Terms and Services
End-User License Agreement
End-User License Agreement (“Agreement”)
Last updated: September 18, 2024
IMPORTANT: READ THIS BEFORE LOGGING IN TO OR USING THE REMOTESPARK APPLICATION (the “Application”)
This End User Licence Agreement (the “EULA”), made and entered into as of the time and date you log in to or use the Application (the “Effective Date”), is a legal agreement between you and Kognitiv Spark Inc. (“Kognitiv Spark”) and governs the use of the Application. By logging in to or otherwise using the Application, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not log in to or use the Application. IF YOU ARE ENTERING INTO THIS EULA ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, “YOU” AS USED HEREIN WILL INCLUDE THE COMPANY OR ENTITY YOU REPRESENT. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS EULA, THEN KOGNITIV SPARK DOES NOT AGREE TO LICENCE THE APPLICATION TO YOU AND YOU MAY NOT USE THE APPLICATION.
1. LICENCE.
1.1. Licence Grant. Subject to the terms of this EULA, Kognitiv Spark hereby grants you a non-exclusive, non-transferable licence, without the right to sub-licence, during the term of this EULA to access and use the Application.
1.2. Limited Rights. Your rights in the Application are limited to those expressly granted in Section 1.1 of this EULA, and no other licences are granted whether by implication, estoppel or otherwise. Kognitiv Spark reserves all other rights, title and interest in and to the Application not expressly granted under this EULA.
1.3. Third Party Licence Obligations. You acknowledge and agree that the Application may include or incorporate third-party technology (collectively, the “Third-Party Components”), which is provided for use in or with the Application and not otherwise used separately. If the Application includes or incorporates Third-Party Components, then the third-party pass-through terms and conditions (the “Third-Party Terms”) for the particular Third-Party Component will be bundled with the Application or otherwise made available online as indicated by Kognitiv Spark and will be incorporated by reference into this EULA. In the event of any conflict between the terms of this EULA and the Third-Party Terms, the Third-Party Terms shall govern. Copyright to Third-Party Components are held by the copyright holders indicated in the copyright notices indicated in the Third-Party Terms.
2. USE OF APPLICATION. Licence Restrictions. Except as expressly authorized under this EULA, you agree that you will not (nor allow third parties to):
i. copy and use the Application outside of the authorized Application as a service solution;
ii. reverse engineer, decompile, disassemble (except to the extent applicable laws specifically require that such activities be permitted) or attempt to derive the source code, underlying ideas, algorithm or structure of the Application provided to you in object code form, as applicable;
iii. sell, transfer, assign, distribute, rent, loan, lease, sub-licence or otherwise make available the Application or its functionality to third parties in any way;
iv. modify, translate or otherwise create any derivative works of the Application; v. use the Application, or allow its use, transfer, transmission or export, in violation of any applicable control laws, rules or regulations;
vi. distribute, permit access to, or sub-licence the Application as a standalone product;
vii. bypass, disable, circumvent or remove any form of copy protection, encryption, security or digital rights management, authentication mechanism, or account registration system used by Kognitiv Spark in connection with the Application;
viii. use the Application for the purpose of developing competing products and/or technologies or assisting a third party in such activities;
ix. use the Application with any system or application where the use or failure of such system or application can reasonably be expected to threaten or result in personal injury, death, or catastrophic loss;
x. distribute any modification or derivative work you make to the Application under or by reference to the same name used by Kognitiv Spark; or xi. use the Application, or cause the Application to be used, in any manner that would threaten the functionality and integrity of the Application.
3. REGISTRATION. In order to use the Application, you must complete the specified registration process by providing Kognitiv Spark with current, complete and accurate information, including a username, email address, and password. It is your responsibility to maintain the currency, completeness, and accuracy of the information you provide to Kognitiv Spark and any loss caused by your failure to do so is your responsibility. You must maintain and update any information you provide to us. You are responsible for any and all activities that occur under your account. You agree to notify Kognitiv Spark of any unauthorized use of your account. Kognitiv Spark is not liable for any loss that you may incur as a result of someone else using your account, either with or without your knowledge.
4. TERM & TERMINATION. This EULA and your licence rights hereunder shall become effective upon the Effective Date and shall remain in effect for the duration of your licence, unless earlier terminated as provided in this section. This EULA may be terminated upon written notice in the event of breach of any of the terms of this EULA and/or upon your failure to pay Kognitiv Spark for your continued use of the Application. Termination of this EULA shall not release the parties from any liability which, at the time of termination, has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is expressly stated in this EULA to survive termination. Notwithstanding the foregoing, the party terminating this EULA shall incur no additional liability merely by virtue of such termination. Termination of this EULA, regardless of cause or nature, shall be without prejudice to any other rights or remedies of the parties and shall be without liability for any loss or damage occasioned thereby. Upon any expiration or termination of this EULA, you must promptly discontinue use of the Application. Upon written request, you will certify in writing that you have complied with your obligations under this section.
5. APPLICATION UPDATES.
5.1. Updates. Kognitiv Spark may make available for download certain Application updates or upgrades to the Application to update, enhance or further develop the Application (the “Application Updates”). The license granted herein allows you to download and use the Application Updates to update the Application on any device that you own or control. This EULA does not allow you to update devices that you do not own or control.
5.2. Automatic Updates. Kognitiv Spark may, at its discretion, automatically download Application Updates to your device. You agree to accept these Application Updates. You must comply with all domestic and international export laws and regulations that apply to the Application and Application Updates. These laws include restrictions on destinations, end users and end use.
6. PRIVACY & CONSENT TO COLLECTION AND USE OF INFORMATION. You hereby agree and acknowledge that the Application may access and collect non-personally identifiable information about you and update or configure your device systems in order to i) properly optimize such systems for use with the Application; ii) deliver Application Updates and services, or content through the Application; iii) optimize, maintain, repair and/or administer Kognitiv Spark products and services; and/or iv) deliver Kognitiv Spark communications to you with respect to pertinent administrative matters relating to the Application (e.g. maintenance of the Application, Application downtime, health and operations of the Application, etc.). You also hereby agree and acknowledge that the Application may access and collect, on a non-personally identifiable and nonattributable basis, information and data relating to your substantive use of the Application for Kognitiv Spark’s own use in the research and development of Kognitiv Spark products and/or services. Information accessed and collected by the Application includes, but is not limited to, hardware configuration and ID, operating system, performance and usage metrics of the Application, raw data and/or sample data submitted through the use of the Application, and testing and/or data analysis results. To the extent that you use the Application, you hereby consent to all of the foregoing. Further, to the extent that you use the Application, you hereby consent to the terms and conditions of Kogntiv Spark’s privacy policy, which can be found here: http://kognitivspark.com/privacy/.
7. OWNERSHIP OF DATA. All your data and information submitted to or collected by Kognitiv Spark under this EULA (the “Collected Data”) is and shall remain your exclusive property and shall be considered your confidential information. Your Collected Data is available to you and you may manage the Collected Data as you see fit. The Collected Data (a) shall not be used by Kognitiv Spark other than pursuant to this EULA, and (b) shall not be disclosed, sold, assigned, leased, or otherwise provided to third parties by Kognitiv Spark except to Kognitiv Spark’s affiliates (as such term is defined from time in the New Brunswick Business Corporations Act) and/or subsidiaries as required to properly maintain and operate the Application.
8. INTELLECTUAL PROPERTY OWNERSHIP. The Application and all modifications (including modifications made in response to your suggestion and/or feedback), and all of the respective intellectual property rights therein, including but not limited to all patents, trademarks and copyrights, are and will remain the sole and exclusive property of Kognitiv Spark or its licensors, whether the Application is separate from or combined with any other products or materials. You shall not engage in any act or omission that would impair Kognitiv Spark’s and/or its licensors’ intellectual property rights in the Application or any other materials, information, processes or subject matter proprietary to Kognitiv Spark. Kognitiv Spark’s licensors are intended third-party beneficiaries with the right to enforce provisions of this EULA with respect to their confidential information and/or intellectual property rights.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, KOGNITIV SPARK OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL), OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE USE OR PERFORMANCE OF APPLICATION, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION AND WHETHER OR NOT KOGNITIV SPARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. NO WARRANTIES. THE APPLICATION IS PROVIDED BY KOGNITIV SPARK “AS IS” AND KOGNITIV SPARK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. KOGNITIV SPARK DOES NOT WARRANT THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE ININTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. YOU ACKNOWLEDGE THAT KOGNITIV SPARK’S OBLIGATIONS UNDER THIS EULA ARE FOR THE BENEFIT OF YOU ONLY. Nothing in this warranty section affects statutory rights of consumers or other recipients to the extent that they cannot be waived or limited by contract under applicable law.
11. MISCELLANEOUS.
11.1. Compliance with Terms. During the term of this EULA and for a period of 3 years thereafter, you will cooperate with Kognitiv Spark or its affiliates to verify your compliance with the terms of this EULA.
11.2. Entire Agreement. This EULA constitutes the entire agreement of the parties with respect to the use of the Application and supersedes all prior negotiations, conversations, or discussions between the parties relating to the subject matter hereto, oral or written, and all past dealings or industry practice.
11.3. Conflicting Terms. Any conflicting terms and conditions on purchase order(s), service agreements, product agreements, or any other documents issued are null, void, and invalid.
11.4. Assignment. This EULA and the rights and obligations hereunder may not be assigned by you, in whole or in part, including by merger, consolidation, dissolution, operation of law, or any other manner, without written consent from Kognitiv Spark, and any purported assignment in violation of this provision shall be void and of no effect. Kognitiv Spark may assign, delegate or transfer this EULA and its rights and obligations hereunder, and if such assignment, delegation or transfer is made to a non-affiliate, you will be notified.
11.5. Independent Contractor. Each party acknowledges and agrees that the other is an independent contractor in the performance of this EULA, and each party is solely responsible for all of its costs and expenses arising in connection therewith. The parties are not partners, joint ventures or otherwise affiliated, and neither party has any authority to make any statements, representations or commitments of any kind to bind the other party without prior written consent.
11.6. Governing Law and Forum. The parties agree that this EULA will be governed by and construed under the laws of the Province of New Brunswick and the federal laws of Canada applicable therein. The parties consent to the non-exclusive jurisdiction of the federal (Canadian) and provincial (New Brunswick) courts located in Fredericton, New Brunswick, Canada.
11.7. Severability. If any court of competent jurisdiction determines that any provision of this EULA is illegal, invalid, or unenforceable, the remaining provisions of this EULA remain in full force and effect.
11.8. Notice. Any notice delivered by Kognitiv Spark to you under this EULA will be delivered via mail, email or fax. Please direct your notices or other correspondence to: Kognitiv Spark Inc., 40 Crowther Lane, 2nd Floor, Fredericton, New Brunswick, Canada E3C 0J1 and/or eula@kognitivspark.com.
11.9. International Sale of Goods Act (New Brunswick). Pursuant to Section 6 of the International Sale of Goods Act, RSNB 2011 c177, the parties agree to expressly exclude the application of the United Nations Convention on Contract for the International Sale of Goods to this EULA.