You should carefully read the following terms and conditions (“Terms of Service”) before accessing or using the Sprynkl services, apps, Website and corresponding features (collectively, the “Sprynkl Service”) provided by KMS Technology, Inc. (“KMS”, “we” or “us”). Accessing or using the Sprynkl Service constitutes your acknowledgement and acceptance of these Terms of Service.
If you do not agree to these Terms of Service, then do not access or use the Sprynkl Service.
Copies of these Terms of Service are available for download and printing by using current web browser software and going to http://www.sprynkl.io.
YOU MAY USE THE SPRYNKL SERVICE under the following terms and conditions. These Terms of Service (including the Acceptable Use Policy) are the entire agreement between you and KMS, and supersede any other agreement, terms or promises, oral or written, with respect to the subject matter of these Terms of Service.
NOTICE OF BINDING ARBITRATION. any claim, dispute or controversy of whatever nature arising out of or relating to these Terms of Service or the Sprynkl Service shall be resolved by final and binding arbitration in accordance with the process described in the section titled “Arbitration” below, except as otherwise provided. Please read the section titled “Arbitration” carefully.
ABOUT THE SPRYNKL SERVICE.
The Sprynkl Service is intended for team engagement, collaboration and support for the workplace. The Sprynkl Service is intended for persons 18 years or older. Guides, instructions, recommendations, FAQs, restrictions and other documentation regarding the Sprynkl Service (collectively, “Documentation”) can be found at www.sprynkl.io.
When you register for the Sprynkl Service you will create an account using a bona fide work email address (“Account”). As part of creating and updating your account, you will provide certain identifying contact information (“Account Information”). You can update your Account Information through the Sprynkl Service and are responsible for ensuring your Account Information is current. Your protection of your IDs and passwords is an integral part of maintaining the privacy and integrity of data in the Sprynkl Service. You shall keep confidential and not disclose any ID or password to third parties.
A “Team” is a group of Sprynkl Service users who can communicate with each other through the Sprynkl Service. Through your Account you may set up a Team by inviting other users, making you the “Team Leader” for that Team. You may designate other users as co-Team Leaders. Team Leaders may invite and delete users from the Team, moderate Team communications, and assign “Karma Points” within a Team, which is a method to reward members of a Team. You may also be invited by another Team Leader to participate in that Team, and you may be a member of more than one Team. The Sprynkl Service allows you to post and sent messages and other content to other users within your Team (“Communications Content”).
If the company, agency, or other organization which employs or engages you purchases an enterprise subscription to KMS’s Sprynkl service (“Your Organization”), then KMS will contact the applicable Team Leader through the Sprynkl Service and invite the Team to be part of Your Organization’s account. The Team Leader may choose that the Team does not become part of Your Organization’s account. In addition, you may cancel your use of the Sprynkl Service at any time, including if you do not want to continue with a Team that will become part of Your Organization’s account. If your Team does become part of Your Organization’s account, then your Communication Content, Account Information, and other data may be shared with Your Organization as described in the “DATA” section below. You agree that is solely Your Organization’s responsibility to inform you of, and enforce, restrictions it may place on your use of Sprynkl Services or Communications Content and KMS has no responsibility to do so.
USE OF SPRYNKL SERVICE.
Subject to the terms and conditions of these Terms of Service, KMS grants you a non-exclusive, nontransferable, non-sublicensable license to use the Sprynkl Service solely for your personal use as part of your Teams. You may also access and use the Documentation solely in connection with your use of the Sprynkl Service.
CONDITIONS ON USE.
You shall comply with the Acceptable Use Policy as a condition of your use of the Sprynkl Service. The Documentation also contains limitations and recommendations regarding the Sprynkl Service. Your use is subject to the limitations in the Acceptable Use Policy, Documentation and any other limitations regarding the Sprynkl Service that KMS communicates to you. In addition, you may not use the Sprynkl Service for purposes of monitoring the Sprynkl Service’s performance or functionality or for any other benchmarking or competitive purposes.
RESERVATION OF RIGHTS.
Except for the limited rights expressly granted above in these Terms of Service, KMS reserves all rights, title and interest in and to the Sprynkl Service, including all related intellectual property rights. No rights are granted to you other than as expressly set forth above in these Terms of Service. Without limiting the generality of the foregoing, you may not (a) resell, distribute, sublicense, copy, modify, or publicly display the Sprynkl Service, (b) use on behalf of any third party, or permit any third party to use, the Sprynkl Service, (c) decompile or reverse engineer any other software used to provide Sprynkl Service; (d) remove any proprietary rights notices on the Documentation or any displays of any portions of Sprynkl Service (e.g., screen shots), or (e) attempt to gain unauthorized access to the Sprynkl Service or circumvent any security measures within the Sprynkl Service or Desktop Application. You acknowledge and agree that the Sprynkl Service (including any software or systems used to operate the Sprynkl Service) and all Documentation and the information in them are KMS’s confidential and proprietary information. You agree to keep all such information confidential by exercising the necessary care required to prevent disclosure and not to disclose or use such information for any purpose whatsoever other than as expressly authorized by these Terms of Service.
As a part of the Sprynkl Service, KMS and its service providers may collect, process, store, modify, aggregate and otherwise use statistics and other data regarding your use of the Sprynkl Service, such as when and how often you use the Sprynkl Service, the size of your Team, the general location of your Team, and the general characteristics of your Communications Content (“Usage Data”). Usage Data does not include your Communications Content itself or the Account information you provide for registration. However, KMS may aggregate Usage Data with Communications Content, Account Information, Analytic Data (defined below) or information from other sources. KMS owns and retains all rights in the Usage Data and any resulting aggregations, but KMS will not publish Usage Data or any resulting aggregation in a manner that identifies you as the source or that discloses the Communications Content or your Account Information without your prior consent.
Sharing with Your Organization.
If your Team is part of Your Organization’s account, then KMS may share Communications Content, Account Information and Usage Data with Your Organization. KMS is not responsible for Your Organization’s use of any of the Communications Content, Account information or Usage Data, and you hereby release KMS, its affiliates, and its and their respective officers, directors, employees, agents, successors and assigns harmless from and against any claims, liabilities, damages, losses, costs, and expenses, arising from Your Organization’s use of such information.
KMS may analyze the Communications Content and Usage Data and resulting aggregations using a variety of methods and may generate conclusions, evaluations, and other analyses based on these methods (“Analytic Data”). Analytic Data may include evaluations of a Team’s performance using the Sprynkl Service. KMS owns and retains all rights in the Analytic Data, but KMS will not publish Analytic Data in a manner that identifies you as the source or that discloses the Communications Content or your Account Information without your prior consent
KMS may use third parties as part of the infrastructure to provide the Sprynkl Service or as to assist KMS with providing the Sprynkl Service. KMS may transfer the data to a third party in connection with their hosting, transmission or other duties, as long as the third party provider agrees to abide by confidentiality obligations similar to the ones contained in these Terms of Service or in connection with a permitted assignment of these Terms of Service. In addition, KMS may disclose the data described above if required by law or to any government body upon its audit or other inspection of the records or facilities of KMS or its providers.
If you submit to KMS suggestions or other feedback related to the Sprynkl Service or other KMS products or services (“Feedback”), then KMS will own all rights to the Feedback and may use the Feedback for any purpose without compensation to you or any other person and without any obligation of confidentiality to you.
You hereby release, and indemnify, and hold harmless KMS, its affiliates, and its and their respective officers, directors, employees, agents, successors and assigns harmless from and against any claims, liabilities, damages, losses, costs, and expenses, including reasonable legal and accounting fees, arising out of or in any way related to: (a) your breach of these Terms of Service (including the Acceptable Use Policy), (b) your violation of any rights of a third party or applicable law, or (c) your Communications Content and Account Information.
SUSPENSION OF ACCESS.
KMS may suspend your access to the Sprynkl Service or deactivate any of Your Devices for any violation of these Terms of Service or if KMS reasonably believes that your activity is harming the Sprynkl Service or the rights or property of any person. You acknowledge that you will not have access to the Sprynkl Service or Communications Content during any suspension. KMS may exercise the rights in this Section prior to exercising the termination provisions of these Terms of Service and without prior written notice to you. Unless the Agreement is terminated, KMS will remove the suspension upon resolution of the cause of the suspension.
You must use the cancellation option in your profile setting page in the Sprynkl App in order to cancel the Sprynkl Service, and cancellation will be effective as of the date KMS receives your cancellation. KMS will notify you of cancellation via the email address in your account profile, and cancellation will be effective at the end of the then-current Subscription Term. KMS may terminate these Terms of Service and the Sprynkl Service upon your breach of any of the terms contained in these Terms of Service (including the Acceptable Use Policy).
GOVERNING LAW AND LANGUAGE.
These Terms of Service are governed by the laws of the state of Georgia, USA, without regard to choice or conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Service. The official language of these Terms of Service is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.
Disputes regarding this Agreement will be settled exclusively through arbitration conducted by and submitted to a single arbitrator selected from and administered by JAMS, in accordance with the then-existing expedited procedures of the JAMS Comprehensive Arbitration Rules & Procedures. If you are a resident of the United States, then the JAMS office in the State of Georgia will be used. If you are not a resident of the United States, then the JAMS office in Singapore will be used. The arbitration shall be conducted by a licensed attorney with experience in technology law. The arbitrator is authorized to award damages only as permitted by these Terms of Service. Each party shall bear its own attorneys’ fees and costs arising out of the arbitration, and shall pay an equal share of the fees and costs of the Arbitrator and JAMS. However, if you are an individual consumer, then KMS will pay the initial filing fee for the arbitration, less a deduction of US$100 for which you will be responsible. The arbitrator may award to the prevailing party reimbursement of its reasonable attorneys’ fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the arbitrator. The arbitrator shall issue a written award and a written statement of decision describing the material factual ﬁndings and conclusions on which the award is based, including the calculation of any damages awarded. Judgment on the award may be entered by any court of competent jurisdiction. By agreeing to this binding arbitration provision, you understand that you are waiving certain rights and protections which may otherwise be available if a claim or dispute were determined by a court, including, without limitation, the right to seek or obtain certain types of damages, the right to a jury trial, certain rights of appeal, the right to bring a claim as a class member in any purported class or representative proceeding, and the right to invoke formal rules of procedure and evidence. Your use of the Sprynkl Service is based upon your waiver of any right to sue KMS directly or to participate in a class action suit for any losses or damages resulting from your use of the Sprynkl Service.
Small Claims Court.
As an alternative to arbitration, if permitted by your local “small claims” court’s rules, you may bring your dispute in your local “small claims” court, as long as the matter advances on an individual (non-class) basis.
If you are a resident of the United States, then all disputes other than those settled under the “ARBITRATION” or “SMALL CLAIMS COURT” sections above will be settled exclusively in any court of competent jurisdiction located in Fulton County, Georgia. If you are not a resident of the United States, then all disputes other than those settled under the “ARBITRATION” or “SMALL CLAIMS COURT” sections above will be settled exclusively in any court of competent jurisdiction located in Singapore. Each party hereby consents and submits to the in personam jurisdiction of such courts. Each party hereby waives any objection based on forum non conveniens and any objection to the venue of any action instituted under these Terms of Service to the extent that an action is brought in the courts identified above.
Jury Trial Waiver.
To the extent permitted by applicable law, you waive any right to a trial by jury with respect to any claims arising out of or in connection with these Terms of Service or the Sprynkl Service.
KMS may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief) as necessary to enforce its rights in its intellectual property.
LIMITATION OF ACTIONS.
No action arising out of these Terms of Service, regardless of form, may be brought by you more than one year after the date the cause of action has accrued.
The Sprynkl Service may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you as an individual and your organization are not named on any U.S. government denied-party list. You shall not use or export the Sprynkl Service in violation of any U.S. export law or regulation.
U.S. GOVERNMENT END-USE PROVISIONS.
The following applies to all acquisitions of the Sprynkl Service and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The Sprynkl Service and Documentation and services utilizing the Sprynkl Service and Documentation provided under these Terms of Service are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the Sprynkl Service and its associated services and Documentation with only those rights and subject to the restrictions set forth in these Terms of Service. Notwithstanding the foregoing, the Sprynkl Service and its associated services and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.
The parties are independent contractors. These Terms of Service do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to these Terms of Service. No waiver or modification of any provision of these Terms of Service will be effective unless it is in writing, refers to these Terms of Service, and is signed by authorized representatives of the parties. No failure or delay by either party to exercise any right, power, or remedy constitutes a waiver of that right, power, or remedy. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any provision of these Terms of Service requires judicial interpretation, these Terms of Service will not be more strictly construed against one party than the other. If any provision of these Terms of Service is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of the invalidity, so that the remainder of that provision and all remaining provisions of these Terms of Service will continue in full force and effect. You may not assign, sublicense, or transfer these Terms of Service or any rights in the Sprynkl Service without the prior written consent of KMS. Any attempt by you to sublicense, assign or transfer any rights, duties, or obligations hereunder is null and void.