Sparx Cloud Architecture Platform and Hosted Architecture Repository Terms of Service

TERMS OF SERVICE FOR
Sparx Cloud Architecture Platform and Hosted Architecture Repository
IN THE UNITED STATES AND CANADA

Thank you for selecting the Services offered by Sparx Services North America. and/or its subsidiaries and affiliates (referred to as “SSNA”, “we”, “our”, or “us”). Review these Terms of Service (“Agreement”) thoroughly. This Agreement is a legal agreement between you and Sparx Services North America. By accepting electronically (for example, clicking “I Agree”), installing, accessing or using the Services, you agree to these terms. If you do not agree to this Agreement, then you may not use the Services.

A. GENERAL TERMS 

1. AGREEMENT

This Agreement describes the terms governing your use of the SSNA online services provided to you on this website, including content, updates and new releases, (collectively, the “Services”). It includes by reference:

  • SSNA’s Privacy Statement provided to you in the Services available on the website or provided to you otherwise.
  • Additional Terms and Conditions, which may include those from third parties.
  • The Sparx Systems End-User License Agreement for Sparx Software
  • Any terms provided separately to you for the Services, including product or program terms, ordering, activation, payment terms, etc.

2. YOUR RIGHTS TO USE THE SERVICES 

2.1 The Services are protected by copyright, trade secret, and other intellectual property laws. You are only granted the right to use the Services and only for the purposes described by SSNA. SSNA reserves all other rights in the Services. Until termination of this Agreement and as long as you meet any applicable payment obligations and comply with this Agreement, SSNA grants to you a personal, limited, nonexclusive, nontransferable right and license to use the Services.

2.2 You agree not to use, nor permit any third party to use, the Services or content in a manner that violates any applicable law, regulation or this Agreement. You agree you will not:

  • Provide access to or give any part of the Services to any third party.
  • Reproduce, modify, copy, deconstruct, sell, trade or resell the Services.
  • Make the Services available on any file-sharing or application hosting service.

3. PAYMENT. For Services offered on a payment or subscription basis, the following terms apply if you are the User paying for the Services, unless SSNA or its third party affiliate notifies you otherwise in writing. This Agreement also incorporates by reference and includes program ordering and payment terms provided to you on the website for the Services:

  1. Payments will be billed to you in U.S. dollars,
  2. You must pay with one of the following:
    1. A valid credit card acceptable to SSNA;
    1. A valid debit card acceptable to SSNA;
    1. Sufficient funds in a checking or savings account to cover an electronic debit of the payment due;
      or
    1. By another payment option SSNA provides to you in writing.
  3. If your payment and registration information is not accurate, current, and complete and you do not notify us promptly when such information changes, we may suspend or terminate your account and refuse your use of the Services.
  4. SSNA will automatically renew your monthly, quarterly, or annual Services at the then-current rates, unless the Services are cancelled or terminated under this Agreement.
  5. Additional cancellation or renewal terms may be provided to you on the website for the Services.

4.  USE WITH YOUR MOBILE DEVICE

Use of these Services may be available through a compatible mobile device, the Internet, and may require software.  You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees as well as the terms of your agreement with your mobile device and telecommunications provider.  

SPARX SERVICES NORTH AMERICA MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO: 

  1. THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES  AT ANY TIME OR FROM ANY LOCATION;
  2. ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND
  3. ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE SERVICES. 


5. YOUR PERSONAL INFORMATION. You can view SSNA’s Privacy Statement provided with the Services and on the website for the Services. You agree to the applicable SSNA Privacy Statement, and any changes published by SSNA. You agree that SSNA may use and maintain your data according to the SSNA Privacy Statement, as part of the Services.  You give SSNA permission to combine identifiable and non-identifiable information you enter or upload to the Services with that of other users of the Services and/or other SSNA services.  For example, this means that SSNA may use your and other users’ non-identifiable, aggregated data to improve the Services or to design promotions and provide ways for you to compare business practices with other users. SSNA is a global company and may access or store personal information in multiple countries, including countries outside of your own country to the extent permitted by applicable law.

6. CONTENT

6.1 You are responsible for your content. You are responsible for all materials, data, and personal information (“Content“) uploaded, posted or stored through your use of the Services.  You grant SSNA a worldwide, royalty-free, non-exclusive license to host and use any Content provided through your use of the Services.   Archive your Content frequently. You are responsible for any lost or unrecoverable Content. You must provide all required and appropriate warnings, information and disclosures. SSNA is not responsible for the Content or data you submit through the Services.  You agree not to use, nor permit any third party to use, the Services to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following, including but not limited to:

  1. Illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage “flaming” others, or criminal or civil liability under any local, state, federal or foreign law;
  2. Content that would impersonate someone else or falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy;
  3. Except as permitted by SSNA in writing, investment opportunities, solicitations, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding;
  4. Virus, trojan horse, worm or other disruptive or harmful software or data; and
  5. Any information, software or Content which is not legally yours and without permission from the copyright owner or intellectual property rights owner.

6.2 Community forums. The Services may include a community forum or other social features to exchange Content and information with other users of the Services and the public (“Community Forum”). SSNA does not support and is not responsible for the content in these Community Forums.  Please use respect when you interact with other users in a Community Forum. Do not reveal confidential or other information that you do not want to make public. Users may post hypertext links to content of third parties for which SSNA is not responsible.

6.3 SSNA may freely use feedback you provide. You agree that SSNA may use your feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You grant SSNA a perpetual, worldwide, fully transferable, sublicensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to SSNA in any way.

6.4 SSNA may monitor your Content. SSNA may, but has no obligation to, monitor content on the Services. We may disclose any information necessary to satisfy our legal obligations, protect SSNA or its customers, or operate the Services properly. SSNA, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.

7. ADDITIONAL TERMS

7.1 SSNA does not give professional advice. Unless specifically included with the Services, SSNA is not obliged to provide professional services or advice on the use of the services or content created within the software. If you need this type of assistance, additional training and/or consulting services may be purchased at an additional cost.

7.2 We may tell you about other SSNA services. You may be offered other services, products, or promotions by SSNA (“SSNA Services”). Additional terms and conditions and fees may apply.  You grant SSNA permission to use information about your business and experience to help us to provide the SSNA Services to you and to enhance the Services. You grant SSNA permission to combine your business data, if any, with that of others in a way that does not identify you or any individual personally. You also grant SSNA permission to share or publish summary results relating to research data and to distribute or license such data to third parties.

7.3 Communications. SSNA may be required by law to send you communications about the Services or third party products. You agree that SSNA may send these communications to you via email or by posting them on our websites

7.4 You will manage your passwords and accept updates. You are responsible for securely managing your password(s) for the Services and to contact SSNA if you become aware of any unauthorized access to your account. The Services may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve the Services. You agree to receive these updates.

8. DISCLAIMER OF WARRANTIES

8.1 YOUR USE OF THE SERVICES, SOFTWARE, AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SSNA, ITS AFFILIATES, AND ITS THIRD PARTY PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY,”SUPPLIERS”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SERVICES ARE FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SERVICES. SSNA AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER.

8.2 SSNA, ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.

9. LIMITATION OF LIABILITY AND INDEMNITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF SSNA, ITS AFFILIATES AND SUPPLIERS FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM. SUBJECT TO APPLICABLE LAW, SSNA, ITS AFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET SSNA SYSTEMS REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF SSNA AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF SSNA, ITS AFFILIATES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES AND ITS USE.

You agree to indemnify and hold SSNA and its affiliates and Suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys’ fees and costs, arising out of your use of the Services or breach of this Agreement (collectively referred to as “Claims”). SSNA reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by SSNA in the defense of any Claims.

10. CHANGES. We reserve the right to change this Agreement at any time, and the changes will be effective when posted through the Services, on our website for the Services or when we notify you by other means. We may also change or discontinue the Services, in whole or in part. Your continued use of the Services indicates your agreement to the changes.

11. TERMINATION. SSNA may immediately, in its sole discretion and without notice terminate this Agreement or suspend the Services if you fail to comply with this Agreement or if you no longer agree to receive electronic communications. Upon termination you must immediately stop using the Services and any outstanding payments will become due. Any termination of this Agreement shall not affect SSNA’s rights to any payments due to it. SSNA may terminate a free account at any time. Sections 2.2, 3 through 15 will survive and remain in effect even if the Agreement is terminated.

12. EXPORT RESTRICTIONS. You acknowledge that the Services, including the mobile application, and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that you will comply with these laws and regulations, and will not export or re-export any part of the Services, in violation of these laws and regulations, directly or indirectly.

13. GOVERNING LAW. Wisconsin state law governs this Agreement without regard to its conflicts of laws provisions.

14DISPUTES.  ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE SERVICES OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims qualify.  The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply Wisconsin law to all other matters.  Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND SSNA ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY.  IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS.  YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS. 

This Section 14 shall survive expiration, termination or rescission of this Agreement. 


15. GENERAL. This Agreement, including the Additional Terms below, is the entire agreement between you and Sparx Services North America and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You cannot assign or transfer ownership of this Agreement to anyone without written approval of SSNA. However, SSNA may assign or transfer it without your consent to (a) an affiliate, (b) a company through a sale of assets by SSNA or (c) a successor by merger. Any assignment in violation of this Section shall be void. If you want to request a transfer of this Agreement, contact Sparx Services North America via an email to: sales@sparxsystems.us.
 

B.         ADDITIONAL TERMS AND CONDITIONS FOR Sparx Cloud Architecture Platform and Hosted Architecture Repository SERVICES

Your use of the following Services provided by SSNA are subject to the General Terms of Service above and these Additional Terms and Conditions.  These Additional Terms and Conditions will prevail over any conflict or inconsistency with the General Terms of Service.

If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions as its authorized representative, in which case the terms “you” or “your” will refer to such entity and its affiliates as well as you.  If the legal entity that you represent does not agree with these terms and conditions, you must not accept this Agreement, register, and use or access the Services as an authorized representative. 

1.     MODIFICATION OF SERVICES.  

SSNA has the right, in our sole discretion, to revise, update, or otherwise modify the Services or alter your access to the Services; and for material changes, to the extent reasonably possible, we will provide you with reasonable notice either posted on the website hosting the Services or to the Administrator’s (as defined below) email address.  Note that we may modify the amount of storage space you have through the Services and the number of times (and the maximum duration for which) you may access the Services in a given period of time. In the event we need to maintain the security of the system or comply with any laws or regulations, we reserve the right to modify the Services immediately, and to provide the Administrator with electronic or written notice within thirty (30) days after any material modifications.  You may reject any changes to the Services by discontinuing use of the Services to which such changes relate. Your continued use of the Services will constitute your acceptance of and agreement to such changes.

2.     USERS.  

2.1.   Types of Users.  The Services allow the following types of access and user rights:  When you initially register for and create an account for a Service, you are, or a party that you authorize is, the administrator (“Administrator”).  Administrators may authorize additional individuals to access the Services through the same account (“Additional Users”).  The number of Additional Users may be limited based upon the subscription you purchase.  Additional Users may include, for example, your employees, vendors, contractors, agents, and clients.  You may be referred to in this Agreement as “you”, “your”, or “User”, or you may be referred to specifically in your applicable role as an Additional User or an Administrator.  All Users will be required to accept this Agreement before accessing the Services.  As any User of the Services, unless otherwise explicitly stated in this Agreement, all of these terms apply to you each time you access the Services.

2.2.   For Administrators. As an Administrator, the following applies to you:  Only Administrators may designate another individual as a replacement Administrator.  You agree that Additional Users are SSNA customers, but that you are responsible for your Additional Users’ access to the Services.  Depending on the types of access rights you grant to Additional Users, Additional Users may be able to delete, copy, or view the Content and data accessible in your account and add charges to the subscription.  As Administrator, you are responsible for the access to the Services you grant to Additional Users.  If you choose to close or terminate your access to a Service, Additional Users will no longer be able to access such Service or any of the Content within such Service.  You agree to provide sufficient notice to Additional Users of your desire to terminate access to the Services before taking such actions.  A violation of any terms of this Agreement by an Additional User may result in the termination of an Administrator’s or any Additional User’s access to the Services.

2.3.   For Additional Users.  As an Additional User, the following applies to you: When you register to access an account for which you are not an Administrator, you understand that you are accessing the Service as an Additional User and you may not have the same level of access or the same rights as an Administrator. Depending on the types of rights you are granted by the Administrator, you may be able to delete, copy, or view other User’s Content and data.  Please make sure that you have an agreement with the Administrator about your role and rights.  If an Administrator chooses to close or terminate access to a Service, Additional Users will no longer be able to access such Service or any of the Content within such Service.  As an Additional User, you understand that if you violate this Agreement, your access to our Services may be terminated, and we retain the right to also terminate access for any other Users of the same account. 

3.     SUBSCRIPTION.

3.1.   Payment for Services.  The Services are licensed on a monthly or yearly subscription basis to the User that pays for the Service.  As the Administrator, you may choose whether you or another User pays for the license. Please review all of the details of the subscription that you purchase; some subscriptions provide access to one Service and others provide access to more than one Service.  

3.2.   Subscription Cancellation. The Administrator may notify SSNA if he or she wants to cancel the subscription prior the beginning of the new subscription period.  In the event that SSNA is unable to charge a User’s chosen payment method in accordance with this Agreement, we may terminate this Agreement and access to the Services immediately, without notice.  If you stop using the Services, SSNA has fulfilled your subscription term.  Fees for the Services are not eligible for any proration of unused subscriptions or refunds, even if access to the Services is cancelled or terminated.  After your access to the Services is terminated, you may no longer have access to any of the data or Content in the Services.  We suggest you retain your own copies of any data or Content that you may need as SSNA is not responsible for providing you with access to your Content or the Services after any cancellation or termination of this Agreement.

4.     ACCOUNT FEATURES. 

4.1.   Trial Version.  If you registered for a trial use of the Services, you will have access to the Services for the specified period of the trial (“Trial Period“).  You must decide to purchase a license to the Services within the Trial Period in order to retain access to any Content or data provided or created during the Trial Period. If you do not purchase a license to the Services by the end of the Trial Period, you will not be able to access or retrieve any of the data or Content you added to or created with the Services during the trial.

4.2.   Beta Features.  From time to time, we may include new or updated beta features in the Services (“Beta Features”).  Beta Features may have associated fees, which will be disclosed to you at the time you choose to use the Beta Features.  We understand that your use of any Beta Feature is voluntary.  You understand that once you use a Beta Feature, you may be unable to revert back to a prior non-beta version of the same or similar feature. Additionally, if such reversion is possible, you may not be able to return or restore data created within the Beta Feature back to the prior non-beta version.  The Beta Features are provided on an “as is” basis and may contain errors or inaccuracies that could cause failures, corruption or loss of data and information from any connected device. You acknowledge and agree that all use of any Beta Feature is at your sole risk.

5.     DATA.

5.1.   Personal Data.  If you are providing data to us that is not personal to you, you agree that you have either provided the owner of such personal data notice or received permission from the owner of such personal data, as required by applicable law, for us to: (a) use or disclose the data in accordance with our Privacy Policy, (b) move the data outside of the country of residence of such owner of the personal data, if applicable, (c) provide the data to Third Party Products that you approve, and (d) otherwise use and disclose the data in accordance with this Agreement.  You acknowledge and agree that SSNA may provide data in your account to any Additional Users to which that data is applicable or personal to.

5.2.   Public Content.  As a User you may have the opportunity to share your data, Content, or ways in which you aggregate data (“Account Content”) with other Users, other SSNA customers, and other third parties.   When sharing any Account Content, you agree not to share any confidential information.  If you have the option of accessing another User’s Account Content, you understand and agree that the Account Content is being provided by the User, and not SSNA, for information and guidance purposes only, and SSNA and such User are not responsible in any way for your use the Account Content.

6.     OTHER PRODUCTS AND SERVICES.  6.1.   Third Party Products.  By using these Services, you agree that we may market to you or offer you access to products or services from third parties (“Third Party Products”).  If you decide to use or access any Third Party Products,you agree that you are solely responsible for your relationship with the provider of the product.  SSNA is not affiliated with Third Party Products and does not endorse or recommend any Third Party Products.  You agree that the providers of the Third Party Products, and not SSNA, are solely responsible for their own actions or inactions.  SSNA is not liable for any damages, claims or liabilities arising out of or related to any Third Party Products.  You agree that you will (a) review and comply with all Third Party Product terms and conditions, and (b) not use the Third Party Product in any manner that would infringe or violate the rights of SSNA or any other party or in furtherance of criminal, fraudulent or other unlawful activity.

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