survival. The following sections will survive expiration or termination of this Agreement: Section 3, 6, 7.1, 11.2, 12, 13, 14 and 15.
    11. Entire Agreement. This Agreement, and all documents referenced herein, is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.
    12. Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order Page, the Agreement, and the terms located at any URL. If Customer signs a physical agreement with Sparklix to receive the Services, the physical agreement will override this online Agreement.
    13. Counterparts. The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.

  15. Definitions

    • “Acceptable Use Policy” means the acceptable use policy for the Services available at Annex A of this agreement or such other URL as Sparklix may provide.
    • “Account Manager” means the Sparklix business person working with Customer regarding Customer’s purchase of the Services.
    • “Admin Account(s)” means the administrative account(s) provided to Customer by Sparklix for the purpose of administering the Services. The use of the Admin Account(s) requires a password, which Sparklix will provide to Customer.
    • “Admin Console” means the online tool provided by Sparklix to Customer for use in reporting and certain other administration functions.
    • “Administrators” mean the Customer-designated technical personnel who administer the Services to End Users on Customer’s behalf.
    • “Ads” means online advertisements displayed by Sparklix to End Users.
    • “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.
    • “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
    • “Confidential Information” means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances.
        Customer Data is Customer’s Confidential Information.
    • “Customer Data” means data, provided, generated, transmitted or displayed via the Services by Customer or End Users.
    • “Domain Service” means a service provided by Sparklix to Customer purely for Customer’s convenience, where Customer may, through a Sparklix-provided interface, register domain names through, or transfer domain names to, Registrar Partners.
    • “Emergency Security Issue” means either: (a) Customer’s use of the Services in violation of the Acceptable Use Policy, which could disrupt: (i) the Services; (ii) other customer’s use of the Services; or (iii) the Sparklix network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
    • “End Users” means the individuals Customer permits to use the Services.
    • “End User Account” means a Sparklix-hosted account established by Customer through the Services for an End User.
    • “Export Control Laws” means all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.
    • “Fees” means the amounts invoiced to Customer by Sparklix for the Services as described in an Order Page or invoice.
    • “Help Center” means the Sparklix help center accessible at https://my.sparklix.com/help/, or other such URL as Sparklix may provide.
    • “High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
    • “Initial Services Term” means the term for the applicable Services beginning on the Service Commencement Date and continuing for twelve months.
    • “Intellectual Property Rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
    • “Notification Email Address” means the email address designated by Customer to receive email notifications from Sparklix. Customer may change this email address through the Admin Console.
    • “Order Page” means the online order page Customer completes in signing up for the Services, and which contains: (i) the Services being ordered; (ii) Fees; (iii) number of, and Initial Services Term for, End User Accounts; and (iv) a valid credit card.
    • “Purchase Order” means a Customer issued purchase order.
    • “Service Commencement Date” is the date upon which Sparklix makes the Services available to Customer, and will be within one week of Sparklix’s receipt of the completed Order Page, unless otherwise agreed by the parties.
    • “Service Pages” mean the web pages displaying the Services to End Users.
    • “Services” means the Sparklix Core Services (e.g. Sparklix Business Premier Edition or Sparklix for Business) provided by Sparklix and used by Customer under this Agreement.
    • “Services Term” means the Initial Services Term and all renewal terms for the applicable Services.
    • “SLA” means the Service Level Agreement located here that supported by Amazon Web Services: http://aws.amazon.com/ec2-sla/, or such other URL as Sparklix may provide.
    • “Suspend” means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
    • “Taxes” means any duties, customs fees, or taxes (other than Sparklix’s income tax) associated with the sale of the Services, including any related penalties or interest.
    • “Term” means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of (i) the end of the last Services Term or (ii) the Agreement is terminated as set forth herein.

Annex A - Acceptable Use Policy

To uphold the quality and reputation of Sparklix, your use of the Service is subject to these program policies. If you are found to be in violation of our policies at any time, as determined by Sparklix in its sole discretion, we may warn you or suspend or terminate your account.

All capitalised terms used herein have the meanings stated in the License Agreement (the "Agreement"), unless stated otherwise.


Prohibited Actions

In addition to (and/or as some examples of) the violations described in the Agreement, You may not and may not allow any third party, including your End Users, to generate or facilitate unsolicited commercial email ("Spam"). Such activity includes, but is not limited to:

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