Sparkly (“Sparkly”, “us”, “we” or “our”) operates online applications that complement a user’s use of the Zendesk features and programs.
We are not responsible for the conduct of any of our Users either online or offline.
B. For that reason these Terms are important and you should ensure that you read them carefully. You may contact us with any questions before you use the Application by emailing email@example.com.
C. By using the Application you acknowledge and agree that you have read and understand these Terms and you agree to be bound by them. If you do not agree to the Terms, there is no agreement and your are not allowed to use the Application.
1.1. “Application” means any Sparkly application acquired through our website located at sparkly.dev or www.zendesk.com/apps.
1.2. “Confidential Information” means any of our information, or the information of another User which is designated as confidential or which is of a confidential or sensitive nature, which is marked or denoted as confidential or which a reasonable person to whom that information is disclosed or to whose knowledge the information comes would consider confidential.
1.3. “Content” means anything that is uploaded or otherwise transmitted through the Application, and when it is introduced by you, it is your Content.
1.4. “Data Controller” means Sparkly otherwise referred to as “Sparkly”, “us”, “we” or “our”.
1.5. “Data Processor” means any third party that we use to process your personal information.
1.6. “Intellectual Property” means all intellectual property rights (including, without limitation, all registered and unregistered copyright, designs, trade marks and patents) of any nature in any technology, trade secrets, User details (including, but not limited to, User emails, telephone numbers and addresses) and User-related information, software, program, inventions, designs, works and subject matter belonging to us.
1.7. “Membership Data” means any information provided by you to us as required to access or use the Application.
1.8. “Third Party” means an entity other than us, our subsidiaries or You.
1.9. “User” means any person who purchases the Application and accesses the Application, regardless of the nature of that access whether that party is or is not identified to us.
1.10. “You” means a User or any other person accessing the Application.
1.11. “Zendesk Website” means the website located at www.zendesk.com.
2. Use of the Application
2.1. We grant you a non-exclusive, non-transferable licence to use the Application in accordance with these Terms.
2.2. The Application may contain links to other websites and may contain Content added by Third Parties. We do not endorse, sponsor or approve any such user generated content or any content available on any linked website. We expressly disclaim all liability for any Content transmitted through the Application, or otherwise transmitted to any User by any other means, or by any person, including your reliance on such Content.
2.3. You acknowledge and agree that the Application may not operate on a continuous basis and may be unavailable from time to time (including for maintenance purposes).
2.4. You must not directly or indirectly: (a) use the Application to create any service, software or documentation that performs substantially the same functionality as the Application; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Application; or (c) encumber, sublicense, transfer, distribute, rent or lease the Application in favour of a third party; (d) adapt, combine, create derivative works of or otherwise modify any Application.
3. User Conduct
3.1. By accepting these Terms, you are representing that you: (a) have the capacity to accept these Terms; (b) will provide, or have provided, and will maintain and promptly update the Membership Data and ensure that information provided is accurate, current and complete.
3.2. You must not use the Application for any illegal, immoral or unethical purpose.
3.3. You must not knowingly directly or indirectly: (a) interfere or attempt to interfere with the proper working of the Application or any activities conducted on the Application; (b) bypass any privacy settings or measures we may use to prevent or restrict access to the Application; or (c) run mail list, Listserv, any form of auto-responder or “spam” on the Application.
3.4. You must not use the Application for the purpose of transmitting any Content that: (a) is inaccurate, harmful, obscene, pornographic, defamatory, racist, sexist, threatening, violent, offensive, abusive, vulgar, profane, indecent, unlawful, harassing, or otherwise objectionable to us or other Users of the Application, including any Content which is likely to offend, insult or humiliate others based on race, religion, ethnicity, gender, age, sexual orientation and/or any physical or mental disability; (b) exploits another person in any manner; (c) includes unauthorised disclosure of personal information; (d) advertises services for non-individuals or for any other reason which is not aligned to the purposes for which the Application is intended; (e) violates or infringes anyone's intellectual property rights; or (f) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
3.5. You are solely responsible for the Content and all activities that occur while using the Application.
3.6. If you misuse the Application in contravention of these Terms, we may, at our sole discretion, restrict, suspend or disable your access to the Application.
5.1. If an Application requires payment of a fee, the purchase price will be disclosed to you prior to your access of the Application.
5.2. All fees are quoted in US Dollars and are exclusive of tax. We reserve the right to change the fees for any chargeable service or feature on the Application at any time and will provide Notice in accordance with these Terms where the price is varied.
5.3. If you purchase an Application, you will be directed to make payment of the purchase price prior to the installation of the Application.
5.4. If your payment for an Application is dishonoured (i.e. your credit card is declined or expired) you will be notified of your unsuccessful payment and you will be directed to make payment within seven (7) days of the notification. If you fail to make payment within seven (7) days, we may take any action reasonable to recover the purchase price of the Application or disable your access to the Application.
6. Confidential Information
6.1. You agree to keep the Confidential Information confidential and only use or disclose such information for the purposes as authorised by the owner of the Confidential Information.
6.2. The obligations of confidentiality in clause 6.1 will not apply to information which: (a) is generally available in the public domain except where such availability is as a result of a breach of these Terms; (b) was known prior to the disclosure of the information by you; or (c) is required to be disclosed by an applicable law or court order.
7. Intellectual Property Rights
7.1. Nothing in these Terms constitutes a transfer of any Intellectual Property rights. You acknowledge and agree that, as between you and us, we own all Intellectual Property rights in the Application.
7.2. You must obtain express written permission from us if you wish to reproduce any aspect of the Application or other Intellectual Property owned by us.
8. Termination and Suspension
8.1. The Terms will continue in force until you withdraw your consent or such time that the Terms are varied or replaced, but we may terminate the Terms or the Application at any time and without prior notice at our sole discretion.
8.2. We may suspend or terminate any User from using the Application without notice at our sole discretion.
8.3. We reserve the right to change or discontinue any feature on the Application or the Application in whole or in part at any time at our sole discretion.
9. Limitation of Liability
9.1. We shall not be liable to you in respect of any losses suffered or incurred by you arising out of or in connection with your use of the Application.
9.2. You shall be liable for any loss, damage or injury to any party or parties (including to us, Third Parties and other Users) resulting from your negligent acts or omissions through your use of the Application and shall indemnify and keep us indemnified against any claim or claims made against us.
9.3. In no event shall we be liable to you or a third party for any: (a) loss or inaccuracy of or damage to data, loss or interruption of use of the Application, or cost of procuring substitute technology, goods or services; or (b) indirect, punitive, incidental, reliance, special, exemplary or consequential damages including, but not limited to, loss of business, revenue, profits and goodwill; These limitations are independent from all other provisions of this agreement and shall apply notwithstanding the failure of any remedy provided herein.
9.4. Without limitation to the foregoing, you agree that our liability, if any, arising out of any kind of legal claim or action in any way connected to your use of the Application will be limited to the total amount paid by you (if any) for any Application purchased by you.
10. Disclaimer of Warranties
10.1. You acknowledge that we make no representation or warranty: (a) that your access to the Application (including any payment platforms on the Application) will be, timely, secure, uninterrupted and/or error-free; (b) that the Application will be compatible with any feature or program associated with the Zendesk Website; (c) that any defects on the Application will be corrected; (d) that any information disclosed on the Application will be accurate, up to date, complete or useful; or (e) that the Application or the server which stores and transmits the Application to you are free from viruses or any other harmful components.
11. Assumption of Risk
11.1. You agree and understand that you assume all risks when using the Application, including without limitation any and all of the risks associated with any online or offline interactions with other Users and Third Parties and all risk for any damage to your computer system or loss of data.
12.1. You agree to indemnify, and continually indemnify, us in relation to all claims, actions, liabilities, costs, losses and expenses (including legal costs on a full indemnity basis) that we incur as a result of your use of the Application, and/or from your failure to comply with these Terms.
12.2. You will be responsible for and will indemnify us against liability for all loss, damage or injury to persons or property caused by you, or your employees or agents, and the amount of all claims, damages, costs and expenses which may be paid, suffered or incurred by us in respect of any such loss, damage or injury will be made good at your expense.
13.1. These Terms prevail in the event that anything in, or associated with the Application is inconsistent with these Terms.
13.2. If a provision of these Terms is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
13.3. These Terms and any contract to which they apply shall be governed by the laws of the Netherlands and are subject to the jurisdiction of the courts of the Netherlands.
13.4. We are not liable whatsoever to you for any direct or indirect losses and/or expense suffered by you arising out of a breach by us of these Terms, including our negligence.
13.5. Our failure to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision.
13.6. We may provide any notice required under these Terms by sending an email to each User (“Notice”).
13.7. We may amend or vary these Terms at our sole discretion by giving Notice, and the varied Terms are to take effect immediately upon Notice being given. Your continued use of the Application after any variation of these Terms will be deemed to constitute your acceptance of the varied Terms. If you do not accept the varied Terms, please discontinue your use of the Application.
13.9. These Terms are effective as and from 1 May 2019.