1. Scope.

These terms and conditions (“this agreement” or “these terms”) apply to the design, development, delivery, deployment, optimization, hardening, and hosting of any digital infrastructure, script frameworks, networks, or websites (the “Services” and the resulting systems, the “Website”) by Sparkwave IT Service (“Sparkwave”) for You (“Customer”) as identified on any order, quote, or intake form agreed to by both Sparkwave and Customer that incorporates these terms and conditions by reference (an “Order”).

2. Fees.

Sparkwave will invoice Customer at the start of each calendar month for the fees due with respect to Sparkwave’s performance of the Services, or as otherwise outlined in an applicable Order. All fees on the invoice are exclusive of any federal, state, or local taxes due, which shall be the sole responsibility of the Customer. The Order may identify certain third-party software products, applications, application programming interfaces (APIs), or scripts used by Sparkwave in providing the Services or otherwise necessary for Customer to access, use, and enjoy the Website or Services (“Third-Party Product”). Unless the Order expressly identifies discrete fees for Customer to use, access, or enjoy a Third-Party Product, any fees related to such use, access, or enjoyment are considered part of the total fees identified in the Order.

The Customer will pay such fees within 30 days of receipt of an invoice, unless Customer provides Sparkwave with written notice before the due date detailing a good faith dispute about a discrete portion of the fees on the invoice. Customer acknowledges that by using the Website, server configurations, or technical optimizations for any revenue-generating or active commercial purpose, it accepts the Services as fully delivered.

In instances where the Customer’s optimized Website or Service pipeline does not launch or deploy within 90 days of the effective date of the Order due to Customer delays, Sparkwave reserves the right to commence billing for monthly ongoing Services on the first day of the month following this 90-day period. This billing initiation is subject to any good faith disputes regarding the structural reasons for the delayed launch.

3. Customer’s Cooperation.

Customer agrees to fully and timely cooperate with Sparkwave in its performance of the Services. As part of its obligation to cooperate with Sparkwave, Customer will ensure that it: (a) provides all administrative access tokens, DNS management configurations, information, data, and documentation (each item considered “Content”) reasonably requested by Sparkwave to provide the Services; and (b) ensures that all Content provided to Sparkwave is entirely accurate and complete. Customer must also notify Sparkwave in writing of any specific “Heightened Security Requirements” (as defined below) that are applicable to Customer’s business, industry, the Services, or the Website.

For the purposes of these terms, “Heightened Security Requirements” means any regulatory safeguard, control, audit trail, or process required by any laws, regulations, codes, guidance from regulatory and advisory bodies (whether mandatory or not), international and national standards, and sanctions, which are applicable to the Customer relating to security of network and information systems, consumer financial records, and security breach and incident reporting requirements, which may include the Gramm-Leach-Bliley Act (GLBA), FTC Safeguards Rule, HIPAA, Cybersecurity Directive ((EU) 2016/1148), or similar frameworks, all as amended or updated from time to time.

As between the parties, Customer shall have sole control and ownership of all Content. Customer shall ensure that it has full legal authority to provide Content to Sparkwave, and to instruct or allow Sparkwave to collect, access, use, disclose, communicate, transmit, reproduce, store, modify, display, and otherwise process (collectively, “Process”) Content as permitted by this agreement. Without limiting the foregoing, Customer shall ensure that all Content is obtained in compliance with applicable laws and if any Content is obtained from third parties, in compliance with applicable third-party privacy policies, terms of use, and other agreements between Customer and such third parties.

To the extent Content contains or constitutes personal information, Customer shall:

• (i) provide all notices to relevant individuals (collectively, “Relevant Individuals”), and obtain all consents from Relevant Individuals, as needed for Sparkwave to perform its obligations and exercise its rights hereunder, which shall each be in a form that complies with all applicable laws as well as findings, interpretation bulletins, guidance documents, or fact sheets issued by applicable regulatory authorities;
• (ii) without limiting (i), Customer shall ensure that Relevant Individuals are notified if their information is transferred, stored, or processed via secure cloud environments;
• (iii) retain appropriate records of the notices and consents described in (i) and (ii), and promptly provide evidence of such notices and consents to Sparkwave upon Sparkwave’s request, including as needed for Sparkwave to respond to any inquiry or investigation by any relevant governmental authority;
• (iv) provide Sparkwave with only the minimum personal information required by it to perform its technical obligations hereunder; and
• (v) take reasonable steps to ensure the continuous accuracy of any and all personal information provided to Sparkwave.

For the purpose of this agreement, “personal information” means information about an identifiable individual, including where there is a serious possibility that an individual could be identified through the use of that information, alone or in combination with other data.

4. Warranties and Disclaimers.

Each party represents and warrants to the other that it has full power and authority to enter into and perform this agreement. Sparkwave further warrants that the Services will be performed with reasonable care, professional skill, and in general alignment with prevailing industry security practices.

EXCEPT AS EXPRESSLY STATED HEREIN, SPARKWAVE DOES NOT WARRANT THAT THE CUSTOMER’S USE OF THE WEBSITE OR NETWORKS WILL BE COMPLETELY UNINTERRUPTED OR ERROR-FREE, THAT THE SYSTEMS WILL BE COMPLETELY IMMUNE FROM EVOLVING CYBERSECURITY THREATS OR VULNERABILITIES, OR THAT EXCEPT AS EXPRESSLY STATED IN A WRITTEN ORDER, THE SERVICES, SCRIPTS, OR WEBSITE WILL COMPLY WITH ANY SPECIFIC HEIGHTENED CYBERSECURITY OR REGULATORY REQUIREMENTS. ALL SERVICES ARE OTHERWISE PROVIDED ON AN “AS IS” BASIS.

5. Limitation of Liability.

THESE TERMS SET OUT THE FULL EXTENT OF SPARKWAVE’S OBLIGATIONS AND LIABILITIES IN RESPECT OF THE SUPPLY OF THE SERVICES. ALL CONDITIONS, WARRANTIES, REPRESENTATIONS, OR OTHER TERMS CONCERNING THE SERVICES OR THE WEBSITE WHICH MIGHT OTHERWISE BE IMPLIED IN THIS AGREEMENT OR ANY COLLATERAL CONTRACT (WHETHER BY STATUTE OR OTHERWISE) ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.

NOTHING IN THIS AGREEMENT SHALL OPERATE TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY ITS DIRECT NEGLIGENCE; (B) FRAUD; OR (C) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

NEITHER PARTY SHALL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY COLLATERAL CONTRACT FOR ANY LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS; LOSS OF CONTRACTS; LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA; OR ANY INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL LOSS; IN EACH CASE HOWSOEVER ARISING, WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES AND WHETHER ARISING IN OR CAUSED BY BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, PHISHING INTERCEPTION, FORM-JACKING, DATA EXFILTRATION, OR OTHERWISE.

SPARKWAVE’S AGGREGATE COMBINED LIABILITY IN RESPECT OF CLAIMS BASED ON EVENTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY COLLATERAL CONTRACT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN NO WAY EXCEED FIFTY PERCENT (50%) OF THE TOTAL CHARGES ACTUALLY PAID BY THE CUSTOMER TO SPARKWAVE UNDER THIS AGREEMENT FOR THE SPECIFIC APPLICABLE SERVICE ELEMENT IN THAT INDIVIDUAL CONTRACT YEAR.

6. Intellectual Property Rights.

All “Intellectual Property Rights” (as defined below) in the Website, technical toolkits, scripts, monitoring configurations, and deployed optimizations, excluding the raw Content owned by the Customer, arising in connection with these terms shall remain the exclusive property of Sparkwave. Sparkwave hereby grants the Customer a limited, non-exclusive, non-transferable license to such Intellectual Property Rights solely for the interior purpose of accessing, using, and enjoying the operational benefits of the Website and Services.

For the purposes of these terms, “Intellectual Property Rights” means patents, utility models, industrial designs, rights to inventions, copyright and neighboring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

7. Indemnification.

The Customer will indemnify, defend, and hold harmless Sparkwave against all damages, losses, regulatory penalties, court rewards, and legal expenses arising as a result of any third-party action or claim alleging that the Customer’s infrastructure, network access, or provided Content infringes, misappropriates, or violates the rights (including Intellectual Property Rights and rights to privacy) of a third party or constitutes “Inappropriate Content” (as defined below).

Sparkwave will indemnify the Customer against direct damages, losses, and expenses arising as a result of any action or claim alleging that Sparkwave’s proprietary standalone toolkit code directly infringes any valid Intellectual Property Rights of a third party, other than an action or claim arising out of Sparkwave’s compliance with any designs, specific instructions, access constraints, or infrastructure specifications of the Customer.

The indemnities in this paragraph are subject to the following explicit conditions:

• (a) the indemnified party promptly notifies the indemnifier in writing of the specific claim;
• (b) the indemnified party makes no admissions, legal concessions, or settlements without the indemnifier’s prior written consent;
• (c) the indemnified party gives the indemnifier all information and technical assistance that the indemnifier may reasonably require; and
• (d) the indemnified party allows the indemnifier complete administrative control over the litigation, defense, and settlement of any such action or claim.

8. Sparkwave’s Right to Remove Content.

Sparkwave reserves the absolute right to remove or disable Content from the platform, hosting space, or input fields where it reasonably suspects or determines such Content is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous, introduces malware payloads, or otherwise violates any applicable local, state, or federal laws (“Inappropriate Content”). Sparkwave shall notify the Customer promptly if it becomes aware of any allegation that any Content on the Website or storage environment may constitute Inappropriate Content.

9. Sparkwave’s Right of Attribution.

Sparkwave may include a discreet statement or hyperlink on the pages of the Website or application footer that attributes the design, technical security alignment, or optimization of the environment to Sparkwave (e.g., “Optimized by Sparkwave IT” or “Security Perimeter by Sparkwave IT”) and may also include a standard copyright notice indicating that Sparkwave owns the copyright to the respective layout scripts and proprietary service tools.

10. Term.

These terms shall formally commence on the date the initial Order is agreed to in writing or executed electronically by both parties, and shall continue in continuous effect unless terminated earlier in strict accordance with these terms.

11. Termination.

Without affecting any other right or remedy available to it under equity or law, either party may terminate this agreement or an ongoing recurring service engagement by providing the other party with clear written notice no less than thirty (30) days prior to the intended effective date of the termination.

11.1. Early Termination by Customer.

In the event of an early contract termination initiated by the Customer within the first 30 days following their deployment launch date (defined as the first partial day that their optimized Website or Service profile goes live into production), the Customer shall be legally obligated to pay the prorated amount for the exact duration the Service was active, plus the full prorated service amount for the following calendar month due to the mandatory 30-day notice requirement, in addition to an early termination administrative fee equivalent to exactly two (2) months of standard baseline Service fees.

11.2. Termination After Receipt of Promotional Credits or Discounts.

Should the Customer terminate this agreement during operational periods when promotional technical credits, onboarding waivers, or temporary engineering discounts are active, or within 30 days of such promotional credits lapsing, the Customer is required to pay 50% of the total cumulative value of all credits and discounts received upon the date of Termination.

11.3. Effect of Termination.

On termination of this agreement by either party for any reason:

• (a) all limited licenses granted by Sparkwave under these terms to use proprietary security modules, analytics script interceptors, or templates shall terminate immediately;
• (b) Motive or the current software vendor platform boundaries notwithstanding, Sparkwave shall promptly return all raw Customer data and provided infrastructure Content to the Customer; and
• (c) all provisions of these terms and all executory Orders shall cease to have effect, except that any provision which can reasonably be inferred as continuing by its nature or is expressly stated to continue (including Section 5 Limitation of Liability, Section 7 Indemnification, and Section 13 Confidentiality) shall continue in full force and effect indefinitely.

12. Force Majeure.

Neither party shall be in breach of these terms or otherwise liable for any failure or delay in the performance of its operational obligations if such delay or failure results from events, unexpected circumstances, or causes completely beyond its reasonable control. These events include, without limitation, any industrial strike or labor dispute affecting any third party, telecommunications carrier outages, major internet routing failures, state-level power grids collapsing, hostile international cyber warfare attacks, governmental regulations, fire, flood, disaster, civil riot, act of God, or war.

The time for performance of such technical obligations shall be extended accordingly. If the period of severe delay or non-performance continues uninterrupted for four (4) consecutive weeks, the party not affected by the force majeure event may terminate this agreement instantly by giving ten (10) days written notice to the affected party.

13. Confidentiality.

Each party undertakes that it shall not at any time during this agreement, and for a strict period of two (2) years after formal termination of these terms, disclose to any unauthorized third person any confidential information concerning the business, backend logic, pricing models, source assets, affairs, customers, clients, or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted explicitly in this paragraph.

Each party may disclose the other party’s confidential information:

• (a) strictly to its employees, officers, representatives, direct contractors, subcontractors, or trusted advisers who possess an absolute need to know such information for the explicit purposes of exercising the party’s legal rights or carrying out its clear obligations under or in connection with these terms; and
• (b) as may be explicitly required by mandatory federal law, a court of competent jurisdiction, or an authorized governmental or regulatory authority.

Neither party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

14. Entire Agreement.

These terms, combined with any active written Orders or approved technical proposals, constitute the entire agreement between the parties regarding this subject matter and supersede all prior discussions. Each party acknowledges that in entering into this agreement it does not rely on, and has no remedies in respect of, any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out explicitly in these written terms. Each party agrees that it shall have no legal claim for innocent or negligent misrepresentation based on any statement or promotional brief outside of these terms.

15. No Modifications.

No modification, amendment, addendum, or structural change of these terms shall be legally effective unless it is executed in writing and explicitly signed by the authorized leadership representatives of both Sparkwave and the Customer.

16. Waiver.

A waiver of any right or remedy under this agreement is only effective if given explicitly in writing by the waiving party and shall not be deemed a waiver of any subsequent right, breach, or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other remedy moving forward.

17. Governing Law and Jurisdiction.

This agreement and any dispute, litigation, or claim (including non-contractual disputes or claims) arising out of or in connection with it, its technical subject matter, commercial billing, or legal formation shall be governed by and construed strictly in accordance with the laws of the State of Indiana, without giving effect to any choice of law or conflict of law provisions.

Each party irrevocably and unconditionally agrees that the state and federal courts located within the State of Indiana shall have exclusive territorial jurisdiction to settle any dispute, lawsuit, or claim arising out of or in connection with these terms. For all matters requiring local county venue determinations or state-level filings, both parties consent to exclusive venue and choice of forum in the courts presiding over DeKalb County, Indiana (serving your Auburn headquarters).

Contact and Notices: Sparkwave IT Services

Auburn, Indiana

Engineering and Contract Support: support@sparkwaveitservice.com