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terms & conditions

Welcome to VMSpark! These Terms of Service and/or the Service Agreement (the “Agreement”) collectively referred to in some cases herein as (the “Terms”) govern your use of the VMSpark website, VMSpark Client Portal, transactions between You and VMSpark and any services provided by VMSpark (the “Sites”, “Service”) to you, your company, or your affiliates, executives, officers, employees, or contractors (“You” or “Client”). VMSpark may change the Terms of Service from time to time. Your access to the Sites or Service in any way is evidence of your acceptance of the Terms and the enforcement of said Terms. If you do not agree to these terms and conditions, you may not use the Sites or Service. At the outset of Service being provided, Client must execute the Agreement, providing basic company details and acknowledging having read, understood, and agreed to the Terms of Service. The Agreement may be executed electronically or on paper. In the absence of an executed Agreement, the Terms of Service stand. VMSpark reserves the right, in its sole discretion, to change, modify, or otherwise alter these Terms at any time effective upon posting of the modified Terms on the Sites and/or notifying Client(s) by email or other electronic, phone, or in person method of communication. Please review the Terms periodically. Your continued use of the Sites or any materials or services accessible through it, after such posting or notification means you accept the modifications. The use by you of any content or services accessible through the Sites may be subject to your acceptance of separate agreements with VMSpark or third parties.

Statements

Client is engaged in the business of providing staffing services;

VMSpark is engaged in the business of organizing, compiling and transforming data into a single, standardized, and easy to use format; and

Client desires to engage VMSpark, and VMSpark desires to render services for Client, as an independent contractor under the terms and conditions of the Terms.

In consideration of the foregoing and of the mutual covenants and promises made herein and for other valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties agree as follows:

1. Engagement.

1.1 Client hereby engages VMSpark to render the services described in the service description/pricing area of the service agreement and incorporated by reference (the “Services”). VMSpark agrees to provide the Services subject to the terms and conditions of the Terms.

l.2 Both parties acknowledge VMSpark’s status as an independent contractor under the Terms; therefore, Client shall have no duty, responsibility, or obligation: (a) to withhold and/or pay FICA taxes or Federal, State or local income and other taxes; (b) to comply with or contribute to State Worker’s Compensation and/or State or Federal Unemployment Compensation funds or to comply with any other laws relating to VMSpark’s employees; and/or (c) to provide VMSpark with any fringe or other benefits available to Client’s employees.

Client agrees to grant VMSpark access to all electronically stored data and systems needed to perform the Services. Such access will be granted either through Client’s own login information or a separate login or via other established electronic data access including but not limited emails or API connections. Client acknowledges and agrees that it is responsible for maintaining the security of its data, as well as complying with any user agreements with any third parties, including any “source” software websites, as well as complying with any applicable rules, regulations, or laws. Client warrants and represents that Client has full and complete authorization and power to sign the Terms and the Agreement in the capacity herein stated, and that the Terms are a valid, binding, and enforceable obligation and does not violate any law, rule, regulation, contract or agreement otherwise enforceable. In no event shall VMSpark be liable to Client or any third party for any special, indirect, incidental, actual, punitive or consequential damages or losses (including, without limitation, for breach of contract, warranty, negligence or strict liability) related to anything arising out of or in connection with the Terms, even if VMSpark has been previously advised of the possibility of their occurrence. VMSpark reserves the right, as reasonably necessary or convenient for VMSpark’s own purposes or to improve the quality of the Services, to change access procedures, types of equipment utilized in the VMSpark computing environment, system interfaces, operating and other system and network software, utilities, and database software, and to implement standard enhancements to the Services. Client acknowledges and agrees that in order for VMSpark to perform the maintenance services set forth herein, VMSpark or its hosting provider may be required from time to time to interrupt Client’s ability to access the Services. Insofar as practicable, VMSpark shall confine such interruptions to scheduled interruptions and may give Client twenty-four (24) hours notice of a scheduled interruption but is not required to do so.

1.3 License and Sites Access. VMSpark may grant Client a limited license to access to Sites including but not limited to an interactive portal where client can login to use functionalities provided. You may not download (other than page caching), or modify any portion of it outside of the intended interactive functionalities. The license to use the Sites does not include any resale use of the Sites or its contents; or any derivative use of this Sites or its contents; or any use of data mining, robots or similar data gathering and extraction tools or processes. VMSpark will provide the only acceptable methods of using/extracting your data as intended via internal Sites usage, arranged data delivery via email, or authorized API access. You agree not to store in any form, distribute, transmit, display, reproduce, modify, create derivative works from, sell or otherwise exploit any of the content on the Sites for any commercial purpose other than the intended use of Clients own data that is being handled for purpose of the Services. By using the Sites, you warrant to VMSpark that you will not use the Sites, or any of the content obtained from the Sites, for any purpose that is unlawful or prohibited by these Terms. VMSpark does not grant any license or other authorization to any user of its trademarks, registered trademarks, service marks, or other copyrightable material or other intellectual property, by placing them on this Website. If you violate any of these Terms, your permission to use the Sites automatically terminates.

In consideration of Client’s use of the Sites and Service, Client agrees to: (A) provide true, accurate, current and complete information about yourself as prompted by the registration form, if applicable, and (B) to maintain and update this information to keep it true, accurate, current and complete. If any information provided by you is misleading, untrue, inaccurate, not current or incomplete, VMSpark has the right to terminate your account and refuse any and all current or future use of the Sites while maintaining the right to collect obligated Fees (see section 3) for the committed service Term. You agree not to resell or transfer the Sites or use of or access to the Sites except where authorized to add Users under Client’s account.

1.4 Feedback and best use cases. VMSpark may provide you with a mechanism to provide feedback, suggestions and ideas, if you choose, about its software and services. Best Use Cases may include but are not limited to methodologies and logic used with the VMSpark portal functionalities. (“Feedback and Best Use Cases”). You agree that VMSpark may, in its sole discretion, use the Feedback and Best Use Cases you provide to VMSpark in any way, including in future modifications of the Sites and Services and functionalities, multimedia works and/or advertising and promotional materials relating thereto. You hereby grant VMSpark a perpetual, worldwide, fully transferable, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute and display the Feedback and Best Use Cases in any manner and for any purpose.

2. Term.

The term of the Terms and the Agreement shall commence on the Effective Date and shall continue until terminated as provided herein. In the event either party desires to terminate the Agreement, notice of election to terminate shall be delivered, by email or service ticket, to the other party at the address provided below, no later than thirty (30) days from the date of the desired discontinuation of the Services. Notwithstanding anything to the contrary herein, VMSpark may, in its sole and absolute discretion, immediately terminate, change or alter the Services without further notice and for any reason, including in the event of non-payment as stated below.

3. Fees and Payment.

3.l In return for providing the Services, Client shall pay VMSpark the fees described in the service agreement (the “Fee”). Notwithstanding Client’s receipt of an invoice and/or VMSpark’s issuance of the invoice, Client has an unqualified obligation to pay the Fee on or before the due date of each month. In the event payment is not received by VMSpark by the 10th day after the due date, VMSpark may, at its discretion, immediately terminate the Services without further notice and pursue legal action to collect the Fee.

3.2 The Fee on the service agreement may be listed as per unit pricing without an exact monthly total, as Client’s service level of units may vary month to month per Client’s discretion. Emailed Notifications of updates/change of the Terms or amending the Agreement in regards to pricing/service levels from VMSpark to Client shall be considered a counterpart of the Terms as regarded to in section 7.5.

3.3 Any applicable state and/or local sales/use tax or other taxes required by law may be applied to invoices/charges.

4. Confidential Information and Intellectual Property.

4.l The term “Confidential Information” shall mean any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry, not ascertainable in the ordinary course in the relevant trade or industry and which has been or is hereafter disclosed or made available by either party (the “disclosing party”) to the other (the “receiving party”) in connection with the efforts contemplated hereunder, including (i) all trade secrets, and (ii) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto. “Trade Secrets” means information, including a formula, pattern, compilation, program device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

4.2 Client (or its licensor) will at all times retain all rights, ownership, and interest in any copyright, trademark, or other intellectual property proprietary to Client including without limitation any software, methodologies, tools, specifications, techniques, documentation or data which is utilized by VMSpark in the performance of Services and has been originated or developed by Client, its affiliates or by third parties outside of the scope of the Services, or which has been purchased by or licensed to Client, together with any and all additions, enhancements, improvements or other modifications thereto whether or not made during the performance of the Services (collectively, “Client Intellectual Property”). Nothing contained in the Terms or otherwise shall be construed to grant to VMSpark any right, title, license or other interest in, to or under any Client Intellectual Property (whether by estoppel, implication or otherwise).

4.3 VMSpark (or its licensor) will at all times retain all rights, ownership, and interest in any copyright, trademark, or other intellectual property proprietary to VMSpark including without limitation any software, methodologies, tools, specifications, techniques, documentation or data which is utilized by VMSpark in the performance of Services and has been originated or developed by VMSpark, its affiliates or by third Parties outside of the scope of the Services, or which has been purchased by or licensed to VMSpark, together with any and all additions, enhancements, improvements or other modifications thereto whether or not made during the performance of the Services (collectively, “VMSpark Intellectual Property”). Nothing contained in the Terms or otherwise shall be construed to grant to Client any right, title, license or other interest in, to or under any VMSpark Intellectual Property.

4.4 Client and VMSpark shall each (i) hold the Confidential Information of the other in trust and confidence and avoid the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the other party for any purpose whatsoever except as expressly contemplated under the Terms. Client acknowledges and agrees that VMSpark is authorized to disclose Client’s Confidential Information to VMSpark’s members, managers, developers, employees, independent contractor or other necessary agents (collectively “VMSpark’s Agents”), and that VMSpark’s Agents will be bound to a confidentiality agreement with terms no less restrictive than those set forth herein.

4.4 The obligations of either party under this Section 4.1 will not apply to information or materials that the receiving party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party, (iii) has been received or may be received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the receiving party, (iv) is independently developed by the receiving party without reference to the Confidential Information of the other party, or (v) is required to be disclosed by law or order of a court of competent jurisdiction or regulatory authority, provided that the receiving party shall furnish prompt written notice of such required disclosure and reasonably cooperate with the disclosing party, at the disclosing party’s cost and expense, in any effort made by the disclosing party to seek a protective order or other appropriate protection of its Confidential Information and any disclosure under this clause (v) is limited to the extent of the legal requirement.

5. Limitation of Liability and Remedies.

5.1 Exclusion of Damages. Except as provided hereunder, in no event shall either party be liable to the other party or any other person or entity for any special, exemplary, indirect, incidental, consequential or punitive damages of any kind or nature whatsoever including, without limitation, lost revenues, profits, savings or business, other than amounts due and payable to either party or loss of records or data, whether in an action based on contract, warranty, strict liability, tort (including, without limitation, general negligence, but excluding gross negligence or willful misconduct) or otherwise, even if such party has been informed in advance of the possibility of such damages or such damages could have been reasonably foreseen by such party.

5.2 Total Liability. Except as provided hereunder, in no event shall the liability of either party arising out of or in connection with the Terms or the Services exceed, in the aggregate, the total Fee paid by Client to VMSpark in the last twelve (12) months for the particular Services to which such liability relates, whether such liability is based on an action in contract, warranty, strict liability or tort (including, without limitation, general negligence, but excluding gross negligence or gross negligence or willful misconduct) or otherwise.

5.3 Disclaimer of Warranties. VMSpark PROVIDES ANY AND ALL SITES AND SERVICES ON AN “AS IS” BASIS AND GRANTS NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. VMSpark SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VMSpark AND ITS LICENSORS DO NOT WARRANT THAT THE SITES AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE DATA OR OTHER RESULTS GENERATED BY THE SERVICES WILL BE ACCURATE OR COMPLETE. VMSpark IS NOT LIABLE OR RESPONSIBLE IN ANY WAY FOR ANY CONTENT/DATA POSTED ON OR LINKED FROM THE SITES, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN CONTENT/DATA, OR FOR ANY LOSSES OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF OR RELIANCE ON ANY CONTENT/DATA. VMSPARK OFFERS SUPPLEMENTARY DATA AND/OR SUGGESTED FACILITIES INFORMATION AS A CONVENIENCE TO CLIENT, HOWEVER VMSpark DOES NOT WARRANT THAT ANY OFFERED SUPPLEMENTARY AND/OR SUGGESTED FACILITIES DATA IS VALID OR UP TO DATE. IT IS THE RESPONSIBILITY OF CLIENT TO EVALUATE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ALL DATA AND RESULTS GENERATED THROUGH THE USE OF THE SERVICES.

5.4 Indemnity. Client agrees to indemnify, defend and hold harmless VMSpark and its affiliates, parent companies, subsidiaries, successors in interest and permitted assigns and each of their respective officers, directors, employees, agents, representatives, subcontractors, successors in interest and permitted assigns from liabilities, losses, award of damages, expenses, including without limitation, penalties, exemplary damages, punitive damages, interest, reasonable attorney’s fees (including in-house counsel fees) and costs including expert fees (whether testifying or not) for any cause of action, action or allegations of a cause of action or claims by any third party, governmental entity (including without limitation governmental inquires), person (which shall be deemed to include corporations, associations, partnerships joint ventures, sole proprietorships), or individual, which arise out of or relate to the Terms or the Services performed by or on behalf of Client in connection with the Terms (“Claim(s)”). VMSpark shall give prompt notice to Client of any Claim(s). However, failure by VMSpark to tender such Claim(s) shall not be deemed a waiver of Client’s obligations hereunder. Client shall not, without the written consent of VMSpark, consent to the entry of a ‘consent’ judgment or enter into any settlement with respect to any Claim(s) which either (a) does not include an unconditional release of VMSpark from all the Claims asserted or which could have been asserted and from all liabilities with respect to Claims, (b) makes any admission of wrong doing by VMSpark or (c) otherwise adversely affects the rights of VMSpark.

6. Jurisdiction and Venue.

6.1 The laws of the State of Iowa shall govern all disputes, controversies and litigation arising hereunder or related hereto, notwithstanding any conflict-of-law provisions to the contrary.

6.2 For all disputes, controversies and litigation between the parties, Client and VMSpark hereby (jointly and individually) submit to the personal jurisdiction of the state and federal courts located in Carroll County, Iowa. The Parties expressly waive any objections to such jurisdiction and venue and irrevocably consent and submit to the personal and subject matter jurisdiction of such courts in any action or proceeding. However, the Terms and/or any court order or judgment arising out of or related hereto shall be enforceable in every state and worldwide.

7. Miscellaneous.

7.1 The Terms constitute the entire agreement between Client and VMSpark. Client and VMSpark acknowledge that there are no oral or other written understandings, arrangements and/or agreements between the parties relating to the subject matter of these Terms.

7.2 The signer of the Agreement guarantees and warrants that they are authorized to execute the Terms for, and to bind, their principals and that the Terms and all provisions herein shall be binding upon and inure to the benefit of the parties and their heirs, legal representatives, successors, and assigns.

7.3 If any proceeding or action shall be brought to recover any amount under the Terms, or for or on account of any breach hereof, or to enforce or interpret any of the terms, covenants, or conditions of the Terms, the prevailing party shall be entitled to recover from the other party, as part of the prevailing party’s costs, reasonable attorneys’ fees, the amount of which shall be fixed by the court, and shall be made a part of any award or judgment rendered (regardless of whether or not the matter is contested).

7.4 The language in all parts of the Terms will be construed as a whole according to its fair meaning and not strictly for or against any Party. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of the Terms or any amendments hereto.

7.5 The parties hereto further stipulate and agree that the Terms may be executed in any number of counterparts, all the counterparts shall be deemed to constitute one instrument, and each counterpart shall be deemed an original. Facsimile signatures or electronic signatures shall serve as originals.

7.6 If any provision of the Terms is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect and the invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.

7.7 No refusal or neglect of Client or VMSpark to exercise any right hereunder or to enforce compliance with the terms of the Terms shall constitute a waiver of any provision herein with respect to any subsequent breach, actions or omissions hereunder, unless such waiver is expressed in writing by the waiving party.

7.8 The Terms may be amended, altered or changed only through a written document signed by VMSpark and Client or by VMSpark only via term set forth in section 3. Those sections of the Terms, that should logically survive termination or expiration of the Terms, shall survive termination or expiration of the Terms.