Welcome to Sparkbay! These terms of services (the “Agreement”) govern the use of the website and the platform provided by Sparkbay Technologies inc. (“Sparkbay”, “we” or “us”). By accessing the website and/or the platform, you agree to the Agreement on behalf of yourself as a User (as defined below) and, as the case may be, on behalf of the organization that you represent (“Customer”).

DEFINITIONS

The following capitalized terms shall have the meaning ascribed to them below:

User Content” means any content, which may include Personal Information of Users, that Customer or Users submit or transfer to Sparkbay in conjunction with the Services, including customized questions drafted by the Users, answers to surveys, answers to polls, pictures and comments;

Effective Date” means (i) for a User, the first date a User accessed the Website or the Platform; or (ii) for a Customer, the last date the Customer signed the Service Order or the date Customer accepted the Agreement, as the case may be;

Platform” means the workplace engagement tools commercialized by Sparkbay as “Sparkbay” and accessed by Users;

User” means you and any individual to whom Customer provides access to the Service, including any account administrators, company managers, or group managers;

“Website” means the website at sparkbay.com and any other websites through which Sparkbay makes the Services available.

SERVICE

During the Term, Sparkbay grants to Customer and its Users the right to access and use the Platform, and any related services, in accordance with this Agreement (the “Services”).

PROVISION OF SERVICES

Access to Services. Sparkbay will establish a corporate account that will enable Customer to provide access to the Service to authorized Users.

Restrictions. You agree to, and to cause all Users to, use the Service solely as set forth in this Agreement. We reserve the right to suspend access to the Service to Customer and/or any Users for violations of this Agreement. In the event that a User’s account is suspended or terminated pursuant to this Agreement, such User’s access to the Service shall also be suspended. Customer shall not, and shall not authorize others to, (a) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code or underlying technology, methodologies or algorithms of the Service, except to the extent allowed by applicable law, (b) sublicense, lease, rent, sell, give, or otherwise transfer or provide the Service to any unaffiliated third party. For clarity purposes, Customer and Users shall not access the Service in order to build a product or service competing with the Services or to build a product using ideas, features, functions or graphics similar to those of the Service. In the event that we suspect any breach of this section, we may suspend Customer’s and/or User access to the Service without advanced notice, in addition to such other remedies as we may have. We reserve all rights not expressly granted to Customer or Users under this Agreement.

Unacceptable Conduct of Users. To help ensure a safe and productive use of the Platform, Users shall not, and Customer shall ensure that Users do not have inappropriate conduct including (i) attempting to reveal the identity of a User; (ii) impersonating any other person or entity; (iii) using the Services to send spam or otherwise unsolicited messages in violation of applicable laws; or (iv) allowing the submission of any User Content, or using User Content in a way, that is illegal, harmful, threatening, abusive, violent, harassing, defamatory, libelous, vulgar, obscene, offensive, indecent, humiliating, hateful, unethical or otherwise objectionable, including based on race, ethnicity, national origin, religious affiliation, sexual orientation, sex, gender identity or physical or mental disability. Customer and Users understand that by using the Services, they may be exposed to User Content submitted by Users that is in breach of this Section, and under no circumstances will Sparkbay be liable in any way for any such User Content. Sparkbay shall have the right, at its sole discretion, to remove any User Content that violates the Agreement, and to reveal the identity of a User to Customer or any authority if required by law to do so, if such User transfers User Content in violation of this Section. CUSTOMER AND USERS SHALL BE RESPECTFUL OF THE SURVEY RESPONDENTS’ RIGHT TO REMAIN ANONYMOUS. It is Customer’s responsibility to monitor and control all activity conducted by Users on the Sparkbay Platform. Sparkbay is under no obligation to review how Users are using the Sparkbay Platform, including how Survey Respondents answer surveys and polls and provide feedback and comments. SPARKBAY ASSUMES NO LIABILITY FOR ANY UNACCEPTABLE CONDUCT OF USERS.

PAYMENTS

Service Fees. In consideration of our provision of the Services, Customer agrees to pay us  any recurring fees in connection with the Services (the “Service Fees”). The Service Fees are specified on the Website, unless other payment terms have been agreed to in writing between Customer and Sparkbay. Customer further acknowledges and agrees that the Services Fees for the paid subscription are determined in accordance with the number of Users and that if the number of Users changes, the Service Fees will be adjusted accordingly. Customer agrees that its subscription be automatically renewed at the Renewal Date for the same subscription period as the previous one, unless it cancels its subscription before the Renewal Date. Customer is responsible for timely cancelling its subscription regardless of whether it receives any renewal prior notice from Sparkbay. For the purpose of this Agreement a “Renewal Date” is the first day following the expiration of a subscription period.

Revised Service Fees. Sparkbay reserves the right to revise the Service Fees applicable to a paid subscription in its sole discretion. The revised Service Fees will take effect as of the next Renewal Date for the next period of a paid subscription further to a prior notice from Sparkbay to Customer.

Payment Terms. Customer authorizes us to automatically debit all applicable fees from Customer’s designated payment method on the date such charges become due. Customer must keep their payment information up-to-date and accurate.

Free trial. From time to time, Sparkbay may offer trials of the paid subscription for a specified period without payment (a “Trial”). Sparkbay reserves the right, in its absolute discretion, to determine Customer’s eligibility for a Trial and to withdraw or to modify a Trial at any time without prior notice and with no liability. Upon the expiration of the Trial period, Customer will only be able to access and use those features of the Service available under the free subscription, unless Customer subsequently upgrades to a paid subscription of the Services.

Taxes. Unless otherwise stated, the Service Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer is responsible for paying Taxes. Sparkbay will invoice Customer for such Taxes if Sparkbay believes it has a legal obligation to do so and Customer agrees to pay such Taxes if so invoiced.

Currency. Service Fees are in United States dollars unless indicated otherwise.

PERSONAL INFORMATION.

In the course of using the Services, Customer may transfer to us personal information. We agree to collect, access or process any personal information in accordance with our Privacy Policy available at sparkbay.com/en/privacy. Customer agrees and consents to the transfer, processing and storage of personal information in accordance with the Agreement and the Privacy Policy.

USER CONTENT

User Content.Customer or the User represents and warrants that it owns or has obtained all necessary rights, title and interest, and obtained all necessary consents to transfer User Content in relation with the Agreement, and that User Content doesn’t infringe any third party intellectual property right and is used in accordance with any labor laws applicable to Customer. Customer or the User grants Sparkbay a worldwide, non-exclusive, perpetual and royalty-free right to access, use, process, copy, distribute, perform, export and display User Content, only to the extent permitted by law and as reasonably necessary (i) to provide, maintain and improve the Services; (ii) to prevent or address service, security, support or technical issues; or (iii) to create anonymized and aggregated data non-related to a specific Customer, which does not constitute User Content and is owned by Sparkbay, including for use as benchmarking and marketing purposes in accordance with the Privacy Policy or as otherwise expressly permitted in writing by Customer or as required by law. This right continues with respect to anomymized data and any residual backup copies of User Content made in the ordinary course of business even after termination of the Agreement.

User Content subject to Anonymity and Confidentiality.The answers to surveys, answers to polls, comments, feedbacks and suggestions provided by a Survey Respondent are anonymous and confidential, unless the Survey Respondent opts within the Sparkbay Platform to remove the anonymity and confidentiality with respect to such content. Any User Content for which Survey Respondents have not opted to remove the anonymity and confidentiality shall be kept confidential by Sparkbay and not shared with Customer. Where Sparkbay receives a request from a Survey Respondent to delete his or her comment, which may contain Personal Information, or from a User to receive the Personal Information concerning him or her, which he or she has provided to the Customer and which is being processed by Sparkbay, Customer hereby authorises Sparkbay to comply with that request.

Protection of User Content. Sparkbay shall store and process the User Content in a manner consistent with industry security standards and in accordance with the Privacy Policy. Sparkbay has implemented technical, organizational and administrative systems, policies, and procedures as well as other measures detailed in the Privacy Policy to help ensure the security, integrity and confidentiality of User Content and to mitigate the risk of unauthorized access to or use of User Content. Nonetheless, Customer acknowledges and agrees that hosting data online involves risks of unauthorized disclosure, loss or exposure and that, in accessing and using the Sparkbay Platform, Customer assumes such risks. To the extent authorized by law, Sparkbay offers no representation, warranty or guarantee that User Content shall not be subject to unauthorized use or disclosure.

Disclosure of User Content. Unless it receives Customer’s prior written consent, Sparkbay shall not intentionally grant any third party access to User Content, except to Sparkbay’s third-party service providers in connection with the performance or the improvement of the Services or in accordance with the Privacy Policy. Before sharing any User Content with any of its third-party service providers, Sparkbay will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of User Content and preventing unauthorized access. Notwithstanding the foregoing, Sparkbay may disclose User Content as required by applicable law or by proper legal or governmental authority or in accordance with the Privacy Policy. Unless prohibited by law or any court order, Sparkbay shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

TERM AND TERMINATION

Term. This Agreement is effective as of the Effective Date, and (i) for Customer, until all subscriptions terms to the Platform have expired or until they are terminated as set forth herein, or (ii) for a User, as long as the User is accessing the Website or the Platform (the “Term”).

Termination. Either party may terminate this Agreement with or without cause at any time with written notice to the other party. All provisions of this Agreement that by their nature should survive termination of this Agreement shall survive (including, without limitation, (i) all limitations on liability, (ii) disclaimers of warranties, (iii) choices of law and judicial forum and (iv) intellectual property protections and licences).

No Refunds. Payments are nonrefundable and there are no refunds or credits for partially used periods.

WARRANTY AND DISCLAIMER OF LIABILITY

Mutual Warranties. Customer and Sparkbay represents and warrants that: (a) such party has the full right, power and authority to enter into this Agreement; and (b) such party’s acceptance of this Agreement, as well as such party’s performance of the obligations set forth in this Agreement, does not and will not violate any other agreement to which such party is a party.

Customer Warranties. Customer represents and warrants that it has all rights and permissions necessary to provide Sparkbay with personal information provided to Sparkbay hereunder in connection with the Service.

Disclaimer of Warranties. Except as expressly provided herein, Sparkbay provides the Service “as is” and without warranty. Sparkbay does not warrant that the functions contained in the Service will meet Customer’s requirements or that the operation of the Service will be uninterrupted or error free. Sparkbay hereby disclaims all other warranties with respect to this agreement, whether express or implied, including, without limitation, (a) any implied or statutory warranties covering the Service, and (b) any implied warranties of merchantability, noninfringement or fitness for a particular purpose.

Limitations of Liability.  (a) In no event shall Sparkbay be liable for any indirect, punitive, incidental, exemplary, special or consequential damages, or for loss of business or profits, suffered by you or any third party arising out of this agreement, whether based on contract, tort or any other legal theory, even if Sparkbay (or its agents) have been advised of the possibility of such damages; and (b) in no event shall Sparkbay be liable under this agreement for any direct damages in an amount exceeding the amounts actually paid by Customer to us in the six (6) month period immediately preceding the event giving rise to such claim.

GENERAL CONDITIONS

Governing Law. This Agreement shall in all respects be interpreted, construed in accordance with, and governed by the laws of the Province of Québec and the laws of Canada applicable in Québec without regard to its principles regarding conflict of laws. Any litigation or dispute arising from or related to use of the Website or Services or this Agreement shall be subject to the jurisdiction of the courts of the District of Montreal, Canada.

Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Assignment. This Agreement is not transferable and may not be assigned by the Customer or User, in whole or in part, without our prior written consent. Notwithstanding anything contained in this clause, either party may assign this Agreement without such consent, but with prior written notice to the other, in connection with a merger or a sale of all or substantially all of the equity or assets of said party. Subject to the foregoing, this Agreement shall be binding upon all successors and assigns of a party.

Headings. Section headings are for convenience only and shall not be considered in the interpretation of this Agreement.

Language. The parties acknowledge that they have requested that this Agreement and all related documents be drawn up in the English language. Les parties reconnaissent avoir requis que la présente entente et les documents qui y sont relatifs soient rédigés en anglais.