Terms & Conditions

1. Definitions

Capitalised terms have the meaning stated below or in the section where they are first used.

1.1. "Affiliate" means your subsidiaries, parent company, and members of your corporate family so long you control the entity, are controlled by the entity, or are under common control with the entity; for this purpose "control" means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity or otherwise having the power to control the decision making of the entity.

1.2. "Aggregated Data" means aggregated, non-personally identifiable User Generated Content or analysis and insights derived from User Generated Content in the delivery of Services.

1.3. "Agreement" refers collectively to your Order(s) and these Terms and Conditions.

1.4. "Applicable Laws" means all laws and regulations by which a party is bound, including, but not limited to, laws relating to privacy, data protection, or marketing.

1.5. "Authorised Users" means your or your Affiliate's employees, representatives, consultants, contractors, or agents who are authorised to access the Services.

1.6. "Confidential Information" means any non-public information that a party (the "recipient") receives from or learns about the other party (the "discloser") as a result of activities contemplated by the Agreement that the recipient should reasonably understand to be confidential, given the nature of the information or the circumstances of its disclosure, and include Your Data and information about the Discloser’s business plans, technical data, and the terms of the Order, but not including any information that is developed by the recipient independently and without reference to the discloser’s Confidential Information, or information that is or becomes available from a source other than discloser so long as the source did not, to recipient’s knowledge, acquire the information as a result of a violation of a duty of confidentiality to discloser. For clarity, information you learn about Buzzspark or its Services as part of the relationship contemplated by this Agreement is Buzzspark's Confidential Information.

1.7. "Intellectual Property Rights" means all industrial and intellectual property rights including, but not limited to, copyright (both present and future), Confidential Information (including know-how and trade secrets), patents, designs, and trademarks, and in each case whether registered or not.

1.8. "Order" means either of the following that have been signed or submitted by you and accepted by Buzzspark: (i) an order form provided to you by Buzzspark for your signature, or (ii) a web form that you submit on the Site.

1.9. "Our Content" means text, videos, graphics, animations, images, logos and other materials, on any media, that are protected by copyright, trademark, trade dress, or similar laws worldwide that Buzzspark publishes or distributes on its Site or via its Services other than Your Data or User Generated Content.

1.10. "Our Technology" means Buzzspark software and services technology, including interfaces, management tools, and analytics tools used by Buzzspark to provide the Services, all related software, documentation, all modifications and derivative works of any of them, and all related intellectual property rights worldwide.

1.11. "Professional Services" means any additional services provided by or procured by Buzzspark on your behalf that are specified on a Statement of Work and not included in the Services.

1.12. "Public Platform" means third party platforms that publish subscriber content that you may choose to connect to, receive and display UGC from via the Services such as Facebook®, Instagram®, and other social media platforms.

1.13. "Services" means any media aggregation and management tools and services described in your Order including Professional Services or services that Buzzspark otherwise makes available to you via the buzzspark.io domain or any of its sub-domains.

1.14. "Site" means www.buzzspark.io, or any other website operated by Buzzspark for the purpose of offering or providing Services, including any subdomains.

1.15. "Statement of Work" means any agreement executed by Buzzspark and you that defines any Professional Services to be provided by Buzzspark.

1.16. "Subscription Term" means your initial subscription term to the Services as specified on the Order and any subsequent renewal terms, collectively.

1.17. "User Generated Content" or "UGC" means any data or content including aggregate, anonymous or derivative versions of such data or content made publically available on Public Platforms and is able to be accessed by means of the Services or Moderation Services such as posts, images, videos, profile information, location data and any other information or materials provided as publicly available information.

1.18. "Your Data" means the activity and other information such as profile information of Authorised Users within the Services and content that you process and manage by means of the Service including content that you develop or acquire independently from the Services but manage by means of the Services ("Your Original Content") and content discovered on Public Platforms by means of the Services or Professional Services ("User Generated Content" or "UGC").

2. General Terms

2.1. Provision of Services
During the Subscription Term, Buzzspark will provide the Services and support as set out in the Order in accordance with the terms, conditions and restrictions set out in the Agreement. Buzzspark will use commercially reasonable efforts to make the Services available 24 x 7, year round, excluding downtime for maintenance and emergencies. Buzzspark will provide access to online support materials, and will respond to your requests for reasonable technical assistance via the methods and during the support hours as stated in the Order.

2.2. Moderation Services
If your Order includes Moderation Services, we will assign staff to identify content of the type you identify as desirable in written notices provided to us (the "Parameters"). Our staff will use their reasonable judgment to decide if content is desirable based on the Parameters, but you acknowledge that humans make mistakes, and that reasonable minds can differ as to whether a particular content item meets the Parameters. You agree that Moderation Services are not "Services" as that term is used in the Agreement, and that Buzzspark has no liability whatsoever from errors in providing the Moderation Services except to the extent arising from Buzzspark's gross negligence or wilful misconduct.

2.3. License
Buzzspark grants you and your Authroised Users a non-exclusive, non-transferable, non-sub-licensable, royalty-free (other than any fees due under this Agreement), license during the Subscription Term to use Our Technology as part of the Services, in accordance with this agreement.

2.4. Conditions and Restrictions
Your use of Our Technology and Services is subject to the following conditions and restrictions:

2.4.1. No Unlawful Use
You may not use the Services to send messages to any person who has not affirmatively consented to such receipt (and has not subsequently withdrawn such consent). You may not use the Services to store or communicate defamatory, offensive, infringing, fraudulent, malicious, or otherwise unlawful content.

2.4.2. No Resale of Services
You may not resell the Services; you may not use the Services for the benefit of any person other than yourself and your Affiliates.

2.4.3. Intellectual Property Rights
You may not modify, copy or create derivative works based on the Service or Our Technology. You may not copy any Intellectual Property Rights in the user interface or functional features of the Services or Our Technology without prior approval and written consent from Buzzspark.

2.4.4. Competing Services
You may not access the Services or Our Technology for the purpose of creating a competing service. You may not grant access to the Services by any unauthorized person, including, without limitation, a competitor of Buzzspark. You may not use any Intellectual Property Rights owned or licensed by Buzzspark to provide assistance to any other person or entity in building or developing a competitive product or service to the Services or Our Technology.

2.4.5. No Unauthorised Access
You may not gain unauthorized access to, or disrupt the integrity or performance of the Services or the data contained therein.

2.4.6. No Benchmarking or Testing
You may not use the Services or Our Technology for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication or other disclosure without the prior written approval of Buzzspark. You may not conduct load testing, penetration tests, port scans, vulnerability assessments, or other similar performance or security testing without the prior written approval and supervision of Buzzspark, results of which will be deemed Confidential Information of Buzzspark.

2.4.7. No Reverse Engineering
Except to the extent permitted by applicable law notwithstanding this limitation, you may not disassemble, decompile, reverse engineer or attempt to discover any underlying algorithm or method embodied by the Our Technology, and then on thirty (30) days advance written notice to Buzzspark.

2.4.8. No Assignment, Transfer or Sublicensing
Except as expressly permitted in this Section you may not sublicense, transfer, or assign the license.

3. Your Obligations

3.1. Fees
You must pay your fees when due for the entire Subscription Term of your Order as described in this Agreement. You must not use or attempt to use the Services in a way that undermines Buzzspark’s ability to correctly calculate its fees.

3.2. Security Obligations
You must use reasonable security precautions in connection with your use of the Services, such as requiring your Authorized Users to establish reasonably secure passwords and using commercially reasonable efforts to protect your systems and data from malware. You agree that you are responsible under the Agreement for any action taken using your account credentials, even if the action was not authorized by you.

3.3. Authorised Users
You authorise Buzzspark to act on the instructions of a user who authenticates using the account credentials you have established. You are solely responsible for maintaining the user permissions and authentication credentials for your account. You are responsible for the use of the Services by your Authorised Users or any other person who gains access to the Services as a result of your failure to use reasonable security precautions.

3.4. Usage Guidelines

3.4.1. You may not use the Services or permit your users to use the Services in connection with, or in any other way that is defamatory, offensive, abusive, infringing, fraudulent, malicious, or illegal as determined by Buzzspark in its reasonable discretion.

3.4.2. You agree to comply with:

3.4.2.1. Any and all usage guidelines set out by the Public Platforms in respect of User Generated Content;

3.4.2.2. Any requirements or restrictions imposed on usage of User Generated Content by the respective owners, which may include "all rights reserved" notices, creative commons licenses or other terms and conditions anyone has attached to his or her UGC such as marking a photo as "private";

3.4.2.3. Any direction to remove from the Services within 24 hours any UGC or other information that the respective owner of UGC or Buzzspark has asked to be removed; and

3.4.2.4. Any other guidelines in respect of a Public Platform or UGC as advised by Buzzspark, in writing, from time to time.

3.5. Fair Use Policy
In the event that you are ingesting, storing or transferring content through the Services that is beyond reasonable levels of any Data Storage or Bandwidth Limits as stated in the Order, Buzzspark reserves the right to assess overage charges on further content ingestion, storage or transfer through the Services at rates defined on the Order. Reasonable levels are defined as more than three (3) times the allocated limit in any single calendar month.

3.6. Backups
You must maintain a backup of Your Original Content at a reasonably secure location other than the Services environment.

3.7. Compliance with Law
You must use the Services in compliance with Applicable Law.

4. Disclaimer; Your agree to the following:

4.1. THE CUSTOMER ASSUMES RESPONSIBILITY AND LIABILITY FOR THE USAGE OF THE SERVICES AT ALL TIMES BY ISTELF AND AUTHORISED USERS;

4.2. BUZZSPARK DOES NOT REPRESENT OR WARRANT THAT ANY PUBLIC PLATFORM OR OTHER THIRD-PARTY NETWORK OR SYSTEM THAT THE SERVICES INTERACT WITH IS FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR IS RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID EXCEPT AS SET FORTH IN SECTION 4.4; AND

4.3. USE OF USER GENERATED CONTENT IS AT THE CUSTOMER’S OWN RISK AND BUZZSPARK DOES NOT ENDORSE, SUPPORT, REPRESENT, OR GUARANTEE THE COMPLETENESS, TRUTHFULNESS, ACCURACY, LEGALITY, OR RELIABILITY OF ANY USER GENERATED CONTENT, OR REPRESENT THAT IT WILL NOT BE HARMFUL, OFFENSIVE, DECEPTIVE, ILLEGAL, OR MISLABELLED.

4.4. BUZZSPARK REPRESENTS THAT THE USER GENERATED CONTENT IS DISPLAYED AND PROVIDED ACCURATELY AND RELIABLY TO THE CUSTOMER.

5. Third Party Integration Features

Buzzspark provides integration features that enable you to connect to and interact with third party Public Platforms such as social media sites. Buzzspark does not endorse or recommend any service for which it offers an integration feature. Your use of third party services is subject to the legal agreement between you and the third party. You should review the third party’s legal terms and privacy policies before using their services. You acknowledge that Buzzspark’s integration features may be unavailable or may not work properly if the service provider’s API (Application Programming Interface) is unavailable or if the service provider modifies its API or services in a way that impacts Buzzspark's integration features. Buzzspark will use commercially reasonable efforts to modify its integration features to maintain compatibility with the service provider’s APIs and services, but may discontinue an integration feature without liability to you if there is a change in the service that creates an unreasonable cost or operational burden to Buzzspark.

6. Fees and Payments

6.1. Fees
The fees for the Services and any Professional Services are stated in your Order. Buzzspark may not increase the fees during the initial Subscription Term of an Order, but may increase its fees for any renewal term by giving you at least thirty (30) days' notice prior to the first day of the renewal term.

6.2. Expenses
You agree to reimburse Buzzspark for all reasonable and appropriately documented expenses incurred by Buzsspark in performing any Professional Services that have been pre-approved in writing.

6.3. Taxes
All fees are exclusive of VAT or similar sales taxes which will be charged by Buzzspark in accordance with Applicable Laws. You agree to pay any taxes applicable for use of the Services or for Professional Services.

6.4. Invoicing and Payment Terms
Except as otherwise stated on the Order or Statement of Works, fees will be invoiced in full upon signing of this Agreement and will be due within thirty (30) days of the invoice date.

6.5. Payment Account and Information
You agree to keep all contact and billing information up to date in your account at all times during the Subscription Term. Unless you have made other arrangements with Buzzspark, you agree to authorise and maintain a current valid means for Buzzspark to collect its fees for the Services, such as via a credit card, at all times during the Subscription Term. Buzzspark may charge invoiced amounts to your account on the date of invoice. If paying by credit card, you (i) agree and authorise Buzzspark to use a third party to process payments, (ii) authorise Buzzspark to pass on to you any credit card processing fees, (iii) Consent to the disclosure of your payment information to such third party.

6.6. Late Payments
Except as otherwise stated on the Order or Statement of Works, any fees due to Buzzspark under this Agreement, upon which payment is not received within fourteen (14) days of the invoice due date shall accrue late payment fees equal to the lesser of (i) 4% per month, or (ii) the highest non-usurious rate allowed by Applicable Laws, in each case compounded monthly to the extent allowed by Applicable Laws. Without limitation to Buzzspark's other rights or remedies, in the event that you are more than fourteen (14) days late in your scheduled payments for any reason, you agree that Buzzspark may, at its discretion, suspend or terminate your Services, the Order, or this Agreement. If Buzzspark takes legal action to collect an overdue amount, you agree to be responsible for Buzzspark’s reasonable costs of collection, such as attorney fees and court costs. If Buzzspark suspends your account for late payment, you agree to pay Buzzspark’s reasonable reinstatement fee. If Buzzspark terminates this Agreement for late payment, you agree to the forfeiture of any payment received by Buzzspark up until the termination of this Agreement.

6.7. General
All payment obligations are non-cancellable, and all amounts paid are non-refundable even if you do not use the Services, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term, unless otherwise stated on the Order or Statement of Works, even if the Order is terminated prior to expiration, unless the termination is by you for Buzzspark’s breach.

7. Representations and Warranties

You represent and warrant to Buzzspark as of the effective date of each Order and on an ongoing basis that:

7.1. The information you submit about yourself and your activities to establish a Services account with Buzzspark and place an Order is true, correct, and complete;

7.2. You have not been the target of any legal or regulatory investigations or proceedings in connection with your business activities related to your use of the Services;

7.3. You have the rights necessary to use, modify, publish and manage Your Original Content by means of the Services, and have complied with applicable laws and regulations in the collection and development of Your Original Content, including any notice and consent requirements applicable to personal data under applicable privacy law;

7.4. Your use of UGC is in accordance with the legal terms of use of the Public Platforms; and

7.5. Each third party service provider with whom you interact using the Services has given you any permissions or licenses that may be required for your interaction with them using the Services.

8. Confidential Information

8.1. The Recipient will:

8.1.1. Protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own Confidential Information of similar nature, but with no less than reasonable care,

8.1.2. Not use any Confidential Information for any purpose outside the scope of this Agreement,

8.1.3. Not disclose Confidential Information to any third party, except Buzzspark’s third party service providers, and

8.1.4. Limit access to Confidential Information to its employees, contractors, advisors, and agents on a need-to-know basis.

8.2. Recipient shall return or destroy the discloser’s Confidential Information on request, except as necessary for reasonable and customary business record-keeping purposes.

8.3. Recipient is responsible for a breach of this Section by any person to whom it has disclosed the discloser’s Confidential Information to the same extent as for its own breach of this Section.

8.4. Upon notice to the Discloser, the Recipient may disclose Confidential Information if required to do so under any Applicable Laws, regulation, subpoena, or legal process.

9. Copyright and Content Ownership

9.1. As between you and Buzzspark, Buzzspark retains all Intellectual Rights in the Services, including, without limitation, in the user interface, source codes and methodologies. Buzzspark does not own, nor does it claim to own, any third party data as part of the Services, including Public Platforms, APIs, Your Data and User Generated Content.

9.2. As between you and Buzzspark, you retain all Intellectual Property Rights in Your Data.

9.3. You grant Buzzspark all necessary rights to use Your Data for the purposes of (i) performing the functions of the Services, (ii) providing information to Buzzspark users such as news, updates and improvements to the Services, (iii) identifying Buzzspark users who have previously registered with Buzzspark, and (iv) otherwise performing its obligations under this Agreement.

9.4. You grant Buzzspark a royalty-free, non-exclusive, perpetual, irrevocable, worldwide, unconditional, transferrable, sub-licensable license to use, copy, make, modify, sell, distribute, or commercialise, in modified or unmodified form, any suggestions, enhancement requests, recommendations, or other feedback provided by you or your Authorised Users relating to the functionality of the Services or Professional Services, including, without limitation, by incorporating the same into the Services, and without any accounting to you, provided this shall not include any Confidential Information.

9.5. You may not copy any part of the Services or mirror the Services on any site or system, except that you may download and print copies of documentation for the Services as reasonably necessary for your permitted use of the Services, provided that you use the documentation in the exact form published, retain all branding and proprietary notices, and do not transfer the documentation to any other person. You may not remove any proprietary notices displayed on the documentation or other Services materials. Except for rights expressly granted in this Agreement, we retain all right, title and interest in and to our Services, Our Technology, Our Content and all related intellectual property rights. No rights in intellectual property may arise by implication or estoppel.

9.6. So that we may improve and promote our Services, we may use, display, and commercially exploit anonymous Aggregated Data. We may disclose anonymous Aggregated Data to third parties and may transfer or sublicense its rights with respect to anonymous Aggregated Data.

9.7. We do not pre-screen or periodically screen or review any content uploaded to or used in connection our Services, but we reserve the right, in our sole discretion, to screen and review any content uploaded to or used in connection with our Services, and to remove any content found to violate these terms and conditions.

10. Term and Termination

10.1. Term
The initial Subscription Term of each Order begins on Order effective date and continues for the period stated in the Order. On expiration of the initial Subscription Term, the Order renews for consecutive renewal Subscription Terms of the same length as the initial Subscription Term, unless either you or Buzzspark give a notice of non-renewal on or before the last day of the initial Subscription Term or the then current renewal Subscription Term, as applicable.

10.2. Termination
Unless otherwise specified on the Order, either party may terminate this agreement (i) upon 30 days prior written notice to the other party of a material breach by the other party, if such breach remains uncured at the end of such period, (ii) your breach of the Agreement more than three (3) times in any twelve (12) month period even if each individual breach is not material, and Buzzspark may terminate for breach on such grounds, even if each breach has been cured, (iii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, or assignment for the benefit of creditors or similar proceeding, or (iv) immediately upon written notice if the other party undergoes a change of control in favour of a direct competitor of the terminating party. Upon any termination by you, Buzzspark will refund to you any prepaid fees for the remainder of its Subscription Term after the date of termination. If Buzzspark terminates this Agreement, no fees shall be refunded, and all contractually committed fees shall become immediately due and payable to Buzzspark.

10.3. Suspension
Without prejudice to its termination rights, Buzzspark may temporarily suspend your access to the Services and provide reasonable notice in the event that you fail to pay undisputed invoices when due or are in material breach of this Agreement, including, without limitation under section 3 or by using the Service in a manner that materially degrades performance of the Service or creates a material security vulnerability. Buzzspark will reinstate your access to the Services when the grounds for suspension are cured unless Buzzspark has already terminated the Agreement as described in this Section.

10.4. Return of Your Original Content
You are responsible for exporting Your Original Content from the Services prior to expiration of the Agreement. If Buzzspark terminates your Services for breach, Buzzspark will retain Your Original Content for at least fifteen (15) days from the effective date of termination. If you wish to export Your Original Content following a termination for breach, Buzzspark will either, at its option, enable short term access to the Services at a scheduled time so that you may export Your Original Content, or export Your Original Content using its standard export tools. Buzzspark has no obligation to retain Your Original Content after the fifteen (15) day period and may destroy Your Original Content.

11. Disclaimer of Warranties

BUZZSPARK'S SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH NO WARRANTIES WHATSOEVER. BUZZSPARK AND EACH AUTHORISED USER OF THE SERVICES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. WITHOUT LIMITING THE FOREGOING: BUZZSPARK AND EACH AUTHORISED USER OF THE SERVICES DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES AND PROFESSIONAL SERVICES; BUZZSPARK DISCLAIMS ALL LIABILITY FOR ANY CLAIMS, DAMAGES, LOSSES, COSTS OR EXPENSES (INCLUDING ATTORNEY’S FEES) RELATED TO THE FOLLOWING, AND DOES NOT WARRANT THAT (I) THE SERVICES AND PROFESSIONAL SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS, (II) THE SERVICES AND PROFESSIONAL SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES AND PROFESSIONAL SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES AND PROFESSIONAL SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SERVICES AND PROFESSIONAL SERVICES WILL BE CORRECTED; BUZZSPARK AND EACH AUTHORISED USER OF THE SERVICES DISCLAIM ANY WARRANTIES FOR ANY INFORMATION, CONTENT OR ADVICE OBTAINED THROUGH THE SERVICES AND PROFESSIONAL SERVICES; AND, BUZZSPARK AND EACH AUTHORISED USER OF THE SERVICES DISCLAIM ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED BY THE SERVICES. APIs MAY NOT BE AVAILABLE AT ALL TIMES. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES AND PROFESSIONAL SERVICES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LIABILITY, CLAIM, DAMAGES, LOSS, COST OR EXPENSE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, THAT RESULTS FROM OR ARISES FROM YOUR USE OF THE SERVICES AND PROFESSIONAL SERVICES.

12. Limitations of Liability

WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, BUZZSPARK, AND ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AFFILIATES AND AGENTS, SHALL NOT BE LIABLE TO ANY USER, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR (A) ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS, REVENUES AND BUSINESS, ARISING OUT OF, UNDER OR RELATING TO THESE TERMS AND CONDITIONS, OR (B) ANY DAMAGES OF ANY KIND ARISING OUT OF, UNDER OR RELATING TO THE SERVICES OR PROFESSIONAL SERVICES IN EXCESS OF THREE TIMES THE MOST RECENT MONTHLY FEE PAID BY SUCH USER IN CONNECTION WITH THE SERVICES, IF ANY, OR $100, WHICHEVER AMOUNT IS GREATER. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE, AND SHALL NOT APPLY TO ANY DAMAGE THAT THE SERVICES MAY CAUSE YOU INTENTIONALLY OR KNOWINGLY IN VIOLATION OF THESE TERMS AND CONDITIONS OR APPLICABLE LAW, OR AS OTHERWISE MANDATED BY APPLICABLE LAW THAT CANNOT BE DISCLAIMED FROM BY THESE TERMS AND CONDITIONS. BUZZSPARK DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD PARTY PRODUCTS THAT YOU USE. BUZZSPARK’S LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.

13. Indemnification

You shall, and hereby agree to, indemnify and hold harmless, Buzzspark, and its officers, directors, shareholders, employees, affiliates and agents, from any and all claims, losses, damages, liabilities and any other costs and expenses (including legal fees), arising from or related to your or your Authorised Users' (i) failure to comply with these Terms and Conditions, (ii) ingestion or use of User Generated Content using the Services, or (iii) any use of, access to or other activity engaged in, on or through the Services or Professional Services. You agree that if a third party asserts a legal claim against Buzzspark or any of its officers, members, managers, employees, staff, personnel, agents, licensors or suppliers (each a "Buzzspark Person") arising from your or your Authorised Users' use of the Services or any violation of these Terms or any Order, including your breach of a representation or warranty on any basis other than the gross negligence or misconduct of a Buzzspark Person, you will pay all reasonable costs of defending the claim, including reasonable legal fees, and pay any damages awarded to the third party or paid to the third party by Buzzspark as a reasonable settlement. You agree that Buzzspark may control the defence of the claim at its option, or may require you to defend the claim directly. If Buzzspark elects to control the defence of the claim, you will reimburse Buzzspark for its reasonable defence costs and expenses as incurred. In the case of a claim of Intellectual Property Rights infringement in respect of the Services, Buzzspark may, at its sole discretion and expense (i) procure for you the right to continue using the Services under the terms of this Agreement, (ii) replace or modify the Services to be non-infringing without material decrease in functionality, and (iii) if the aforementioned options are not reasonably applicable, terminate this Agreement and refund you all prepaid Fees for the remainder of your Subscription Term after the date of termination.

14. Miscellaneous

14.1. Revisions and Errata
Buzzspark could include technical, typographical, or photographic errors. Buzzspark does not warrant that any of the materials on the Services are accurate, complete, or current. Buzzspark may make changes to the Services at any time without notice. Buzzspark does not, however, make any commitment to update the Services.

14.2. Links
Buzzspark has not reviewed all of the sites linked to the Services and is not responsible for the content of any such linked website. The inclusion of any link does not imply endorsement by Buzzspark of the site or application. Use of any such linked website is at the user’s own risk.

14.3. Modifications; No Waiver
Buzzspark reserves the right to revise these Terms and Conditions at any time without notice. By using the Services, you are agreeing to be bound by the then current version of these Terms and Conditions. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

14.4. Publicity
Except as otherwise stated on the Order or Statement of Work, either party may use the name and logo of the other party in public statements, such as customer or vendor lists, with the prior written approval of the other party (not to be unreasonably withheld or delayed).

14.5. Force Majeure
Neither of us will be in breach of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organised labour action, terrorism, government restriction or other events outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

14.6. Actions Permitted
Except for actions for non-payment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

14.7. Relationship
Both parties agree that no joint venture, partnership, employment, or agency relationship exists between us.

14.8. Governing Law
Any claim under these Terms and Conditions or otherwise related to the Services, Professional Services or Buzzspark shall be governed by the English law and each of us expressly and unconditionally submits to the exclusive jurisdiction of the courts of England and Wales except that Buzzspark may seek to enforce any judgment anywhere in the world where you may have assets.

14.9. Severability
If any provision of these Terms and Conditions is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision; and if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of these Terms and Conditions will not be affected in any way.

14.10. Notices
Notice will be sent to the contract addresses set forth herein and will be deemed delivered as of the date of actual receipt.

14.10.1.To us: Buzzspark Limited, Studio 3D, Westpoint, 36-37 Warple Way, London W3 0RG United Kingdom

14.10.2.To you: Your address as provided on the Order. We may give electronic notices by general notice via the Services and may give electronic notices specific to you by email to the email addresses provided on the Order. We may give notice to you by telephone calls to the telephone numbers on the Order. It is your responsibility to notify us of changes to your contact information.

14.11. Entire Agreement
You agree that these Terms and Conditions constitute the entire, complete and exclusive agreement between you and us regarding the Services and any Professional Services, and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of these Terms and Conditions.

14.12. Waivers
Our failure to act with respect to a breach of these Terms and Conditions by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches.

14.13. Assignment
You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sales of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sales of all or substantially all of Buzzspark's assets, change of control or operation of law.

14.14. No Third-Party Beneficiaries
Nothing in this Agreement, express or implied, is intended to or shall confer upon any third-party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

14.15. Authority
Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

14.16. Precedence
In the event of a conflict between the terms of this Agreement and an Order, the terms of the Order shall control, but only as to that Order.

14.17. Informal Dispute Resolution
Each party agrees that it will not take legal action in connection with the Services, any Order, or these Terms and Conditions, unless it has first given the other party written notice of the dispute, and attempted to resolve the dispute through good faith negotiation.