Terms and Conditions
Please review these terms (the “Agreement”) carefully. By accessing or using the Self-Serve Services offered by “MXA”, “MXA URL Shortener,” “Spark Disk.” (“MXA”, “MXA URL Shortener,” “Spark Disk,””, “we” or “us”), you are confirming that you have read, understand and accept this Agreement. This Agreement can be updated from time to time as set out in Section 37 below. You are responsible for regularly reviewing the most current version of this Agreement, which is published at: https://mxa.us/ though we will notify you of any changes that, in our sole discretion, materially impact this Agreement. Continued use of the Self-Serve Services after any such changes have been made will constitute your consent to such changes. When we change this Agreement, we will update the “Last Modified” date above.
This Agreement applies to the “Self-Serve Services”, which are services that you access or purchase through our website or mobile applications. Other terms may also apply to your use of the Self-Serve Services, such as the Acceptable Use Rules outlines below. By using our Self-Serve Services, you confirm that:
A. You will only use our Self-Serve Services for business and professional reasons;
B. You are at least 16 years old or otherwise able to enter into a legally binding agreement;
C. You accept and will comply with this Agreement;
D. If you are using our Self-Serve Services as a representative of an organization, you have the power to enter into legally binding agreements for the organization; and
E. You are responsible for anyone that uses our Self-Serve Services through your account(s), such as your employees, consultants, or contractors (“Authorized Users”).
“MXA”, “MXA URL Shortener,” “Spark Disk,” Terminology
1. We use capitalization for terms that have a special meaning in this Agreement. While some terms are defined elsewhere, this section sets out the definitions of some key terms.
“Content” is a generic term that means all information and data (such as text, images, photos, videos, audio and documents) in any format that is uploaded to, downloaded from or appears on our Self-Serve Services.
“Customer Content” is Content that you or your Authorized Users provide to us, or upload to our Self-Serve Services.
“Mentions” are the Content that a third party (in other words, someone other than you, your Authorized Users or “MXA”, “MXA URL Shortener,” “Spark Disk,”) creates and that we obtain on your behalf and at your instruction from Social Networks or other Third-Party Services that you connect to our Self-Serve Services. For example, posts created by your followers that appear on your Facebook page would be considered Mentions.
“Self-Serve Services” means our websites, such as MXA.us or Sparkdisk.com (and all its current and future subdomains), and mobile applications, and any services that you access or purchase through our websites or mobile applications, but do not include Third-Party Services (see below for how we define those) that you access or use in connection with our services.
“Third-Party Services” are services that are not provided by “MXA”, “MXA URL Shortener,” “Spark Disk,” but that you may access or use in connection with our Self-Serve Services. They include the “Social Networks”, which are the social networking sites supported by our Self-Serve Services (such as Twitter, Facebook, LinkedIn and Instagram).
“you”, “your”, “Customer”, and similar terms mean the person or legal entity accessing or using the Self-Serve Services. For the avoidance of doubt, if you are accessing and using the Self-Serve Services on behalf of a company (such as your employer) or other legal entity, “you”, “your” or “Customer” means the company or other legal entity that you are using the Self-Serve Services on behalf of.
“MXA”, “MXA URL Shortener,” “Spark Disk,” Self-Serve Services
2. Subject to the rest of this Agreement, we will allow you and your Authorized Users to access and use our Self-Serve Services in the way set out in the plan you subscribed to. You may not use or access the Self-Serve Services in any other way, such as using robots, spiders, crawlers and scraping technologies.
3. Our Self-Serve Services evolve constantly. We may change our Self-Serve Services, such as by changing, adding, or removing features at any time, for any reason. We may or may not provide notice of those changes to you. We will not be liable to you or any third party for the modification, price change, suspension, or discontinuance of any of our Self-Serve Services.
4. Our Self-Serve Services interact with Social Networks and depend on the availability of those Social Networks and the features and functionality they make available to us, which we do not control and may change without notice. If at any time a Social Network stops making some or all of its features or functionality available to us, or available to us on reasonable terms as determined by “MXA”, “MXA URL Shortener,” “Spark Disk,” in its sole discretion (each an “API Change”), we may stop providing access to those features or functionality and we will not be liable to you or any third party for any such change.
Acceptable Use Rules
5. You and any Authorized Users using your account must comply with the following Acceptable Use Rules and all laws. If we reasonably believe that you have breached the Acceptable Use Rules or any applicable law, we may, at any time and without notice, remove any of your Content and suspend, restrict or terminate your account or your access to the Self-Serve Services.
GENERAL RULES
A. You must:
i. Use your best efforts to prevent unauthorized access to or use of the Services, including by maintaining a strong password;
ii. Keep your passwords and other login credentials for the Services confidential;
iii. Monitor and control all activity conducted through your “MXA”, “MXA URL Shortener,” “Spark Disk,” account;
iv. Notify us promptly if you become aware of or suspect any security breach regarding your account, including any loss, theft, or unauthorized disclosure or use of your (or any of your Authorized Users’) username, password, or account; and
v. Comply with the Social Networks’ applicable terms which you connect through the Services (the “Social Network TOS”). These include for example the Twitter Terms of Service published at www.twitter.com/tos; the Facebook Terms of Service published at www.facebook.com/legal/terms; the LinkedIn User Agreement published at www.linkedin.com/legal/user-agreement; and the YouTube Terms of Service published at www.youtube.com/t/terms(as applicable).
B. You must not:
i. Make the Services available to anyone other than your Authorized Users;
ii. Allow more than one individual Authorized User to use a single log-in to the Services, or use the Services in excess of the quantities or limits set out in your Services plan;
iii. Sell, trade, or otherwise transfer any Services to another party;
iv. Upload or share Customer Content that you do not own or otherwise have the right to share;
v. Use the Services to store or transmit any Content, including Customer Content, that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, or publicity rights, or other applicable laws, or any of the Social Network TOS;
vi. Use the Services to send spam or other unsolicited messages in violation of applicable laws;
vii. Upload to, or transmit from, the Services any Content that contains or redirects to a virus, Trojan horse, worm, or other harmful component;
viii. Attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Services or the Social Networks (including any mechanism used to restrict or control the functionality of the Services or the Social Networks) or any data from third parties (in other words, someone other than you, your Authorized Users or “MXA”, “MXA URL Shortener,” “Spark Disk,”) contained in the Social Networks (except to the extent such restrictions are prohibited by applicable laws);
ix Attempt to gain unauthorized access to the Services, the Social Networks, or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Services or the Social Networks;
x. Access the Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Services or the Social Networks;
xi. Engage in any abusive practices that degrade the performance of the Services (or any part of the Services) for you or any of our other customers (for example, by tracking singular high-frequency terms such as “love”, “yes”, or “the” or other similar activities);
xii. Use the Services for redistribution, syndication, or fraudulent activities; or
xiii. Allow or encourage any third party to do any of the above.
ADDITIONAL RULES IMPOSED BY SOCIAL NETWORKS
C. If you are a public-sector entity, you must not use the Services to access or use content from Twitter for surveillance purposes.
D. If you are a public-sector entity whose primary function includes conducting surveillance/gathering intelligence, you must not use the Services to access or use content from Twitter.
E. You must not use the Services to access or use content from Twitter for any unlawful, discriminatory purposes or profiling based on sensitive categories of information prohibited by applicable laws (see Section VII.A. User Protection of the Twitter Developer Agreement published at https://developer.twitter.com/en/developer-terms/agreement).
ADDITIONAL RULES APPLICABLE IF YOU USE THE SERVICES FOR CONTESTS OR OTHERWISE ASK INDIVIDUALS TO SUBMIT CONTENT THROUGH THE SERVICES (“Submitted Content”)
F. You must not:
i. Request that any participant submit personal medical information, social security information, payment card details, financial or other sensitive information;
ii. Request Submitted Content that would violate any applicable laws, rules, or regulations; or
iii. Refer to “MXA”, “MXA URL Shortener,” “Spark Disk,” or use our name, trademarks, or trade names in connection with your request for Submitted Content.
CONFLICT
G. In the event of any conflict between these Acceptable Use Rules and the Terms, the Terms will govern.
Customer Content
6. You are solely responsible for Customer Content. We may, but do not have to, review, filter, block or remove Content, including Customer Content.
Submitted Content
7. If you use the Self-Serve Services for contests or otherwise ask people to submit Content through the Self-Serve Services (“Submitted Content”), you acknowledge and agree that:
(A) the Self-Serve Services do not help you comply with any laws, rules, or regulations that may apply to your collection or use of Submitted Content, which is solely your responsibility; and
(B) we will not be liable to you or any third party for the Submitted Content, and we make no warranty that any Submitted Content obtained or displayed through the Self-Serve Services is accurate or complete.
Account Information
8. You are responsible for the completeness, security, confidentiality, and accuracy of the account information you provide to us. You will promptly notify us of any unauthorized access to or use of your log-in credentials or account.
Content and Third-Party Services
9. We are not responsible for Content provided by others, including Mentions and Content from Third-Party Services (such as Content from Social Networks). You and anyone else who accesses our Self-Serve Services may access Content that might be unlawful, offensive, harmful, inaccurate, or otherwise inappropriate. We will not be liable to you or any third party for Content provided by others.
10. If you access or purchase a Third-Party Service through our Self-Serve Services, you do so at your own risk. Your relationship with the Third-Party Service provider is an agreement between you and them. You specifically understand that we are not responsible for Third-Party Services and will not be liable to you or any third party for any losses or damages resulting from your use of Third-Party Services.
11. If you access or enable a Third-Party Service, you grant them permission to access or otherwise process your data as required for the operation of the Third-Party Service. We are not responsible for disclosure, use, change to or deletion of your data and will not be liable to you or any third party for access to your data by a Third-Party Service.
12. We may, but do not have to, preview, verify, flag, modify, filter, block or remove Third-Party Services. You must comply with all agreements and other legal requirements that apply to Third-Party Services.
Data Protection & the GDPR
13. Please review our Privacy Policy (published at www.MXA.us or www.sparkdisk.com) for more information on how we collect and use data relating to the use and performance of our Self-Serve Services.
Confidentiality
14. If we share non-public information about “MXA”, “MXA URL Shortener,” “Spark Disk,” or our Self-Serve Services with you, you must keep it confidential and use reasonable security measures to prevent unauthorized disclosure of or access to that information.
Intellectual Property
15. Customer Content. You retain your rights to any Customer Content you submit, post, or display on or through the Self-Serve Services. You grant us a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to use, host, run, copy, reproduce, process, adapt, translate, modify, publish, transmit, display and distribute Customer Content for the purposes of providing, supporting, enhancing, and developing our products and services.
16. Feedback. We welcome your suggestions, comments, bug reports, feature requests or other feedback (“Feedback”). We do not have to keep Feedback confidential, even if you tell us it is confidential. If you provide Feedback, you grant “MXA”, “MXA URL Shortener,” “Spark Disk,” a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use the Feedback for any purpose.
17. Self-Serve Services. We keep all rights and interests in our Self-Serve Services. The Self-Serve Services contain Content owned or licensed by “MXA”, “MXA URL Shortener,” “Spark Disk,” (““MXA”, “MXA URL Shortener,” “Spark Disk,” Content”). “MXA”, “MXA URL Shortener,” “Spark Disk,” Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and “MXA”, “MXA URL Shortener,” “Spark Disk,”, we own and retain all rights in the Self-Serve Services and in any “MXA”, “MXA URL Shortener,” “Spark Disk,” Content.
Payment Terms, Trials and Renewal
18. Fees and Trials. You must pay all fees for the Self-Serve Services you purchase, except for Self-Serve Services that we expressly offer free of charge. If you sign up for a free trial of a paid Self-Serve Service, we may require you to provide a valid credit card or other payment method. We will charge you automatically on the first day after the free trial is over, unless you cancel or downgrade to a charge-free service and uninstall any paid apps before the end of the free-trial period.
19. Paid Services. For paid Self-Serve Services, you must provide us with a valid credit card or other form of electronic payment (such as Stripe). We will automatically charge you based on your chosen plan (such as monthly or yearly). We will share your account information with financial institutions and payment processing companies, including your submitted payment information, to process your purchase. Subscription to our plans are for fixed terms, and the associated fees payable are non-refundable. Prices for paid Self-Serve Services are subject to change on 30 days’ notice, provided that no price change will apply during your then-current subscription term. Depending on where you live, foreign exchange fees or differences in prices may apply, including because of exchange rates. We do not support all payment methods, currencies, or locations for payment. If the payment method you use is no longer valid (such as a credit card that has expired) and you do not edit your payment information or cancel or downgrade your account to a plan that is free of charge, you authorize us to keep billing you for our Self-Serve Services and you remain responsible for uncollected amounts. If you owe us any unpaid fees, we may suspend your access to our Self-Serve Services without prior notice until you pay us in full. Your obligation to pay fees continues through to the end of the period in which you cancel or downgrade your plan.
20. Auto-Renewal of Self-Serve Services. Self-Serve Services plans will renew automatically at the end of the term (which may be monthly or annually, depending on the plan you chose when you purchased our Self-Serve Services), and we will automatically bill you on renewal unless you cancel or downgrade our Self-Serve Services under Section 23 below.
21. Taxes. You are responsible for paying all taxes on all fees that you pay to us. Local taxes may differ based on your payment method.
Cancellation and Termination of Self-Serve Services
22. You may cancel or downgrade your Self-Serve Services plan at any time by contacting contact@sparkdisk.com.
23. We may refuse to provide service (including the Self-Serve Services) to anyone for any reason at any time. We may also immediately suspend or terminate your access to our Self-Serve Services for any reason, at any time, without notifying you in advance. If we terminate this Agreement because you violated the Acceptable Use Rules or any other part of this Agreement, you will not receive a refund. If we terminate your access to the Self-Serve Services under this section for no reason, we will refund you for the Self-Serve Services you have not yet received.
Disclaimer of Warranties and Limitation of Liability
24. We offer our Self-Serve Services “as is” and are not making any warranties, conditions, representations or guarantees of any kind, whether express, implied, statutory or otherwise, including all express or implied warranties of design, merchantability, fitness for a particular purpose, title, quality and non-infringement, that our Self-Serve Services will meet your requirements or that our Self-Serve Services will always be available, accessible, uninterrupted, timely, secure, accurate, complete or error-free. Use our Self-Serve Services at your own risk. You hereby release us and our affiliates and the directors, officers, employees, agents, licensors and service providers of “MXA”, “MXA URL Shortener,” “Spark Disk,” and our affiliates (the ““MXA”, “MXA URL Shortener,” “Spark Disk,” Parties”) from any claims, known or unknown, you have against them.
25. We will not be liable for indirect, punitive, incidental, special, consequential or exemplary damages, or for loss of profits, goodwill or data or other intangible losses, that result from the use of, or inability to use, our Self-Serve Services or any other aspect of this Agreement. Under no circumstances will we be liable for any Third-Party Services, Social Networks or activities of third parties, any connection to or transmission from the Internet, or for any damage, loss or injury resulting from hacking, tampering, theft or other unauthorized access to or use of our Self-Serve Services or your account or the information contained in your account, including Customer Content.
26. Our aggregate liability to you for all losses or damages arising out of this Agreement or your use of our Self-Serve Services, even if we have been advised of the possibility of such losses, will not exceed the greater of the fees we received from you for our Self-Serve Services that are subject to the claim during the three-month period immediately preceding the date on which the damages arose and $100. The limitations of liability in this section also apply to the “MXA”, “MXA URL Shortener,” “Spark Disk,” Parties and to claims brought based on any cause of action, including breach of contract, tort (including negligence), statute or other legal or equitable theory. If there is a law that limits how the limitation of liability in this section applies to you, our liability will be limited to the fullest extent permitted by law.
27. No advice or information, whether oral or written, obtained from us or elsewhere will create any warranty or condition not expressly stated in this Agreement.
28. Our prices are set based on limitations of liability and the disclaimers of warranties in this section. You acknowledge that they will survive and apply even if found to have failed their essential purpose.
29. If you are dissatisfied with our Self-Serve Services or believe that you’ve been harmed by your use of our Self-Serve Services or this Agreement, you may terminate your use of our Self-Serve Services (as set out above). That termination is your sole and exclusive remedy (and our sole and exclusive liability) under this Agreement.
Claims and Disputes
30. The laws of the United States will govern any dispute, cause of action or claim arising out of this Agreement or your use of our Self-Serve Services, including against any “MXA”, “MXA URL Shortener,” “Spark Disk,” Party (“Dispute”), without giving effect to conflict-of-law principles.
31. You will indemnify and hold harmless the “MXA”, “MXA URL Shortener,” “Spark Disk,” Parties from and against all losses, damages, penalties, liability and costs, including reasonable legal fees, of any kind or nature related to any claim against a “MXA”, “MXA URL Shortener,” “Spark Disk,” Party related to: (a) Customer Content or Submitted Content; (b) your breach of this Agreement or any laws; or (c) your use of our Self-Serve Services or any Third-Party Services (including your breach of terms for any Third-Party Services).
32. If you breach this Agreement or violate our rights or another person’s rights, we may ask a court to stop you; if we bring a claim against you, you will reimburse us for our reasonable legal fees for that claim.
33. Any Dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. “MXA”, “MXA URL Shortener,” “Spark Disk,” and you each waive any right to a trial by jury.
Miscellaneous
34. Export Compliance. You will not use or access our Self-Serve Services if you are located in any jurisdiction in which the provision of our Self-Serve Services is prohibited under United States or other laws (a “Prohibited Jurisdiction”) and you will not provide access to our Self-Serve Services to any government, entity or individual located in any Prohibited Jurisdiction. You confirm that you are not named on any United States list of persons or entities prohibited from transaction with any United States person; (b) you are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) you will not allow Authorized Users to access or use our Self-Serve Services in violation of any United States or other export embargoes, prohibitions or restrictions; and (d) you will comply with all laws regarding the transmission of data exported from the country in which you (or your Authorized Users) are located to the United States.
35. Amendment. We may change any part of this Agreement (including any terms or documents incorporated by reference in this Agreement) at any time by posting the revised terms on the “MXA”, “MXA URL Shortener,” “Spark Disk,” website, and your use of the Self-Serve Services after the effective date of the updated Agreement or other terms constitutes your agreement to the updated Agreement or other terms, as applicable. It is important for you to review this Agreement before using our Self-Serve Services and from time to time. The updated Agreement will be effective as of the time of posting, or on such later date as may be specified in the updated Agreement and will apply to your use of the Self-Serve Services from that point forward.
36. Assignment. You may not assign your rights under this Agreement to anyone else. We may assign our rights to any other individual or entity.
37. Severability. If a court finds part of this Agreement to be invalid, the rest will continue to apply with the minimum changes required to remove the invalid part.
38. Force Majeure. We will not be liable to you or any third party for any failure to perform our obligations under this Agreement if that failure results from any cause beyond our control, such as the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks or other acts of hackers; Internet or network failures or interruptions; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lockouts or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts; or if another person (including a Social Network) changes their services or terms or no longer offers their services to you or “MXA”, “MXA URL Shortener,” “Spark Disk,” on terms we believe are reasonable.
39. Remedies. If we fail to enforce this Agreement, we are not waiving our right to do so. Any remedies we have under this Agreement are not exclusive of any other remedies we may have under this Agreement, at law or otherwise.
40. Notices to You. “MXA”, “MXA URL Shortener,” “Spark Disk,” may give notice to you by placing a banner notice on the “MXA”, “MXA URL Shortener,” “Spark Disk,” platform or “MXA”, “MXA URL Shortener,” “Spark Disk,” website. We may also contact you or your Authorized Users through your “MXA”, “MXA URL Shortener,” “Spark Disk,” account or contact information you provide, such as email or telephone or through your account on one or more Social Networks. If you fail to maintain accurate account information, such as contact information, you may not receive critical information about our Self-Serve Services or this Agreement.
41. Notices to “MXA”, “MXA URL Shortener,” “Spark Disk,”. For any notice to “MXA”, “MXA URL Shortener,” “Spark Disk,” that you give under or regarding this Agreement, you must notify “MXA”, “MXA URL Shortener,” “Spark Disk,” by email to contact@sparkdisk.com with a duplicate copy sent via registered mail to the following address: MXA URL Shortener (C/O – Spark Disk) P.O. Box 335, Bruce, WI 54819
42. Entire Agreement. This Agreement, including the other documents referred to as applicable to the Self-Serve Services in this Agreement, is the entire agreement between you and “MXA”, “MXA URL Shortener,” “Spark Disk,” for your use of our Self-Serve Services. Any prior understandings, statements or and agreements (oral or written) do not apply, including additional terms that you may present (such as terms in a unilateral notice from you to us or printed on a purchase order or any other document generated by you). This Agreement is binding on the parties and their permitted successors and assigns.