set out the terms under which GeoSpark, Inc., henceforth referred to as "GeoSpark",
agrees to license its proprietary technology and SDK to the person or entity reading and agreeing to these Terms (the "Licensee"
). Licensee signifies its agreement to these Terms by clicking through the acceptance mechanism provided by GeoSpark, or by using the Services (as defined below) in any way. Please review these terms carefully, because they form a binding contract between you and GeoSpark. You represent and warrant that you are of legal age to form a binding contract. If you're agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity's behalf and bind them to these Terms (in which case, the references to "you", "your", and "Licensee" in these Terms, except for in this sentence, refer to that organization or entity).
To the extent that we are a Processor of Personal Data that is subject to certain Data Protection Laws (as defined in the DPA), the EU Data Processing Addendum ("DPA"
) located at https://geospark.co/dpa is hereby incorporated into the Agreement.
1. License to the Services
Subject to Licensee's compliance with these Terms, including without limitation the restrictions in Section 2, GeoSpark grants Licensee a limited, worldwide, revocable, non-transferable, non-sublicensable, non-exclusive license to use GeoSpark's software development kit ("SDK"
) and GeoSpark's APIs and web services made generally available by GeoSpark through the Website without charge (collectively, the SDK and such other APIs and web services are referred to as the Services
") within Licensee's mobile applications and websites (collectively the "Licensee Properties"
) solely for Licensee's internal business use in order to collect, analyze, and act on location data collected and generated by the Licensee Properties and/or the Services.
2. Restrictions on Licensee's Use of the Services
Licensee agrees that the license set forth in Section 1 is subject to the following conditions:
a. Absent express written consent from GeoSpark, Licensee will not use the Services in connection with any Licensee Properties that constitute or promote illegal gambling, adult media (i.e., pornography), pirated content, tobacco products (including without limitation e-cigarettes), firearms or ammunition, or any other product that is illegal in the jurisdiction in or into which it is sold or promoted;
b. Licensee will only use the Services in connection with Licensee Properties that it owns and operates, and shall not sell, transfer, license, sublicense, give, rent, loan, lease, or otherwise make the Services or their components available to any third party without GeoSpark's prior express written consent;
c. Licensee shall not (i) alter, hide, obscure, or remove any copyright, trademark, or other intellectual property rights notice contained in the Services; (ii) reverse engineer, decompile, disassemble, or otherwise translate or derive the source code for the Services, or attempt to do so; (iii) use the Services to create any software or service containing any malicious or harmful code; (iv) use the Services to damage, detrimentally interfere with, surreptitiously intercept, or misappropriate any system or data; (v) use the Services in violation of any applicable law or regulation; or (vi) use the Services in any manner that is harmful, fraudulent, deceptive, threatening, harassing, defamatory, or otherwise objectionable;
d. Licensee acknowledges and agrees that GeoSpark may change the form, features, components, or nature of the Services at any time in GeoSpark's sole discretion without advance notice to Licensee, and that future versions of the Services may no longer be compatible with any given Licensee Property. Licensee acknowledges and agrees that GeoSpark may stop (permanently or temporarily) providing the Services (or any features within the Services) to Licensee at any time in GeoSpark's sole discretion without prior notice or any compensation to Licensee.
e. Nothing in these Terms permit Licensee to use any of GeoSpark's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features without GeoSpark's prior express written consent.
Any violation of any of the foregoing is grounds for immediate termination of Licensee's license and right to use the Services.
3. Term and Termination
These Terms shall commence upon the earlier of Licensee's acceptance of these Terms or Licensee's use of the Services, and shall remain in effect until terminated as provided herein. Either party may terminate these Terms for any reason or for no reason at any time upon five (5) days' prior written notice to the other party. Notwithstanding the foregoing, GeoSpark may terminate these Terms immediately upon notice to Licensee in the event that GeoSpark believes Licensee has breached any term of these Terms. Upon termination of these Terms, all licenses granted to Licensee hereunder shall immediately terminate and Licensee shall immediately cease all use of the Services. Licensee understands, however, that the Services may continue to collect data through the Licensee Properties on which the Services are already integrated, and that such data collection (and GeoSpark's use of such data as permitted herein), may continue until the applicable End Users have: (a) removed or disabled the Services (or any Licensee Property that integrates the Services) or any Licensee Property that integrates the Services from their respective devices; or (b) limited such data collection through applicable device settings in a manner that is communicated to GeoSpark.
4. Compliance with COPPA
The Children's Online Privacy Protection Act ("COPPA"
) requires that online service providers obtain parental consent before they knowingly collect PII (personally identifiable information) online from children who are under 13. GeoSpark does not knowingly collect or solicit PII from children under 13. Licensee shall not use the Services in conjunction with a Licensee Property that is directed to children under the age of 13. Licensee shall not use the Services to knowingly send to GeoSpark any personal information (including without limitation device identifiers, IP addresses, or precise location data) that has been collected from children under the age of 13. If GeoSpark learns it has collected personal information from a child under 13, GeoSpark will delete that information as quickly as possible. If you believe that a child under 13 may have provided GeoSpark personal information, please contact us at firstname.lastname@example.org
5. Use and Ownership of SDK Data
) from end users of the Licensee Properties, henceforth referred to as "End Users”
. Without limiting the foregoing, Licensee shall not use SDK Information for any of the following purposes: (a) employment eligibility; (b) credit eligibility; (c) health card eligibility; (d) insurance eligibility, underwriting, or pricing; or (e) any other use in violation of applicable laws and regulations.
6. Privacy Compliance
The parties agree to comply with all applicable privacy laws, and each party agrees to perform the following obligations, respectively:
b. Where Licensee provides any data (e.g., Apple IDFAs, Android advertising IDs, or location data) to GeoSpark in any manner other than through the Services, including without limitation through an API or an SDK proprietary to Licensee, Licensee shall be solely responsible for ensuring ensure that any such collection and transfer of data is done in full compliance with applicable End User's stated preferences, including without limitation device settings to "Limit Ad Tracking" and "Opt Out of Ads Personalization."
7. Intellectual Property Rights
Each party acknowledges and agrees that no intellectual property rights (including without limitation any rights based in trademark, copyright, patent or trade secret law) are or are intended to be transferred from one party to the other through these Terms. Neither party shall receive any ownership interest in the other's intellectual property. The Services (and all intellectual property rights therein) are and shall remain the sole property of GeoSpark, and the Licensee Properties (and all intellectual property rights therein) are and shall remain the sole property of Licensee. Without limiting the foregoing, GeoSpark may use the name and logo of Licensee solely in order to designate Licensee as a customer for marketing purposes (e.g., on GeoSpark’s website or marketing materials).
8. Warranty Disclaimer
THE SERVICES ARE PROVIDED TO LICENSEE ON AN "AS-IS" AND "AS AVAILABLE" BASIS. GeoSpark DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR THE RESULTS OBTAINED FROM THEIR USE SHALL MEET THE REQUIREMENTS OR BUSINESS NEEDS OF LICENSEE OR ITS CUSTOMERS OR THAT THE SERVICES' OPERATION SHALL BE UNINTERRUPTED OR ERROR-FREE. GeoSpark AND ITS LICENSORS, AFFILIATES, AND SUPPLIERS MAKE NO REPRESENTATIONS AND WARRANTIES UNDER THESE TERMS, AND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
9. Limitations of Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL GeoSpark (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO LICENSEE OR TO ANY OTHER PERSON FOR: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION; OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO GeoSpark IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND GeoSpark'S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
10. Force Majeure
Except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including governmental action or acts of terrorism, earthquake or other natural calamities, labor conditions, and power failures. Each party shall promptly notify the other party upon becoming aware that any such event has occurred or is likely to occur and shall use its best efforts to minimize any resulting delay in or interference with the performance of its obligations under these Terms.
Licensee agrees to indemnify, defend, and hold GeoSpark and its affiliates and their respective directors, officers, employees, and agents (collectively, "Indemnified GeoSpark Persons"
), GeoSpark will attempt to provide notice of the Claim to the contact information GeoSpark has for Licensee's account (provided that failure to deliver such notice shall not eliminate or reduce Licensee's indemnification obligations hereunder).
a. Governing Law.
These Terms shall be governed by the laws of the State of New York without regard to choice of law principles.
Any controversy or claim arising out of or in any way connected with these Terms shall be finally settled in New York, New York, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, New York County, New York, or the Southern District of New York. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND GeoSpark ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Licensee may not assign or delegate any rights or obligations under these Terms to any third party without GeoSpark's prior written consent. Notwithstanding the foregoing, Licensee may assign these Terms (along with all rights and obligations under it) to any of its corporate affiliates, parents or subsidiaries, or in conjunction with a merger or sale or transfer of all or substantially all of its assets or business associated with performance under these Terms, provided that Licensee shall provide GeoSpark timely notice of such assignment. GeoSpark may freely assign these Terms and its rights and obligations hereunder without consent.
d. Relationship of the Parties.
The parties agree they are independent contractors to each other in performing their respective obligations hereunder. Nothing in these Terms or in the working relationship being established and developed hereunder shall be deemed, nor shall it cause, the parties to be treated as partners, employee/employer, joint venturers, or otherwise as joint associates for profit.
e. No Waiver.
Except as otherwise provided herein, the failure of either party to enforce at any time the provisions of these Terms shall not be constituted to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter.
If any provision of these Terms is held invalid or unenforceable at law, such provision shall be deemed stricken from these Terms and the remainder of these Terms shall continue in effect and be valid and enforceable to the fullest extent permitted by applicable law.
g. Entire Agreement.
are the entire agreement between the parties and supersede any and all prior understandings, agreements, or representations by or between the parties, written or oral, which may have related to the subject matter hereof. There are no third party beneficiaries to these Terms.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation Licensee has to pay or indemnify GeoSpark, any limitations on GeoSpark's liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between the parties.
GeoSpark may make changes to these Terms in its sole discretion from time to time. When we do, we will revise the "last updated" date given below. It is your responsibility to review these Terms frequently and to remain informed of any changes. The then-current version of these Terms will supersede all earlier versions. You agree that your continued use of the Services after such changes have been published to will constitute your acceptance of the revised Terms.