LAST UPDATED: April 10, 2014
This Agreement is between you (“you”) and Spritz Technology, Inc. (“Spritz,” “we,” “us”) concerning your use of the online site currently located at http://www.spritzinc.com/ (together with any successor site(s) and all Services (as defined below), the “Site”).
1. Acceptance of Terms. The Site is made available by Spritz subject to this Agreement. We reserve the right to update or make changes to this Agreement from time to time in our sole discretion, which changes we may provide to you by any reasonable means, including without limitation, by posting the revised version of this Agreement on the Site. You can determine when this Agreement was last revised by referring to the “LAST UPDATED” legend at the top of this Agreement. When using any Services (as defined below), you agree that you are subject to any additional posted guidelines, rules, terms and conditions applicable to such Services, which are hereby incorporated by reference into this Agreement.
We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: modify or discontinue the Site, with or without notice; charge fees in connection with the use of the Site; modify and/or waive any fees charged in connection with the Site; and/or offer opportunities to some or all users of the Site. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site, in whole or in part, or of any Service, content, feature or product offered through the Site. Your continued use of the Site after such changes will acknowledge your acceptance of such changes.
If you are a developer who has signed up to use Spritz’s SDK or APIs for the development of applications incorporating Spritz technologies, you also agree to the Spritz Developer’s Agreement.
2. Jurisdictional Issues. The Site is controlled and operated by Spritz from the United States, and is not intended to subject Spritz to the laws or jurisdiction of any state, country or territory other than that of the United States. Spritz does not represent or warrant that the Site or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States. In choosing to access the Site, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. You are also subject to United States export controls and are responsible for any violations of such controls, including any United States embargoes or other federal rules and regulations restricting exports. We may limit the Site’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion. Not all products or services described on the Site are available in all states or territories.
3. Description of the Services. We provide users of the Site with access to certain content and services related to our Spritz text streaming technology, which may include, without limitation: (a) sales and support of software incorporating our technology and provision to developers of tools enabling the development of applications using our technology; (b) content such as information regarding our technology, news about Spritz and its technology; and (c) access to forums for discussion of issues of interest to the Spritz developer and/or user communities (such content and services), collectively, the “Services”).
4. Rules of Conduct. While using the Site you will comply with all applicable laws, rules and regulations. In addition, we expect users of the Site to respect the rights and dignity of others. Your use of the Site is conditioned on your compliance with the rules of conduct set forth in this section; your failure to comply with such rules may result in termination of your access to the Site pursuant to Section 14 below. You agree that you will not:
• Post, transmit, or otherwise make available, through or in connection with the Site:
o Any material that would give rise to criminal or civil liability.
o Any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that is harmful or invasive or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
• Use the Site for any fraudulent or unlawful purpose.
• Use the Site to defame abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including without limitation others’ privacy rights or rights of publicity, or harvest or collect personally identifiable information about other users of the Site.
• Impersonate any person or entity, including without limitation any representative of Spritz; falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Site; or express or imply that we endorse any statement you make.
• Interfere with or disrupt the operation of the Site or the servers or networks used to make the Site available; or violate any requirements, procedures, policies or regulations of such networks.
• Restrict or inhibit any other person from using the Site (including without limitation by hacking or defacing any portion of the Site).
• Reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of, or access to the Site.
• Modify, adapt, translate, reverse engineer, decompile or disassemble any portion of the Site.
• Remove any copyright, trademark or other proprietary rights notice from the Site or from materials originating from the Site.
• Frame or mirror any part of the Site without Spritz’s express prior written consent.
• Create a database by systematically downloading and storing Site content.
• Use any meta tags or any other hidden text utilizing Spritz’s name or trademarks without Spritz’s express consent.
• Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or in any way gather Site content or reproduce or circumvent the navigational structure or presentation of the Site without Spritz’s express prior written consent. Notwithstanding the foregoing, Spritz grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Spritz reserves the right to revoke these exceptions either generally or in specific cases.
Additionally, you acknowledge and agree that you (and not Spritz) are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment, and services needed to access and use the Site, and paying all charges related thereto.
6. Registration; User Names and Passwords. You may need to register to use all or part of the Site. You represent and warrant that all information submitted to Spritz in connection with such registration is complete and accurate. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not Spritz, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your Site account. We reserve the right to invalidate your credentials an/or restrict your access to use the Site or Services at any time or for any reason.
7. Profiles and Forums. Site visitors may be permitted to post certain information and materials on “profile pages” (each, a “Profile”) or on interactive services (for example, message boards, forums, blogs, chat functionality, messaging functionality and comment functionality on the Site, among other services) that we may provide through the Site (each, a “Forum”). Please note that Site visitors may post messages or make statements in the Profiles and Forums that are inaccurate, misleading or deceptive. Spritz and its employees, officers, directors, shareholders, agents, representatives, licensors, suppliers and service providers (collectively, including Spritz the Spritz Entities”) neither endorse nor are responsible for any opinion, advice, information or statements made in the Profiles and Forums by third parties. Without limitation, the Spritz Entities are not responsible for any information or materials made available through the Profiles and Forums (including errors or omissions in Profiles and Forum postings or links or images embedded in a Profile or in Forum messages) or results obtained by using any such information or materials. Under no circumstances will any of the Spritz Entities be liable for any loss or damage caused by your reliance on such information or materials.
8. Written Submissions. The Site may make available certain functionality (including e-mail addresses, the developer “Sign Up” page, a “contact us” page, Forums and Profiles) through which you are able to post or send information and materials (each, a “Submission”). For purposes of clarity, subject to the terms and conditions of Paragraph 9 of this Agreement and Spritz’s Unsolicited Ideas Policy Unsolicited Ideas Policy, you retain any ownership rights that you may have in any of the Submissions that you post. For each Submission that you make available through or in connection with the Site, you hereby grant to us a world-wide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to: (i) reproduce, distribute, perform and display (publicly or otherwise), adapt, modify and otherwise use and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as displaying a user comment on the front page of the Site as a testimonial), and you hereby represent and warrant that you have all necessary rights to grant the foregoing license.
9. Feedback, Suggestions and Ideas. Unless we expressly agree otherwise in writing, if you provide us with any ideas, proposals, suggestions or materials (“Input”), whether related to the Site, the Services or otherwise, you hereby acknowledge and agree that (a) your provision of any Input is gratuitous, unsolicited and without restriction and does not place the Company under any fiduciary or other obligation; (b) any Input is not confidential and the Company has no confidentiality obligations with respect to such Input; and (c) to the extent permitted under applicable law, any Input will become our sole property. Without limiting the foregoing, you hereby grant to us a world-wide, royalty-free, fully paid-up, exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to: (i) reproduce, distribute, perform and display (publicly or otherwise), adapt, modify and otherwise use and exploit such Input, in any format or media now known or hereafter developed, and you hereby represent and warrant that you have all necessary rights to grant the foregoing license. We may use Input for any purpose whatsoever without compensation to you or any other person. You are and remain responsible and liable for the content of any Input. Please see Spritz’s Unsolicited Ideas Policy for further information regarding unsolicited ideas you may provide to Spritz.
10. Communications with Us. When you visit our Website or send e-mails to us, you are communicating with us electronically. You consent to receive communications with us electronically. You agree that, except where contrary to applicable law, that all agreements, notices, disclosures, policies and other communications that we provide to you electronically satisfy any legal requirement that all such communications be in writing.
11. Accuracy of Information. We attempt to ensure that information provided on or in connection with this Site is complete, accurate and current. Despite our efforts, such information may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or currentness of such information.
12. Monitoring. You acknowledge and agree that (a) we reserve the right (but have no obligation) to do any or all of the following, at our discretion: (i) monitor Submissions; and/or (ii) disclose any Submissions or Input, and the circumstances surrounding their transmission, to any third party in order to operate the Site; to protect the Spritz Entities, and the Site’s users and visitors; to comply with legal obligations or governmental requests; to enforce this Agreement; or for any other reason or purpose.
13. Spritz’s Proprietary Rights. The information and materials made available through the Site, including the Services, are and shall remain the property of Spritz and its licensors and suppliers, and are protected by copyright, trademark, patent, and/or other proprietary rights and laws. Subject to your compliance with this Agreement, and solely for so long as you are permitted by Spritz to access and use the Site, you may view one (1) copy of any content on the Site to which we provide you access hereunder on any single computer solely for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices. Except as expressly authorized in advance by Spritz in writing, you agree not to reproduce, modify, rent, lease, loan, sell, distribute, or create derivative works based (whether in whole or in part) on, all or any part of the Site or any materials made available through the Site.
Trade names, trademarks and service marks of Spritz include without limitation, Spritz Technology, Inc., Spritz, “redicle”, Spritz’s distinctive reticle and red letter reader design, “spritz” “spritzing” and any associated logos or trade dress. All trademarks and service marks on the Site not owned by Spritz are the property of their respective owners. The trade names, trademarks and service marks owned by Spritz, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of Spritz’s trade names, trademarks or service marks without our express prior written consent.
14. Links. The Site may provide links to other web sites and online resources. Because Spritz has no control over such sites and resources, you acknowledge and agree that the Spritz Entities are not responsible for the availability of such external sites or resources, and the Spritz Entities neither endorse nor are responsible or liable for any content, advertising, products or other materials on or available through such sites or resources. Spritz is not affiliated with any other company or organization, and the listing of any entity on the Site does not imply any endorsement by Spritz of that entity or its products or services. Other web sites may provide links to the Site with or without our authorization. You acknowledge and agree that the Spritz Entities do not endorse such sites, and are not and shall not be responsible or liable for any links from those sites to the Site, any content, advertising, products or other materials available on or through such other sites, or any loss or damages incurred in connection therewith.
YOU AGREE THAT YOUR USE OF THIRD PARTY WEB SITES AND RESOURCES, INCLUDING WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEB SITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.
Spritz shall have the right, at any time and in its sole discretion, to block links to the Site through technological or other means without prior notice.
15. Disclaimer of Warranties. THE SITE AND ANY GOODS OR SERVICES MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SITE ARE PROVIDED TO YOU “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SITE, INCLUDING WITHOUT LIMITATION, ANY RELIANCE ON THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY MATERIALS AVAILABLE THROUGH THE SITE. THE SPRITZ ENTITIES DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SITE AND ANY PRODUCT OR SERVICE (INCLUDING WITHOUT LIMITATION, THIRD PARTY PRODUCTS AND SERVICES) OBTAINED THROUGH THE SITE, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE.
16. LIMITATION OF LIABILITY. THE SPRITZ ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, USE, DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SITE, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. IN PARTICULAR, AND WITHOUT LIMITATION, THE SPRITZ ENTITIES WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE OR FROM ANY CONTENT POSTED ON THE SITE BY THE SPRITZ ENTITIES OR ANY THIRD PARTY. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE IS TO STOP USING THE SITE. THE MAXIMUM LIABILITY OF SPRITZ FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO [COMPANY] TO ACCESS AND USE THE SITE.
IT IS POSSIBLE THAT APPLICABLE LAW MAY NOT ALLOW FOR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES OR EXCLUSIONS OR LIMITATIONS OF CERTAIN DAMAGES; SOLELY TO THE EXTENT THAT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
While we try to maintain the integrity and security of the Site and the servers from which the Site is operated, we do not guarantee that the Site will be or remain secure, complete or correct, or that access to the Site will be uninterrupted. The Site may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Site. If you become aware of any unauthorized third party alteration to the Site, contact us at firstname.lastname@example.org with a description of the material(s) at issue and the URL or location on the Site where such material(s) appear.
17. Indemnity. You agree to defend, indemnify and hold harmless the Spritz Entities, from and against all claims, losses, costs and expenses (including attorneys fees) arising out of (a) your use of, or activities in connection with, the Site (including all Transactions); and/or (b) any violation of this Agreement by you.
18. Termination. This Agreement is effective until terminated. Spritz, in its sole discretion, may terminate your access to or use of the Site, at any time and for any reason, including if Spritz believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination, your right to use the Site will immediately cease. You agree that any termination of your access to or use of the Site may be effected without prior notice, and that Spritz may immediately deactivate or delete your password and user name, and all related information and files associated with it, and/or bar any further access to such information or files. You agree that the Spritz Entities shall not be liable to you or any third party for any termination of your access to the Site or to any such information or files, and shall not be required to make such information or files available to you after any such termination. Sections 2, 8, 9, 10, 12, 13 (other than the second sentence), 14–19 and 21-25 shall survive any expiration or termination of this Agreement.
19. Governing Law; Jurisdiction. This Agreement is governed by and shall be construed in accordance with the laws of the State of Massachusetts, U.S.A., without regard to its principles of conflicts of law. EXCEPT FOR (a) DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT (b) DISPUTES ARISING UNDER OR RELATING TO THE SPRITZ DEVELOPER’S AGREEMENT; OR (c) DISPUTES REGARDING INTELLECTUAL PROPERTY OWNED BY SPRITZ, ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND SPRITZ, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND, BY YOUR ACCESS TO OR USE OF THIS SITE, YOU AGREE THAT SPRITZ AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. BY YOUR ACCESS TO OR USE OF THE SITE, YOU AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND, BY YOUR ACCESS TO OR USE OF THE SITE, YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”), as amended by these Terms. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances shall be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state, or local agencies, and, if the law allows, they can seek relief against us for you.
20. Contact Us. If you have any questions regarding the meaning or application of this Agreement, please direct such questions to email@example.com. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us.
21. Copyright and Trademark Infringement Claims. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Site infringe your copyright, you (or your agent) may send Spritz a notice requesting that Spritz remove the material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send Spritz a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices should be sent to: Spritz Technology, Inc., 1348 E 3300 S Suite 101, Salt Lake City, Utah 84106; or by email to firstname.lastname@example.org. We suggest that you consult your legal advisor before filing a notice or counter-notice. If you believe in good faith that materials available on the Site infringe your trademark, please provide detailed information regarding the alleged infringement and specific identification of the allegedly infringed marks (including registration information, if any) to the same addresses provided above for DMCA notices regarding copyright.
22. Notice for California Residents. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please contact us by writing to Spritz Technology, Inc., 1348 E 3300 S Suite 101, Salt Lake City, Utah 84106 or by calling us at (801) 923-4682. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
23. Ability to Enter Into This Agreement. By using the Site, you affirm that you are of legal age to enter into this Agreement.
24. Filtering. We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available on the two web sites GetNetWise (http://kids.getnetwise.org/) and OnGuard Online (http://onguardonline.gov/). Please note that Company does not endorse any of the products or services listed at such site.
25. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Spritz. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. This is the entire Agreement between you and Spritz relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Spritz relating to such subject matter. Notices to you may be made via posting to the Site, by e-mail, or by regular mail, in Spritz’s discretion. The Site may also provide notices of changes to this Agreement or other matters by displaying such notices or by providing links to such notices. Without limitation, you agree that a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Spritz will not be responsible for failures to fulfill any obligations due to causes beyond its control.
Site © 2014 Spritz Technology, Inc. unless otherwise noted. All rights reserved.