We Sparkle Terms & Conditions
This End User License Agreement, including the Order Form which by this reference is incorporated herein (this “Agreement”), is a binding agreement between We Sparkle, Co. (“We Sparkle” or “Licensor”), a public benefit corporation dedicated to helping underestimated entrepreneurs start, operate, and grow their ventures via a suite of AI-powered software tools, and the person or entity identified on the Order Form as the licensee of the Software (“Licensee”).
WE SPARKLE PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND
CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CHECKING THE “SUBSCRIBE” BOX ON THE ORDER FORM YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE SPARKLE WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT ACTIVATE THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY
EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.
1. Definitions. For the purposes of this Agreement, the following terms have the following meanings:
1.1 “Authorized Users” means the following individual persons authorized to use the Software pursuant to the license granted under this Agreement: the Licensee’s employees.
1.2 “Documentation” means user manuals, technical manuals, and any other materials provided by We Sparkle, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software, including those materials that are located at https://helpcenter.wesparkle.ai/.
1.3 “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.4 “Licensee” has the meaning set forth in the preamble.
1.5 “License Fees” means the license fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.
1.6 “Licensor” has the meaning set forth in the preamble.
1.7 “Order Form” means the order form, whether created by a third party, including but not limited to Zoho Subscriptions, or We Sparkle, filled out and submitted by or on behalf of Licensee, and accepted by We Sparkle, for Licensee’s purchase of the license for the Software granted under this Agreement.
1.8 “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
1.9 “Software” means the software programs for which Licensee is purchasing a license, as expressly set forth in the Order Form, including but not limited to the Sparkle Assistant, an AI-powered tool that helps entrepreneurs save time and increase revenues by text messaging back and forth with a business’ customers to schedule appointments, answer frequently asked questions, upsell products and services, and encourage customer reviews.
1.10 “Term” has the meaning set forth in Section 10.
1.11 “Third Party” means any Person other than Licensee or We Sparkle.
1.12 “Update” has the meaning set forth in Section 6.2.
2. License Grant and Scope. Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, We Sparkle hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:
2.1 Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation.
2.2 All copies of the Documentation made by Licensee:
2.2.1 will be the exclusive property of We Sparkle;
2.2.2 will be subject to the terms and conditions of this Agreement; and
2.2.3 must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
3. Third-Party Materials. The Software may include software, content, data, or other
materials, including related documentation, that are owned by Persons other than We
Sparkle and that are provided to Licensee on licensee terms that are in addition to and/or
different from those contained in this Agreement (“Third-Party Licenses”). Licensee is
bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any
of its Authorized Users of any Third-Party License is also a breach of this Agreement.
4. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly
4.1 use (including make any copies of) the Software or Documentation beyond the
scope of the license granted under Section 2;
4.2 provide any other Person, including any subcontractor, independent contractor,
affiliate, or service provider of Licensee, with access to or use of the Software or
4.3 modify, translate, adapt, or otherwise create derivative works or improvements,
whether or not patentable, of the Software or Documentation or any part thereof;
4.4 combine the Software or any part thereof with, or incorporate the Software or any
part thereof in, any other programs;
4.5 reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or
gain access to the source code of the Software or any part thereof;
4.6 remove, delete, alter, or obscure any trademarks or any copyright, trademark,
patent, or other intellectual property or proprietary rights notices provided on or
with the Software or Documentation, including any copy thereof;
4.7 except as expressly set forth in Section 2, copy the Software or Documentation, in
whole or in part;
4.8 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise
make available the Software, or any features or functionality of the Software, to
any Third Party for any reason, whether or not over a network or on a hosted basis,
including in connection with the internet or any web hosting, wide area network
(WAN), virtual private network (VPN), virtualization, time-sharing, service
bureau, software as a service, cloud, or other technology or service;
4.9 use the Software or Documentation in violation of any law, regulation, or rule; or
4.10 use the Software or Documentation for purposes of competitive analysis of the
Software, the development of a competing software product or service, or any other
purpose that is to the We Sparkle’s commercial disadvantage.
5. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the
Software and Documentation through access thereto provided by Licensee, directly or
indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is
responsible and liable for all actions and failures to take required actions with respect to
the Software and Documentation by its Authorized Users or by any other Person to whom
Licensee or an Authorized User may provide access to or use of the Software and/or
Documentation, whether such access or use is permitted by or in violation of this
6. Maintenance and Support.
6.1 Subject to Section 6.3, the license granted hereunder entitles Licensee to the basic
software maintenance and support services described from time to time on We
Sparkle’s website located at https://helpcenter.wesparkle.ai.
6.2 Maintenance and support services will include provision of such updates, upgrades,
bug fixes, patches, and other error corrections (collectively, “Updates”) as We
Sparkle makes generally available free of charge to all licensees of the Software
then entitled to maintenance and support services. We Sparkle may develop and
provide Updates in its sole discretion, and Licensee agrees that We Sparkle has no
obligation to develop any Updates at all or for particular issues. Licensee further
agrees that all Updates will be deemed Software, and related documentation will be
deemed Documentation, all subject to all terms and conditions of this Agreement.
Licensee acknowledges that We Sparkle may provide some or all Updates via
download from a website designated by We Sparkle and that Licensee’s receipt
thereof will require an internet connection, which connection is Licensee’s sole
responsibility. We Sparkle has no obligation to provide Updates via any other
media. Maintenance and support services do not include any new version or new
release of the Software that We Sparkle may issue as a separate or new product,
and We Sparkle may determine whether any issuance qualifies as a new version,
new release, or Update in its sole discretion.
6.3 We Sparkle has no obligation to provide maintenance and support services,
including Updates, if Licensee is in breach under this Agreement.
7. Collection and Use of Information.
7.1 Licensee acknowledges that We Sparkle may, directly or indirectly through the
services of Third Parties, collect and store information regarding use of the
Software and about equipment on which the Software is installed or through which
it otherwise is accessed and used, through the provision of maintenance and
7.2 Licensee agrees that We Sparkle may use such information for any purpose related
to any use of the Software by Licensee or on Licensee’s equipment, including but
not limited to:
7.2.1 improving the performance of the Software or developing Updates; and
7.2.2 verifying Licensee’s compliance with the terms of this Agreement and
enforcing the We Sparkle’s rights, including all Intellectual Property
Rights in and to the Software.
7.3 A complete and detailed description of the types of information that may be
collected, and the steps We Sparkle takes to protect such information, can be found
8. Intellectual Property Rights. Licensee acknowledges and agrees that the Software and
Documentation are provided under license, and not sold, to Licensee. Licensee does not
acquire any ownership interest in the Software or Documentation under this Agreement, or
any other rights thereto, other than to use the same in accordance with the license granted
and subject to all terms, conditions, and restrictions under this Agreement. We Sparkle and
its licensors and service providers reserve and shall retain their entire right, title, and
interest in and to the Software and all Intellectual Property Rights arising out of or relating
to the Software, except as expressly granted to the Licensee in this Agreement. Licensee
shall safeguard all Software (including all copies thereof) from infringement,
misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify We
Sparkle if Licensee becomes aware of any infringement of the We Sparkle’s Intellectual
Property Rights in the Software and fully cooperate with We Sparkle, in any legal action
taken by We Sparkle to enforce its Intellectual Property Rights.
9. PAYMENT. All License Fees and Support Fees are payable in advance in the manner set
forth in the Order Form and are non-refundable, except as may be expressly set forth
herein. Any renewal of the license or maintenance and support services hereunder shall not
be effective until the fees for such renewal have been paid in full.
10. Term and Termination.
10.1 This Agreement and the license granted hereunder shall remain in effect for the
term set forth on the Order Form or until terminated as set forth herein (the
10.2 We Sparkle may terminate this Agreement, effective upon written notice to
Licensee, if Licensee breaches this Agreement and such breach: (i) is incapable of
cure; or (ii) being capable of cure, remains uncured Seven (7) days after We
Sparkle provides written notice thereof.
10.3 We Sparkle may terminate this Agreement, effective immediately, if Licensee files,
or has filed against it, a petition for voluntary or involuntary bankruptcy or
pursuant to any other insolvency law, makes or seeks to make a general assignment
for the benefit of its creditors or applies for, or consents to, the appointment of a
trustee, receiver, or custodian for a substantial part of its property.
10.4 Upon expiration or earlier termination of this Agreement, the license granted
hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund, in each
case except as set forth in Section 10.2(ii).
11. Warranty Disclaimer.
11.1 THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE
“AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY
OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER
APPLICABLE LAW, WE SPARKLE, ON ITS OWN BEHALF AND ON
BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE
LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL
WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE, WITH RESPECT TO THE SOFTWARE AND
DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT
OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR
TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE
LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES
NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE
WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY
INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER
SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE
WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR
RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS
OR DEFECTS CAN OR WILL BE CORRECTED.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER
12.1 IN NO EVENT WILL WE SPARKLE OR ITS AFFILIATES, OR ANY OF ITS
OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE
LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE,
INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST
REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF
SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF
DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE
FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY
TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE
OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR
PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR
BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE
DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH
DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE
LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 IN NO EVENT WILL WE SPARKLE’S AND ITS AFFILIATES’, INCLUDING
ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE
PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER,
UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND
OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR
PURSUANT TO THIS AGREEMENT FOR UP TO TWELVE (12) MONTHS OR
ONE YEAR OF THE SPECIFIC SERVICES, THAT ARE THE SUBJECT OF
12.3 THE LIMITATIONS SET FORTH IN SECTION 12.1 AND SECTION 12.2
SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS
AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
13. Export Regulation. The Software and Documentation may be subject to US export control
laws, including the Export Control Reform Act and its associated regulations. The
Licensee shall not, directly or indirectly, export, re-export, or release the Software or
Documentation to, or make the Software or Documentation accessible from, any
jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or
regulation. The Licensee shall comply with all applicable federal laws, regulations, and
rules, and complete all required undertakings (including obtaining any necessary export
license or other governmental approval), prior to exporting, re-exporting, releasing, or
otherwise making the Software or Documentation available outside the US.
14. US Government Rights. The Software is commercial computer software, as such term is
defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any
contractor therefor, Licensee shall receive only those rights with respect to the Software
and Documentation as are granted to all other end users under license, in accordance with
(a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of
Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US
Government licensees and their contractors.
15.1 Governing law. This Agreement will be construed in accordance with the laws of
the State of Minnesota, except when federal law applies.
15.2 Any legal suit, action, or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby shall be submitted to binding arbitration in
accordance with the rules and procedures of the American Arbitration Association.
In no event will this arbitration clause be interpreted to allow a class action in
arbitration. Unless the parties hereafter mutually agree otherwise, the award of the
arbitrators will be final and binding on the parties hereto and judgment upon such
award may be entered into a court having jurisdiction thereof. The parties will
mutually agree upon an arbitrator. If the parties are unable to agree upon an
arbitrator, each party will choose one arbitrator and those two arbitrators will
together appoint a third arbitrator. The third arbitrator will then conduct the
arbitration process. The arbitrator will have no authority to award any punitive or
exemplary damages, or to vary or ignore the terms of this Agreement, and will be
bound by controlling law.
15.3 We Sparkle will not be responsible or liable to Licensee, or deemed in default or
breach hereunder by reason of any failure or delay in the performance of its
obligations hereunder where such failure or delay is due to strikes, labor disputes,
civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist
attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or
non-availability of electrical power, heat, light, air conditioning, or Licensee
equipment, loss and destruction of property, or any other circumstances or causes
beyond We Sparkle’s reasonable control.
15.4 All notices, requests, consents, claims, demands, waivers, and other
communications hereunder shall be in writing and shall be deemed to have been
given: (i) when delivered by hand (with written confirmation of receipt); (ii) when
received by the addressee if sent by a nationally recognized overnight courier
(receipt requested); (iii) on the date sent by facsimile or email (with confirmation
of transmission) if sent during normal business hours of the recipient, and on the
next business day if sent after normal business hours of the recipient; or (iv) on the
third day after the date mailed, by certified or registered mail, return receipt
requested, postage prepaid. Such communications must be sent to the respective
parties at the addresses set forth on the Order Form (or to such other address as
may be designated by a party from time to time in accordance with this Section
15.5 This Agreement, together with the Order Form, and all other documents that are
incorporated by reference herein, constitutes the sole and entire agreement between
Licensee and We Sparkle with respect to the subject matter contained herein, and
supersedes all prior and contemporaneous understandings, agreements,
representations, and warranties, both written and oral, with respect to such subject
15.6 Licensee shall not assign or otherwise transfer any of its rights, or delegate or
otherwise transfer any of its obligations or performance, under this Agreement, in
each case whether voluntarily, involuntarily, by operation of law, or otherwise,
without We Sparkle’s prior written consent, which consent We Sparkle may give
or withhold in its sole discretion. For purposes of the preceding sentence, and
without limiting its generality, any merger, consolidation, or reorganization
involving Licensee (regardless of whether Licensee is a surviving or disappearing
entity) will be deemed to be a transfer of rights, obligations, or performance under
this Agreement for which We Sparkle’s prior written consent is required. No
delegation or other transfer will relieve Licensee of any of its obligations or
performance under this Agreement. Any purported assignment, delegation, or
transfer in violation of this Section 15.5 is void. We Sparkle may freely assign or
otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any
of its obligations or performance, under this Agreement without Licensee’s
consent. This Agreement is binding upon and inures to the benefit of the parties
hereto and their respective permitted successors and assigns.
15.7 This Agreement is for the sole benefit of the parties hereto and their respective
successors and permitted assigns and nothing herein, express or implied, is
intended to or shall confer on any other Person any legal or equitable right, benefit,
or remedy of any nature whatsoever under or by reason of this Agreement.
15.8 This Agreement may only be amended, modified, or supplemented by an
agreement in writing signed by each party hereto. No waiver by any party of any of
the provisions hereof shall be effective unless explicitly set forth in writing and
signed by the party so waiving. Except as otherwise set forth in this Agreement, no
failure to exercise, or delay in exercising, any right, remedy, power, or privilege
arising from this Agreement shall operate or be construed as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power, or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power, or privilege.
15.9 If any term or provision of this Agreement is invalid, illegal, or unenforceable in
any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any
other term or provision of this Agreement or invalidate or render unenforceable
such term or provision in any other jurisdiction.
15.10 For purposes of this Agreement, (a) the words “include,” “includes,” and
“including” shall be deemed to be followed by the words “without limitation”; (b)
the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,”
“hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context
otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and
Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to,
this Agreement; (y) to an agreement, instrument, or other document means such
agreement, instrument, or other document as amended, supplemented, and
modified from time to time to the extent permitted by the provisions thereof and (z)
to a statute means such statute as amended from time to time and includes any
successor legislation thereto and any regulations promulgated thereunder. This
Agreement shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting an instrument or causing
any instrument to be drafted. The Order Form referred to herein shall be construed
with, and as an integral part of, this Agreement to the same extent as if they were
set forth verbatim herein.
15.11 The headings in this Agreement are for reference only and do not affect the
interpretation of this Agreement.