The following terms govern your use of the software development kits, developer services and applications on our Web site, SparkPad.com (collectively, the “Services”).
BY USING OUR SERVICES, YOU SIGNIFY THAT YOU AGREE TO ABIDE BY THESE TERMS OF SERVICE (the “TOS”). You also agree this TOS has the same effect an agreement in writing.
In addition, You agree any legal action over the Services or this TOS must be resolved in a state or federal court in Loudoun County, Virginia.
You may only use the Services on the condition that you abide by this TOS; if You do not agree, do not use the Services.
1. ABOUT THESE TERMS OF SERVICE
1.2 Purchase Order: We offer our customers the ability to develop customized applications to run on Sparkpad Devices, which means any hardware computing platform offered on Sparkpad.com, including embedded system touch-screen displays. This TOS only applies to Your use of the Services; Your purchase of any Sparkpad Devices will be governed by a separate purchase order, purchase order terms and conditions and return policy when you acquire Sparkpad Devices from Us. You will have an opportunity to review these purchase terms if You elect to submit an order for Sparkpad Devices.
1.3 Modifications of the TOS: We may modify this TOS at any time. Any changes to the TOS take effect after we post or otherwise provide notice of the changes. You agree to review these terms periodically for changes. Your continued use of the Services after the effective date of the changes signifies your agreement to the changes. If you do not agree to the new terms, stop using the Services.
2. QUALIFICATION TO USE AND LOCATION OF OUR SERVICES
2.1 You: You must be a legal resident and have legal capacity to enter into contracts within the jurisdiction in which you reside. You agree that this TOS sets forth the terms in which You can you can use the Services and we may enforce this TOS against you if you accept the benefits of the Services.
2.2 Location of the Services: The Services are controlled and operated within the United States. We have not designed or customized the Services for distribution for any specific country or jurisdiction outside the United States (“Territory”). We have no obligation to assure that the Services comply with the applicable laws and regulations within the Territories in which you elect to use the Services. You are solely responsible to comply with any local laws when you use the Services.
3. REGISTRATION, USER NAME AND ACCOUNTS
3.1 Registration: Some features on our Services, such as, obtaining access to our software development kits (“SDKs”), being able to post comments on the Services, send inquiries about our products or place orders, may require that you register with us. If you elect to register with us, You must register in your own name, provide true and correct information to us and keep this information up to date. When you register with us, you will need a user name identification to access your account on the Services (“User Name”). You may not share, loan, provide, transfer or sublicense Your User Name to any other person or party. You may not obtain a User Name under false pretenses, including without limitation, “spoofing” an IP address or misrepresenting any URLs. We may determine the number of User Names that you may have. We have the right at all times to block attempts to access our networks with an invalid or revoked User Name.
3.2 Inappropriate User Name: A User Name may not be vulgar, used by someone else, impersonate someone else, or violate the rights of others, such as someone’s trademark. You may not create Accounts for “name squatting.”
4. YOUR RESPONSIBILITIES WHEN USING OUR SERVICES
4.1 Responsibility for Activity on Your Account: You are responsible for all activity under Your User Name account. You must:
a. Follow all applicable laws and regulations;
b. Follow this TOS, including any other guidelines that may apply to specific Services;
c. Keep your User Name and password confidential;
d. Not let anyone use Your User Name for any purpose; and
e. Immediately notify us if You learn of a security breach on the Services.
4.3 Prohibited Activities: When you use any of our Services, you will not:
a. Participate in, facilitate or further illegal activities;
b. Use our Service in a way that harms us or our customers, advertisers, affiliates, vendors, or anyone else;
c. Send any electronic communications such as e-mail to send any unsolicited bulk communication;
d. Use any automated process to access or use the Services, including but not limited to scripts, spiders, or BOTs;
e. Use any process, whether automated or manual, to capture data or content from any Service, including but not limited to screen-scraping;
f. Use any Service or any process to damage, disable, impair, or otherwise attack our Services or the networks connected to the Services;
g. Interfere with anyone's use and enjoyment of the Services; or
h. Resell or redistribute any Services or any part of the Services.
4.4 Termination of Your Account: We have the right to enforce this TOS and take whatever action against You and Your User Name account as we deem appropriate and as we determine in our sole discretion. We are not required to provide notice prior to terminating or taking any other action against You and Your account.
4.5 Posting Contact and Other Personal Information: You are solely responsible for the content You post or otherwise provide on the Service, such as, when you post comments on any message boards in our forums. You take full responsibility if you disclose any personal information You choose to submit or share using any public area of the Services, such as disclosing Your location or residence and the consequences of sharing or publishing such content with others or the general public. YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY CONTACT, INTERACTION, LOSS OF PRIVACY, AND ANY OTHER CONSEQUENCES THAT OCCUR BETWEEN YOU AND ANY OTHER USER OF OUR SERVICES OR THE PUBLIC AND THAT THE ENTIRE RISK FALLS ON YOU.
5. CONTENT YOU POST ON OUR SERVICES
5.1 Posting Content: You may only post content on the Services, such as comments, forum postings, etc., that is Your original work (in other words, works that you own) or in such content in which the owner of the content gave you the express, written authorization to use and post on the Services
5.2 Appropriate Content: You may not post or distribute content on the Services that is illegal, that violates this TOS and our posted policies, or that violates the rights of others, including their copyright and trademarks. We reserve the right to remove content for any reason in our sole judgment and discretion, including without limitation, that such content violates the TOS or our policies. We are not responsible for any failure or delay in removing such material.
5.3 Rights to Posted Content: You represent and warrant to us that when you post or submit content on the Services (i) You own the content or have the express, written authorization to post such content; (ii) the content that you post does not infringe any the rights of any third party; and (iii) the content will not violate applicable laws.
5.4 License to Use Posted Content: You or the owner of the content that authorized you to post content on the Services will retain ownership in such content. We do not claim ownership in Your specific work. However, by posting content on a Service, You grant us and any parent, affiliates, subsidiaries, assigns, agents and licensees the irrevocable, royalty free, perpetual, worldwide right and license to use, reproduce, modify, display, perform, distribute, adapt, promote, create derivative works, complicate, make collective works and syndicate this content in any medium and through any form or technology of distribution. In addition, if you participate in any feature on the Services that allows users to share, modify, or combine user content with other content, you grant us and our users an irrevocable, royalty free, perpetual, worldwide right and license to use, share, reproduce, modify, create derivative works, display, distribute and perform your content on the Service.
5.5 Ownership In Compilations and Other Works. We own all right, title, and interest in any compilation, collective work or other derivative work created by us using or incorporating this content. This means that if Your content appears in combination with other works, e.g., your posted content is part of a thread on a message board, we shall have ownership rights in the entire thread, although you will retain ownership in your individual postings subject to your license to us. We do not grant you rights to any compilation or collective work on the Services.
5.6 No Professional Advice. You may post content for discussion and general informational purposes only. You may not post content intended to provide professional advice directed to any users that are licensed or regulated by law, including without limitation, providing medical treatment, legal advice or investment advice on the Service. You may not post content to solicit, recommend, endorse, or offer to buy or sell any securities or other financial instruments or recommend that any particular security, portfolio of securities, transaction or investment strategy.
6. OWNERSHIP; LICENSES.
6.1 Ownership of Content: We and our vendors, licensors and users who provide the Services and all content on the Services own the property rights to such materials.
6.2 Intellectual Property Rights: The Services are protected by copyright, trademark, patent, trade secret, international treaties, laws, and other proprietary rights, and also may have security components that protect digital information. You agree that You will not take any action to interfere with the owner’s right in content and You will not attempt to circumvent any mechanisms for preventing the unauthorized reproduction or distribution of the Services.
6.3 Use of Services: We give you a limited, revocable, non-transferable right to access and use the Services, including without limitation, any software development kits (“SDKs”) that we make available so that you may build your own applications for Sparkpad Devices. You may not use the Services in a manner that exceeds the rights granted for Your use of the Services, which includes unauthorized copying or distribution of the content on our Services (e.g., our SDKs) or creating an unauthorized derivative work. Use, reproduction and distribution of components of the SDKs licensed under an open source software license are governed solely by the terms of that open source software license and not this Agreement.
You may not modify, publish, network, rent, lease, loan, transmit, sell, participate in the transfer or sale of, reproduce, create derivative works based on, redistribute, perform, display, or in any way exploit any of the Services. You may not decompile, reverse engineer, disassemble, attempt to derive the source code of the Services (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by any licensing terms accompanying the foregoing). We may use any technical or legal remedy as we deem appropriate to prevent the violation or tampering with the security of our Services. You understand and agree that your purchase and use of any Sparkpad Devices are subject to separate licensing terms, which you will have the opportunity to review when you place a purchase.
6.4 Availability of Products and Services. The display of Sparkpad Devices, products and services on the Services may not be available for purchase in your particular country or locality. Pricing and product descriptions may not always be up to date on the Services and are subject to change without notice. The reference to such products and services on the Services does not imply or warrant that these products or services will be available at any time in your particular location. You should check with our sales department [link] for the availability of specific products and services in your area. Product and support prices will be specified when we receive your order for our products. Prices are subject to change at any time prior to our acceptance of your order, unless stated otherwise in a purchase order.
6.4 Disclaimer: THE INFORMATION PROVIDED ON THE SERVICES ARE OFFERED "AS IS" AND YOU ANY RELIANCE YOU PUT ON SUCH MATERIALS SOLELY AT YOUR OWN RISK. We do not endorse any opinions expressed by any users.
6.5 Reporting Violations of the Copyright and Trademark Policy: All violations of the Copyright and Trademark Policy should be reported in the manner and to the person specified in the in the instructions provided at Reporting Copyright Violation.
7. OUR SERVICES
7.1 Changes to or Discontinuation of Services: As we determine in our sole discretion, we may change or discontinue any or all aspects of the Services or its features without notice. We may change our SDKs and any software on our Sparkpad Devices at any time. You agree that you are solely responsible for using the latest SDK we offer for any application that you desire to build for the Sparkpad Devices.
7.2 No Prescreening of Content/No Endorsement: We have no obligation to pre-screen content (e.g. forum posts), although we may do so in our sole discretion. The inclusion of directories, search results, links, and other content in our Services does not mean that we endorse any content, individual, company, product, or other thing or entity in those Services.
7.3 Liability for Content of Others: We are not liable for content provided by others. We make no representations or guarantees that all content on the Services is suitable for all users of all ages.
7.4 Content on the Internet: You acknowledge that we have no control or responsibility for content available on the Internet, although we reserve the right to block access to any Internet area containing illegal or other harmful content that we believe are unlawful or injurious to our users or us. You acknowledge that third-party sites on the Internet may have their own terms and conditions that govern Your use of those sites.
7.5 Advertising. In consideration of us giving you the opportunity to use the Services, You agree that we may offer advertising on our Services (e.g., on our Web Site), including any Services we offer through mobile or wireless devices.
8. MOBILE SERVICES
8.1 About Mobile Services: Some of our Services may be available on mobile or wireless devices (“Mobile Services”). You will need to register for any text messaging features we offer for a Service. You can discontinue such text messaging services at any time. In the event You subscribe to any text messaging services from us, we will provide You with instructions on how You can opt out of receiving such text messages from us.
8.2 Access: You must provide at Your own expense the equipment and wireless connections that You will need to use any Mobile Services. We do not guarantee that You can access our Mobile Services through all wireless devices or wireless service plans. We do not guarantee that our Mobile Services are available in all geographic locations.
8.3 Costs of Mobile Access: Your wireless carrier may charge You standard fees for data, messaging and other wireless access. Check with Your carrier to verify whether there are any such fees that may apply to You. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS OUR MOBILE SERVICES THROUGH YOUR MOBILE DEVICE.
9. TERMINATION AND CANCELLATION OF A SUBSCRIPTION OR SERVICE
9.1 Cancelling a Subscription: We or You may cancel your access and use of the Services at any time for any reason; provided however, that any right of cancellation shall not apply to a pending purchase order for a Sparkpad Device. Any order or purchase for a Sparkpad Device will be governed by Our Purchase Order Terms and Conditions that will accompany any purchase order.
9.2 Disputes: You agree that discontinuing Your use of the Services is Your sole right and remedy with respect to any dispute you may have with us or the Services; provided however, that any order or purchase for a Sparkpad Device will be governed by Our Purchase Order Terms and Conditions that will accompany any purchase order
9.3 No Access After Cancellation or Termination: You understand and agree that You no longer will have access to any of the Services, or access to any content you may have stored on the Services, after Your account is terminated or canceled.
10. DISCLAIMER OF WARRANTIES: YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE," WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. SPECIFICALLY, WE DISCLAIM IMPLIED WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. PLEASE NOTE: YOUR PURCHASE AND USE OF ANY SPARKPAD DEVICE, INCLUDING OUR WARRANTY ON OUR DEVICES, WILL BE GOVERNED BY OUR PURCHASE ORDER TERMS AND CONDITIONS THAT WILL ACCOMPANY ANY PURCHASE ORDER.
11. LIMITATION OF LIABILITY: WE, OUR SUPPLIERS AND DISTRIBUTORS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGE ARISING FROM YOUR USE OF THE SERVICES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICES. THESE EXCLUSIONS FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY IN SUCH STATE OR JURISDICTION SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT FOR OFFERS EXPRESSLY MADE OR GUARANTEED BY US, WE AND OUR SUPPLIERS DO NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED THROUGH US AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
12.1 Indemnification: Upon a request by us, You agree to defend, indemnify and hold harmless us and our suppliers from all liabilities, claims and expenses, including attorneys' fees, that arise from a breach of this TOS for which You are responsible or from the use of the Services or Internet, or in connection with Your transmission of any content on the Services.
12.2 Defense and Control of Claims: We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You. In that event, You shall have no further obligation to provide indemnification for us in that matter.
13. GENERAL LEGAL TERMS
13.1 Terms: This TOS, as published on the Services, the terms of any subscription plan provided at registration and any supplemental terms for specific Services, constitute the entire and only agreement regarding Your use of the Services. This TOS supersedes all representations, agreements and other communications regarding Your use of the Services. Only we can amend this TOS by posting the changes on the Services.
13.2 Severability: If a court of law finds that any term of this TOS is unenforceable, the term shall be deemed stricken from this TOS as if it had not been included from the beginning and the remainder of this TOS enforced according to its terms.
13.3 No Rights Conferred on Third-Parties: This TOS does not confer any rights or remedies from us upon any third party, that is, any person or entity other than You.
13.4 Assignment: We may assign this contract at any time without notice to You. You may not assign this contact to any one else.
13.5 Choice of Law and Location for Resolving Disputes: You agree that the laws of the Commonwealth of Virginia govern this contract and any claim or dispute that you may have against us, without regard to Virginia’s conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims that you may have against us resides in and will be resolved by a state or Federal court located in Loudoun County, Virginia, and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.
13.6 Electronic Delivery Policy and Your Consent: By registering for a Service, You consent to receive all communications, including notices, agreements, legally required disclosures or other information in connection with any Service electronically from us (collectively, "Notices"). You agree that we may send You Notices by (i) e-mail to Your e-mail address provided by You at registration, and/or (ii) by "pop up notice" on a Service and/or by (iii) posting the Notices on a main page or channel page of the relevant Service. You must check Your e-mail and our Web sites regularly for Notices from us.
You will need a printer attached to Your personal computer to print any Notices. Our TOS is available for printing.
The delivery of any Notice from us is effective when sent by us, regardless of whether You read the communication or when You receive it.
If you want to withdraw Your consent to receive notices, You may send an e-mail to us at firstname.lastname@example.org. Your withdrawal of any consent to receive notices electronically shall apply effective on the date that we receive notice of your election, and will not apply retroactively. However, if You choose to withdraw consent, we may terminate Your access to the Services.
13.7 Effect of Electronic Registration: All registrations, agreements, and terms will be completed electronically and will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing.
Last Updated: June 15 2010/