Terms of Service

Effective starting: 5 December 2023

These Sparxbox Terms of Service ("Terms") describe your rights and responsibilities as a customer of our Products. These terms are between you and Sparxbox Pty Ltd (herein referred to as the "Sparxbox," "we," "us," or "our") as the owner and operator of the Products that you are using or accessing. "You" means the entity you represent in accepting these Terms or, if that does not apply, you individually. These Terms govern our Products, related Support, and Additional Services.

1. Acceptance of Terms

1.a. Accepting

By clicking "Subscribe" (or similar button or checkbox) at the time you register for a Product, create a Product account, or place an Order you acknowledge that you have read, understood, and agree to be legally bound by these Terms. If you do not accept these Terms, you shall not access, browse or use the Product.

1.b. Representation

If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don't have the legal authority to bind your employer or the applicable entity please do not click "Subscribe" (or similar button or checkbox) that is presented to you.

1.c. Effective Date

These Terms are effective as of the date you first click "Subscribe" (or similar button or checkbox) or use or access a Product, whichever is earlier (the "Effective Date").

1.d. Changes to these terms

You understand and agree that we may change these Terms at any time, with notice to you or by posting the modified Terms on our website. The revised terms and conditions will become effective at the time of posting. You can determine when these Terms were last revised by referring to the date at the top of these Terms. Any use of the Product after such date shall constitute your acceptance of such revised terms and conditions. If any change to these Terms is not acceptable to you, you shall cease accessing, browsing and otherwise using the Product. Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew the Subscription. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the affected Products for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.

1.e. Privacy Policy Acceptance

Your access to and use of the Product is also subject to our Privacy Policy, the terms and conditions of which are hereby incorporated herein by reference. We may modify the Privacy Policy to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Privacy Policy that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to the Privacy Policy will take effect automatically as of the effective date specified for the updated policies.

1.f. Age Requirement

The Products are not intended for, and should not be used by, anyone under the age of 18.

2. Use of the Product

2.a. Rights

Subject to these Terms and during the applicable the Subscription Term, you may access and use the Products for your own business purposes, as applicable, all in accordance with these Terms, the applicable Order and the Documentation. The rights granted to you in this section are non-exclusive, non-sublicensable, and non-transferable.

2.b. Restrictions

Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the Products; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Products to a third party; (c) use the Products for the benefit of any third party; (d) incorporate any Products into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the Products intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any Product; (h) use the Products for competitive analysis or to build competitive products; (i) harvest or collect personally identifiable information about other users; (j) interfere with or disrupt the operation or the servers or networks used to make the Products available; or violate any requirements, procedures, policies or regulations of such networks; (k) disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters your use of the Product; or (l) encourage or assist any third party to do any of the foregoing.

2.c. Support

During the Subscription Term, we will provide Support for the Products, and the applicable Order.

3. Security and data privacy policies

3.a. Credentials

You must keep your passwords for the Products strictly confidential and do not share such information with any unauthorized person. You agree to immediately notify us of any unauthorized use of which you become aware.

3.b. Security

We implement and maintain physical, technical and administrative security measures designed to protect Your Data from unauthorized access, destruction, use, modification, or disclosure.

3.c. Privacy

We collect certain data and information about you in connection with your use of the Products and otherwise in connection with these Terms. We collect and use all such data and information in accordance with our Privacy Policy, which you acknowledge.

3.d. Improving Products

We strive to improve the Products. In order to do so, we use analytics techniques to better understand how our Products are being used. For more information on these techniques and the type of data collected, please read our Privacy Policy.

3.e. Subpoenas

Nothing in these Terms prevents us from disclosing Your Data to the extent required by law, subpoenas or court orders, but we will use commercially reasonable efforts to notify you where permitted to do so.

4. Terms that apply to Your Data

4.a. Your Data Rights

You retain all right, title and interest in and to Your Data sent to the Products. Subject to these Terms, and solely to the extent necessary to provide the Products to you, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your Data for display in a Product constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may also access your accounts, and your Products in order to respond to your support requests.

4.b. Compliance

You and your use of Products must comply at all times with these Terms and all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Your Data to the Products and to grant the rights granted to us in these Terms and (ii) Your Data and its submission and use as you authorize in these Terms will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Your Data. Other than our express obligations under Section 3 (Security and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the Products.

5. Content

5.a. Ownership

All content included in or made available through the Products, such as text, graphics, logos, icons, images, sounds, music, digital downloads, data compilation, software, and documents is the exclusive property of Sparxbox or its content suppliers and is protected by the various applicable trade dress, copyright, trademark, patent, and other intellectual property and unfair competition laws internationally. All rights not expressly granted to you in this Terms are reserved and retained by Sparxbox or its licensors, suppliers, publishers, rightsholders, or other content providers.

6. Third-Party Sites

6.a. External Links

You may find links to other websites. Those links will let you leave the Sparxbox' websites. Sparxbox exercises no control whatsoever over such third-party websites and any contents or web-based resources found on those third-party sites and is not responsible or liable for the availability thereof or the content, advertising, products or other materials thereon or any updates or changes thereto. Sparxbox is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Sparxbox of any linked sites. Sparxbox shall not be responsible or liable, directly or indirectly, for any damage or loss incurred or suffered by any user in connection therewith. Your access and use of those websites, including your use of any content, information, data, advertising, products, or other materials on or available through such websites, is solely at your own risk is subject to the terms and conditions of use and privacy policy(ies) applicable to such sites and resources. The Sparxbox Privacy Policy is applicable only when you are on the Site. Once you choose to be directed to another website, you should read that website's privacy statement before disclosing any personal information.

7. Additional Services

7.a. Purchase of Additional Services

Subject to these Terms, you may purchase Additional Services that we will provide to you pursuant to the applicable Order. Additional Services may be subject to additional policies and terms as specified by us.

7.b. Our Deliverables

We will retain all right, title and interest in and to Our Deliverables. You may use any of Our Deliverables provided to you only in connection with the Products, subject to the same usage rights and restrictions as for the Products. For clarity, Our Deliverables are not considered Products, and any Products are not considered to be Our Deliverables.

7.c. Your Materials

You agree to provide us with reasonable access to Your Materials as reasonably necessary for our provision of Additional Services. If you do not provide us with timely access to Your Materials, our performance of Additional Services will be excused until you do so. You retain your rights in Your Materials, subject to our ownership of any Products, any of Our Deliverables or any of Our Technology underlying Your Materials. We will use Your Materials solely for purposes of performing the Additional Services. You represent and warrant that you have all necessary rights in Your Materials to provide them to us for such purposes.

8. Billing, renewals, and payments

8.a. Billing Basis

All Products are offered either on a monthly billing basis or an annual billing basis.

i. Monthly Billing: You pay based on actual aggregated spend on the Connected Cloud Services in the preceding month with no upfront commitment. Payment is on a periodic basis in arrears.

ii. Annual Billing: You commit in advance to pay for 12 months of subscription based on the actual aggregated spend on the Connected Cloud Services in the preceding month.

8.b. Ordering

i. By ordering or renewing a Subscription, you agree to the Order details for that Subscription. Unless otherwise specified in those Order details, Products are offered on an "as available" basis.

8.c. Pricing

i. For Monthly Billing, pricing is subject to change at any time upon notice.

ii. For Annual Billing, during the Subscription Term, prices for Product will not be increased, as to your Subscription, except where prices are identified as temporary in the Order details, or for previews of Products. All prices are subject to change at the beginning of any Subscription renewal.

8.d. Payment

i. You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. For Additional Services provided at any non-Sparxbox location, unless otherwise specified in your Order, you will reimburse us for our pre-approved travel, lodging and meal expenses, which we may charge as incurred. Other than as expressly set forth in these Terms in Section 9 (Our return policy), 17.c (Warranty Remedy), Section 21 (IP Indemnification) or Section 1.d (Changes to these Terms), all amounts are non-refundable, non-cancellable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, overages to set limits or scopes of use, expenses, and unpaid fees, as applicable.

8.e. Renewals

i. Except as otherwise specified in your Order, unless either party cancels your subscription prior to expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term.

ii. You will provide any notice of non-renewal through the means we designate, which may include account settings in the Products or contacting our support team.

iii. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Product continuing to be offered and will be charged at the then-current rates.

8.f. Delivery

i. We will deliver the login instructions for Products to your account or through other reasonable means no later than when we have received payment of the applicable fees.

ii. You are responsible for accessing your account to determine that we have received payment and that your Order has been processed. All deliveries under these Terms will be electronic.

9. Our return policy

9.a. Initial Order Termination

As part of our commitment to customer satisfaction, you may terminate your initial Order of a Product under these Terms, for no reason or any reason, by providing notice of termination to us no later than thirty (30) days after the Order date for such Product. In the event you terminate your initial Order under this section, at your request (which may be made through your account with us), we will refund you the amount paid under such Order. This termination and refund right applies only to your initial Order of the Product and only if you exercise your termination right within the period specified above, and does not apply to Additional Services. You understand that we may change this practice in the future.

10. Taxes not included

10.a. Tax Obligations

Your fees under these Terms exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under these Terms. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide us with such exemption information, and we will use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available.

10.b. Withholding Taxes

You will pay all fees net of any applicable withholding taxes. You and we will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If we qualify for a tax exemption, or a reduced treaty withholding rate, we will provide you with reasonable documentary proof. You will provide us reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.

11. No contingencies on other products of future functionality

11.a. Independent Purchases

You acknowledge that the Products and Additional Services referenced in an Order are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of Products and Additional Services are separate and not contingent on each other, even if listed on the same Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Products beyond the current Subscription Term), or dependent on any oral or written public comments we make regarding future functionality or features.

12. Evaluations, trials, and betas

12.a. No-Charge Products

We may offer certain Products to you at no charge, including free accounts, trial period and Beta Versions as defined below (collectively, "No-Charge Products"). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted during the Subscription Term we designate (or, if not designated, until terminated in accordance with these Terms). Except as otherwise set forth in this section, the terms and conditions of these Terms governing Products, fully apply to No-Charge Products. We may modify or terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta Products, and any pre-release and beta features within generally available Products, that we make available (collectively, "Beta Versions") are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this section. All information regarding the characteristics, features or performance of any No-Charge Products (including Beta Versions) constitutes our Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support, warranty and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, OUR MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS WILL BE US$100.

13. IP Rights in the Products and Feedback

13.a. Ownership and Feedback

Products are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as "purchase" or "sale". We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the Products). From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.

14. Confidentiality

14.a. Confidential Information

Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party ("Receiving Party") by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to the Products will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section and that the Receiving Party remains responsible for compliance by them with the terms of this Section. The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

15. Term and Termination

15.a. Term

These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Subscription Terms.

15.b. Termination for Cause

Either party may terminate these Terms (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

15.c. Termination for Convenience

You may choose to stop using the Products and terminate these Terms (including all Orders) at any time for any reason upon written notice to us, but, unless you are exercising your right to terminate early pursuant to Section 9 (Our return policy), upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.

15.d. Effects of Termination

Upon any expiration or termination of these Terms, you must cease using all Products and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable Subscription Term). If you terminate these Terms in accordance with Section 15.b, we will refund you any prepaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. If we terminate these Terms in accordance with Section 15.b, you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.

15.e. Survival

The following provisions will survive any termination or expiration of these Terms: Sections 2.b (Restrictions), 8.d (Payment), 10 (Taxes not included), 12 (Evaluations, trials, and betas), 13 (IP Rights in the Products and Feedback), 14 (Confidentiality), 15 (Term and Termination), 17.d (Warranty Disclaimer), 18 (Limitations of Liability), 20 (Your Indemnity), 21 (IP Indemnification) (but solely with respect to claims arising from your use of Products during the Subscription Term), 23 (Dispute Resolution) and 26 (General Provisions).

16. Removals and Suspensions

16.a. Content Monitoring

We have no obligation to monitor any content uploaded to the Products. Nonetheless, if we deem such action necessary based on your violation of these Terms, including Our Policies, or in response to takedown requests that we receive following our guidelines for Reporting Copyright and Trademark Violations, we may (1) remove Your Data from the Products or (2) suspend your access to the Products. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Product or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to any Products.

17. Warranties and Disclaimer

17.a. Mutual Warranties

Each party represents and warrants that it has the legal power and authority to enter into these Terms.

17.b. Our Warranties

We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the Products (but we are not responsible for harmful materials submitted by you) (the "Performance Warranty").

17.c. Warranty Remedy

We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the Product for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to No-Charge Products. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this section.

17.d. WARRANTY DISCLAIMER

EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 17, ALL PRODUCTS, SUPPORT, AND ADDITIONAL SERVICES ARE PROVIDED "AS IS," AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE PRODUCTS NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

18. Limitations of Liability

18.a. Consequential Damages Waiver

EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

18.b. Liability Cap

EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY'S AND ITS SUPPLIERS' AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR THE PRODUCTS AND ADDITIONAL SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

18.c. Liability Cap for Data Incidents

"Special Claims" means any breach by us of Section 3.b (Security) or Section 14 (Confidentiality) of the Agreement resulting in unauthorized disclosure of Your Data in the Product. Special Claims arising under this Addendum are deemed to be Excluded Claims for purposes of Section 18.b (Liability Cap) of the Agreement, subject to the following provision. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, OUR AND OUR SUPPLIERS' AGGREGATE LIABILITY TO YOU FOR SPECIAL CLAIMS WILL NOT EXCEED TWO (2) TIMES THE AMOUNT ACTUALLY PAID BY YOU TO US FOR THE PRODUCTS AND ADDITIONAL SERVICES GIVING RISE TO THE SPECIAL CLAIM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. This Section survives termination or expiration of the Addendum, Agreement or applicable Order.

18.d. Excluded Claims

"Excluded Claims" means (1) amounts owed by you under any Orders, (2) either party's express indemnification obligations in these Terms, and (3) your breach of Section 2.b (Restrictions) in Sparxbox Products.

18.e. Nature of Claims and Failure of Essential Purpose

The parties agree that the waivers and limitations specified in this Section apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.

19. Compliance with Laws

19.a. Legal Compliance

You represent that, in agreeing to, and performing under, these Terms, you are not violating, and will not violate, any governmental laws, rules, regulations or orders that are applicable to your use of the Products ("Applicable Laws"). Without limiting the foregoing, you represent that, in connection with your performance under these Terms, you shall: (a) comply with Applicable Laws relating to anti-bribery and anti-corruption; (b) comply with Applicable Laws imposing export controls and trade sanctions ("Export Laws"), including designating countries, entities and persons ("Sanctions Targets"); and (c) not directly or indirectly export, re-export or otherwise deliver any Sparxbox software, content or services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. You represent that you are not a Sanctions Target or prohibited from receiving Sparxbox software, content or services pursuant to these Terms under Applicable Laws, including Export Laws.

20. Your indemnity

20.a. Indemnification Obligation

You agree to defend, indemnify, and hold harmless Sparxbox, its affiliates, employees, contractors, agents, officers and directors from and against any and all claims, damages, obligations, losses, liabilities, costs, debt or expenses (including without limitation attorneys' fees and costs) arising out of or related to any claim, suit, action or proceeding by a third party arising out of or relating to your use of the Products, breach of these Terms (including any Sparxbox policy referenced in these Terms), violation of law, or any Content that you post, upload or cause to interface with the Products.

21. IP Indemnification

21.a. Intellectual Property Defense

We will defend you against any claim brought against you by a third party alleging that the Products, when used as authorized under these Terms, infringe any third-party patent, copyright or trademark, or misappropriates any third-party trade secret enforceable in any jurisdiction that is a signatory to the Berne Convention (a "Claim"), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable attorneys' fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the Products is (or in your opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of the Product in accordance with these Terms; (ii) substitute a substantially functionally similar Product; or (iii) terminate your right to continue using the Product and refund any prepaid amounts for the terminated portion of the Subscription Term. Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your subscription to a Product in the twelve (12) month period immediately preceding the Claim is less than US$50,000; (2) if the Product is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if the Product is used in combination with any non-Sparxbox product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Products; (5) to any Claim arising as a result of (y) Your Data or circumstances covered by your indemnification obligations in Section 20 (Your Indemnity) or (z) any third-party deliverables or components contained with the Products or (6) if you settle or make any admissions with respect to a Claim without our prior written consent. THIS SECTION (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS WE PROVIDE UNDER THESE TERMS.

22. Publicity Rights

22.a. Customer Identification

We may identify you as a Sparxbox customer in our promotional materials. We will promptly stop doing so upon your request sent to contact@sparxbox.com.

23. Dispute Resolution

23.a. Informal Resolution

In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 23.b (Governing Law; Jurisdiction). All negotiations pursuant to this section will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.

23.b. Governing Law; Jurisdiction

These Terms shall be governed by and construed in accordance with the laws of Victoria, Australia. Any dispute arising under these Terms shall be subject to the non-exclusive jurisdiction of the courts of Victoria, Australia.

23.c. Injunctive Relief; Enforcement

Notwithstanding the provisions of Section 23.a (Informal Resolution) and 23.b (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

23.d. Exclusion of UN Convention and UCITA

The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.

24. Export Restrictions

24.a. Trade Sanctions Compliance

The Product is subject to trade sanctions and laws and regulations that govern the import, export, and use of the Product. These laws or regulations may prohibit Sparxbox from providing you the Product or require that we discontinue making it available to you without notice. By using the Product you agree to comply with all trade sanctions, export and import laws, and regulations and warrant that (i) you are not prohibited from accessing the Product, and (ii) you will not make available the Product to anyone who is prohibited from accessing it under the laws or regulations of any jurisdiction.

25. Changes to the Products

25.a. Product Modifications

You acknowledge that the Products are on-line, subscription-based products, and that in order to provide improved customer experience we may make changes to the Products, and we may update the applicable Documentation accordingly. Subject to our obligation to provide Products and Additional Services under existing Orders, we can discontinue any Products, any Additional Services, or any portion or feature of any Products for any reason at any time without liability to you.

26. General Provisions

26.a. Notices

Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by email contact@sparxbox.com. Your notices to us will be deemed given upon receipt.

26.b. Force Majeure

Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

26.c. Assignment

You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties' permitted successors and assigns.

26.d. Entire Agreement

These Terms are the entire agreement between you and us relating to the Products and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Products or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.

26.e. Conflicts

In event of any conflict between the main body of these Terms and either Our Policies or Product-Specific Terms, Our Policies or Product-Specific Terms (as applicable) will control with respect to their subject matter.

26.f. Waivers; Modifications

No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 1.d (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.

26.g. Interpretation

As used herein, "including" (and its variants) means "including without limitation" (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.

26.h. Independent Contractors

The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.

27. Contact

27.a. Questions

Please contact Sparxbox at contact@sparxbox.com with any questions regarding these Terms.

28. Definitions

28.a. Defined Terms

Certain capitalized terms are defined in this Section, and others are defined contextually in these Terms.

"Additional Services" means Sparxbox Advisory Services, premier or priority support or other services related to the Products we provide to you, as identified in an Order. For the avoidance of doubt, Additional Services do not include the standard level of support included in your subscription.

"Affiliate" means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where "control" means the power to direct the management or affairs of an entity, and "ownership" means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

"Connected Cloud Service" means the cloud service that you have connected to the Product for the purpose of management and reporting of the service using the Product.

"Documentation" means our standard published documentation for the Products, currently located here.

"Feedback" means comments, questions, ideas, suggestions or other feedback relating to the Products, Support or Additional Services.

"Laws" means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

"Notification Email Address" means the email address(es) you used to register for a Product account or otherwise sign up for a Product. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.

"Order" means Sparxbox's applicable online order page(s), flows, in-product screens or other Sparxbox-approved ordering document or process describing the products and services you are ordering from us and, as applicable, their permitted scope of use. As applicable, the Order will identify: (i) the Products, (ii) Subscription Term, (iii) (for paid Orders) the amount or rate you will be charged, the billing and renewal terms, applicable currency, form of payment, domain(s) associated with your use of Products, storage capacity or limits, or other scope of use parameters. Orders may also include Additional Services and No-Charge Products.

"Our Deliverables" means any materials, deliverables, modifications, derivative works or developments that we provide in connection with any Additional Services.

"Our Policies" means our Privacy Policy, Support Policy, Enterprise Support, and (unless specified) any other policies or terms referenced in these Terms.

"Our Technology" means the Products (including all No-Charge Products), Our Deliverables, their "look and feel", any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.

"PO" means a purchase order.

"Product" means any of the Sparxbox-hosted services to which you access or subscribe under this agreement, including any client software we provide as part of the Product.

"Product-Specific Terms" means additional terms that apply to certain Products and Additional Services, currently located here.

"Subscription Term" means your permitted subscription period for a Product, as set forth in the applicable Order.

"Support" means support for the Products.

"Training" means Sparxbox-provided training and certification services.

"Your Data" means any data, content, code, video, images or other materials of any type that you submit to Products. In this context, "submit" (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the Products.

"Your Materials" means your materials, systems, personnel or other resources.