The Service is offered for the following software application:
- Spark for iOS
- Spark for Mac
- Spark Web Admin portal
Application means one or more Readdle software application listed above or such other software application as notified by Readdle from time to time.
Readdle means Readdle Inc., with representative office at the following address: Readdle GmbH, Stresemannstrasse 123, 10963 Berlin, Germany
Fees means the charges by Readdle for subscription to or use of the Service.
Order Form means the Readdle order form or forms and any ancillary Readdle terms completed and processed by and with Subscriber to sign up for the relevant Service.
Service means hosting of the specific Readdle software Application identified during the ordering process, developed or licensed, operated, and maintained by Readdle, accessible via https://sparkmailapp.com or another designated by Readdle web site or IP address, or ancillary online or offline products and services provided to Subscriber by Readdle, to which Subscriber is being granted access under this Agreement.
Subscriber means the individual or entity that has subscribed for the Service under the terms and conditions of this Agreement.
Term means the Initial Term or any Renewal Term, as defined in Section 7 below.
USD means United States dollars.
User means Subscriber's employees, representatives, consultants, contractors, customers, affiliates or agents who are authorized to use the Service, have registered with the Service on their own, and were approved by Subscriber (or by or for Readdle at Subscriber's request) to be the User of the Service within Subscriber's account.
2.1. Terms of Service. Subscriber acknowledges and agrees to the terms of service herein. In addition, Subscriber agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new Service(s) subsequently purchased by the Subscriber will be subject to this Agreement.
2.2. Subscriber Must Have Internet Access. In order to use the Service, Subscriber must have or must obtain access to the World Wide Web, either directly or through devices that access Web-based content. Subscriber must also provide all equipment necessary to make such (and maintain such) connection to the World Wide Web.
2.3. Accuracy Of Subscriber's Registration Information. Subscriber agrees to provide accurate, current and complete information ("Registration Data") about Subscriber as prompted by the registration form, which Subscriber will fill out online in order to gain access to the Service. Subscriber further agrees to use commercially reasonable efforts to maintain and promptly update the Registration Data to keep it accurate, current and complete. Subscriber acknowledges and agrees that if Subscriber provides information that is intentionally inaccurate, not current or incomplete in a material way, or Readdle has reasonable grounds to believe that such information is untrue, inaccurate, not current or incomplete in a material way, Readdle has the right to suspend or terminate Subscriber's account.
2.4. Email And Notices. Subscriber agrees to provide Readdle with Subscriber's email address, to promptly provide Readdle with any changes to Subscriber's email address, and to accept emails (or other electronic communications) from Readdle at the e-mail address Subscriber specifies. Except as otherwise provided in this Agreement, Subscriber further agrees that Readdle may provide any and all notices, statements, and other communications to Subscriber through either email or posting on the Service.
2.5. Third-Party Software. Subscriber agrees to use software produced by third parties, including, but not limited to, "browser" software that supports a data security protocol compatible with the protocol used by Readdle. Until notified otherwise by Readdle, Subscriber agrees to use software that supports the Transport Layer Security (TLS) protocol or other protocols accepted by Readdle and to follow logon procedures for services that support such protocols. Subscriber acknowledges that Readdle is not responsible for notifying Subscriber of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks not owned or operated by Readdle or telecommunications facilities, including, but not limited to, the Internet.
2.6. Transmission Of Data. Readdle employs security measures designed for the protection of information and data. However, Subscriber understands that the technical processing and transmission of Subscriber's electronic communications is fundamentally necessary to Subscriber's use of the Service. Subscriber agrees that Readdle is not responsible for any electronic communications and/or Subscriber Data which are lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by Readdle.
2.7. Subscriber Content.
a. Some areas of the Service allow Subscribers to post content such as documents, data, messages, personal data and other content or information (any such materials a Subscriber submits, posts, displays, or otherwise makes available on the Service "Subscriber Content"). Subscriber retains ownership of their Subscriber Content.
b. In connection with your Subscriber Content, Subscriber affirms, represents and warrants that the Subscriber Content and Readdle's use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and privacy rights. Readdle takes no responsibility and assumes no liability for any Subscriber Content that Subscriber or any other subscribers, users, or third party posts or sends over the Service. Subscriber shall be solely responsible for its Subscriber Content.
2.8. Proprietary Rights.
a. Subscriber acknowledges and agrees that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Subscriber further acknowledges and agrees that content or information presented to Subscriber through the Service or by advertisers may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
b. Each party retains all right, title and interest in its data, information and intellectual property rights, and nothing in this Agreement is intended to transfer or diminish such rights. The parties further acknowledge and agree that as between the parties, Readdle owns all right, title, and interest in the Service, Application and the Readdle Technology and underlying software and proprietary and intellectual property rights therein. The use by Licensee of any of these rights is authorized only for the purposes set forth herein and upon expiration or termination of this Agreement for any reason such authorization will cease.
2.9. Confidentiality. Except as expressly and unambiguously permitted hereunder, each party shall hold in confidence and not use or disclose any materials or information disclosed by the other party that are marked as confidential or proprietary, or if disclosed verbally, reduced to writing and marked confidential within thirty (30) days after the date of disclosure ("Confidential Information"). Confidential Information will also include the Application, Software, Documentation and any new product or service information. Each party shall treat the other party's Confidential Information with at least the same degree of care it uses to prevent unauthorized disclosure or use of it own Confidential Information, but in no event less than reasonable care. Confidential Information will not include any materials or information that the recipient can prove is now, or later becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; (ii) is known by the receiving party at the time of disclosure as evidenced by its records; (iii) is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the receiving party without any breach of this Agreement; (v) is the subject of a written permission to disclose provided by the disclosing party; (vi) is disclosed in response to a valid order of a court or other governmental body or any political subdivision thereof "in the jurisdiction in which the confidential information is required to be disclosed; provided, however, that the receiving party shall first have given notice to the disclosing party and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for which the order was issued; or (vii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. Access to the Confidential Information is limited to employees and agents of the receiving party who have a legitimate "need to know" the information for their performance of this Agreement, who have been advised of the confidential nature thereof and who have agreed in writing, as a condition of employment, engagement or otherwise, to protect the Confidential Information with terms no less than are imposed by this Agreement. Notwithstanding the above, Readdle may use aggregate information to measure general Service usage patterns and characteristics of its user base, and may include such aggregate information about its audience in promotional materials or reports to third parties. This aggregate information will not reference names, phone numbers, email addresses, or other personally identifiable information, and it is not traceable to a specific recipient or user email address. Readdle may assign its rights in this agreement to any third party as it determines in its absolute discretion.
2.10 Data Protection.
a. Readdle. Readdle will observe all statutory data protection regulations applicable to Readdle concerning the Service, in particular the General Data Protection Regulation. Readdle will also take appropriate technical and organizational measures to ensure adequate protection of the personal data of Subscriber or Subscriber’s Users, if processed by Readdle as part of the Service. In particular, Readdle may only process personal data of Subscriber or Subscriber’s Users within the scope of the Service and shall not transfer this data to any unauthorized third party.
With regard to the personal data of Subscriber, Readdle may only process such data (i) for and on behalf of the Subscriber as a Controller and Readdle as a Processor, (ii) according to the Subscriber's instructions, and (iii) to fulfill the Readdle's obligations under this Agreement. The Parties agree to enter into the additional commissioned data processing agreement as contained in an Annex to this Agreement. This commissioned data processing agreement, in particular, further stipulates the obligations of Readdle with regard to the processing of the personal data of Subscriber or Subscriber's Users.
b. Subscriber. With respect to the personal data uploaded into the Application and/or the Service, the Subscriber remains the responsible body and, therefore, must always verify whether the processing of data is covered by corresponding legal authorizations. The Subscriber shall in particular comply with all statutory data protection regulations applicable to Subscriber (e.g. General Data Protection Regulation, “GDPR”), in particular with regard to the personal data the Subscriber (including its Users) uses in connection with the Application and/or the Service (e.g. when respective personal data is uploaded to the Application and/or the Service). The Subscriber shall, in particular, ensure that the transfer of personal data (including personal data of (i) its employees / its Users, (ii) its clients and/or customers, and/or (iii) (other) third parties) to Readdle and/or to the Application and/or the Service is in compliance with and meets all requirements of the applicable statutory data protection regulations. The Subscriber shall also oblige its Users accordingly. The Subscriber shall indemnify and hold Readdle harmless from all claims of third parties that arise from a culpable violation by the Subscriber (and or its Users) of the aforementioned obligations.
2.11. Service Rules.
a. Subscriber agrees not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated "scraping"; (ii) using any automated system, including without limitation "robots," "spiders," "offline readers," etc., to access the Service in a manner that sends more request messages to Readdle servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Readdle grants the operators of public search engines revocable permission to use spiders to copy materials from https://sparkmailapp.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
b. Readdle may, without prior notice, change the Service; stop providing the Service or features of the Service, to subscribers or to users generally; or create/change usage limits for the Service. Readdle may permanently or temporarily terminate or suspend Subscriber access to the Service without notice and liability for any reason, including if in Readdle's sole determination Subscriber violates any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, Subscriber continues to be bound by this Agreement.
3. Professional service
If professional services (such as implementation, training, consulting, etc.,) are provided, their scope, terms and cost will be mutually agreed upon in writing in an additional Order Form ("Professional Services") and Statement of Work ("SOW").
4. Restrictions and responsibilities
a. This is a contract for Services and the software will be installed, accessed and maintained only by or for Readdle and no license is granted thereto. Subscriber agrees that it will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any Application, software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. Subscriber represents, covenants, and warrants that Subscriber will use the Services only in compliance with Readdle's standard policies then in effect (the "Policy") and all applicable laws (including but not limited to policies and laws related to spamming, privacy (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation). Subscriber hereby agrees to indemnify and hold harmless Readdle against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Subscriber's use of Services. Although Readdle has no obligation to monitor the content provided by Subscriber or Subscriber's use of the Services, Readdle may do so and may remove any such content or prohibit any use of the Services it believes may be (or are alleged to be) in violation of the foregoing.
b. Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, email servers, email services, web servers, web services, long distance and local telephone service (collectively, "Equipment"). Subscriber shall be responsible for ensuring that such Equipment and services are compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Readdle's published policies then in effect. Subscriber shall also be responsible for maintaining the security of the Equipment, Subscriber account, ancillary services, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Subscriber account, Services or the Equipment with or without Subscriber's knowledge or consent.
5. Fees, billing and renewal
a. Spark will charge Value-Added Tax (VAT) in addition to Service price. Subscriber will be charged the VAT depending on their location. Customers will always see a net price before the checkout on the pricing page (7.99$ per month per user with Monthly Billing, 6.39$ per month per user with Annual Billing). When customers get to the final stage of checkout after entering VAT and location, we'll show them Total price: Net price + applicable tax.
b. Subscriber selects its initial subscription term, which may be a month or a year. Once that term expires, it will automatically renew for successive terms of the same duration unless either Subscriber or Readdle notifies the other of non-renewal at least 5 business days prior to the upcoming expiration date. Readdle reserves the right to change Service Fee upon one month written notice to the Subscriber. Renewals are charged at Readdle's then-current rates unless otherwise agreed to between the Parties, and Readdle will at its discretion charge Subscriber using the credit card on file on or after the expiration date, or send Subscriber an invoice. "Subscription Term" means the initial term and any renewal term(s).
c. Prices for all plans are calculated and charged in USD regardless of the region of Service purchase. All paid Service fees are non-refundable, unless otherwise agreed with Subscriber in writing. Whenever customer decides to cancel paid subscription, it will be canceled immediately and Service will be downgraded to Free plan.
d. Whenever more Users on your team start to use our paid Service, your credit card will be charged a prorated amount based on how much Service will be used by new users until the end of the current billing cycle. If you remove users, the equivalent amount in USD will be credited towards the Service fee for the next billing period.
6. Non-payment and suspension
All payments for Fees shall be due according to the terms in Section 5 (Fees, Billing and Renewal) and as provided on the relevant Service, and shall be deemed delinquent if not received by the due date. In addition to any other rights granted to Readdle herein, Readdle reserves the right to suspend or terminate this Agreement and Subscriber's access to the Service if Subscriber's account becomes delinquent. Delinquent invoices are subject to interest charges of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Subscriber will continue to be charged during any period of suspension. If Subscriber or Readdle initiates termination of this Agreement, Subscriber will be obligated to pay the balance due on account computed in accordance with this Section and the Fees, Billing and Renewal Section above. Subscriber agrees that Readdle may charge such unpaid Fees and charges to Subscriber's credit card or otherwise bill Subscriber for such unpaid Fees and charges. Subscriber agrees and acknowledges that Readdle has no obligation to retain Subscriber Data and that such Subscriber Data may be irretrievably deleted if Subscriber's account becomes delinquent.
Customers with payments overdue for more than 30 days will be downgraded to a Free version of Spark. We will notify our customers about upcoming invoice payments 7 days in advance.
If we are not able to charge customer's credit card on the day of the Next Payment, we will attempt to charge customer's credit card on record for 4 times over the period of 30 days. If payment is unsuccessful, paid subscription will be canceled.
7. Term, reduction in users and termination
a. This Agreement commences on the Effective Date. Unless earlier terminated under Sections 6 or 7, this Agreement will automatically renew at the end of the initial Term specified in the Order form (the "Initial Term") and any Renewal Term for successive renewal terms equal in duration to the Initial Term, or one year, if the Initial Term is equal to or greater than one year (each a "Renewal Term") at Readdle's then current rates, unless a different rate is specified in the Order Form. Either party may terminate this Agreement, effective only upon the expiration of the then current Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following Term. Subscriber agrees and acknowledges that Readdle has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, more than 30 days after Service termination.
b. Any breach or delinquency of Subscriber's payment obligations or unauthorized use of the Readdle Technology or Service will be deemed a material breach of this Agreement. Readdle, in its sole discretion, may terminate Subscriber's password, account or use of the Service and this Agreement if Subscriber breaches or otherwise fails to comply with this Agreement. In addition, Readdle may terminate a free account at any time in its sole discretion. Subscriber agrees and acknowledges that Readdle has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, if Subscriber has materially breached this Agreement, including, but not limited to, failure to pay outstanding Fees, and such breach has not been cured within 30 days of payment delinquency or notice of such breach.
c. Sections 2 (Definitions), 3 (Terms of Service for Readdle Application), 4 (Restrictions and Responsibilities), 5 (Fees, Billing and Renewal) (surviving until all Fees and charges are paid and Subscriber responsibilities fulfilled), 6 (Non-Payment and Suspension) (surviving until all Fees and charges are paid), 7 (Term, Reduction in Users and Termination), 8 (Assignment, Successors and Assigns), 11.b. (Indemnification), 12 (Disclaimer of Warranties), 13 (Exclusion of Damages and Limitation of Liability), and 14 ("General Provisions"), shall survive expiration or termination of this Agreement.
8. Assignment, successors and assigns
Subscriber shall not transfer or assign this Agreement or any rights or obligations hereunder without the prior written consent of Readdle, and any attempted assignment or transfer in violation of the foregoing will be void. This Agreement will be for the benefit of the permitted successors and assigns, and will be binding on heirs, legal representatives, and permitted assignees.
9. Publicity rights
Subscriber grants Readdle the right to include the Subscriber as a customer in Readdle's promotional material. Subscriber can opt to have their name excluded from such use by Readdle except as agreed to in writing on a case-by-case basis by providing a sufficiently detailed email request regarding the same to firstname.lastname@example.org; the subject line in such email should be entitled "Non-use of Subscriber Name."
10. Representations & warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Readdle represents and warrants that it will use commercially reasonable efforts to provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and substantially in accordance with the online Readdle help documentation under normal use and circumstances. Subscriber represents and warrants that Subscriber has not provided any false information to gain access to the Service and that billing information is correct.
a. By Readdle. Readdle shall defend, indemnify and hold Subscriber harmless from all settlements agreed to by Readdle and all costs and direct damages finally awarded to a third party to the extent they arise out of a claim that the Service as delivered to Subscriber infringes a third party's registered patent or copyright. Subscriber will be entitled to indemnification only (I) if Subscriber notifies Readdle in writing within ten (10) days of the date Subscriber first becomes aware of a claim; (II) Readdle has sole control of the settlement, compromise, negotiation and defense of any such action; and (III) Subscriber gives Readdle all reasonably available information and assistance, at Readdle's expense. Readdle may, at its option, obtain the right to continued use of the Service, substitute other equivalent service, or modify the Service so it is no longer infringing, or, if none of the foregoing remedies are commercially feasible in Readdle's sole discretion, terminate Subscriber's right to the allegedly infringing Service and refund to Subscriber a pro rata portion of the amount which Subscriber has paid for such Service. The foregoing indemnity will not apply to any infringement claim arising from (a) modification of the Service by parties other than Readdle, (b) combination of the Service with hardware and/or other software and/or ancillary services, if such claim would have been avoided by not so combining the Service, or (c) use of the Service other than in accordance with Readdle instructions and documentation. THE FOREGOING STATES READDLE'S SOLE OBLIGATION AND SUBSCRIBER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND.
b. By Subscriber. Subscriber shall defend, indemnify and hold Readdle harmless from all third party claims and settlements agreed to by Subscriber and all costs and direct damages awarded to a third party to the extent they arise out of Subscriber's infringement of any third party rights, or breach of any provision of this Agreement, or making representations or warranties regarding the Service to other third parties. Readdle agrees that (I) it shall provide written notice promptly after it first becomes aware of a claim; (II) Subscriber shall have sole control of the settlement, compromise, negotiation and defense of any such action; and (III) it shall give Subscriber all reasonably available information and assistance, at Subscriber's expense. Readdle shall have the right to participate in the defense or settlement with counsel of its own choosing at Readdle's expense, provided however that the same shall be at Subscriber's expense if Subscriber fails to put on an adequate defense of Readdle.
c. Further responsibilities for Subscriber
The Subscriber undertakes to oblige its respective Users to take due care in keeping the (i) User’s password and other registration and account data safe, and (ii) access to the account secure. Furthermore, the Subscriber shall ensure (also with regard to its Users) that unauthorized third parties do not gain knowledge of the account password. The Subscriber must inform Readdle immediately of any suspicion that access data or passwords could have become known to unauthorized third parties. This does not affect the Subscriber's obligation to take appropriate measures to counter potential threats or access to the Service in such cases. The Subscriber is liable to Readdle for damages incurred by not observing the above duties. The Subscriber refrains from any measures that could threaten the security and stability of Readdle’s Service and systems; in particular, the Subscriber will not retrieve and let others retrieve any information or data without authorization.
As part of the use of the Service, the Subscriber must independently and regularly back up the documents and data generated and used by downloading them and creating its own backup copies.
d. Limitation of Liability
Readdle is not liable for potential damages to the Subscriber that result from a loss of documents or data as far as the damages could have been avoided by a regular and complete backup of all relevant documents or data by the Subscriber. The Subscriber shall complete a regular and complete data backup by himself or through a third party and is solely responsible for this.
12. Disclaimer of warranties
READDLE AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT THEREIN OR GENERATED THEREWITH. READDLE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET SUBSCRIBER'S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY SUBSCRIBER THROUGH THE SERVICE WILL MEET SUBSCRIBER'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 10, THE SERVICE AND ALL CONTENT IS PROVIDED TO SUBSCRIBER STRICTLY ON AN "AS IS" BASIS; ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY READDLE AND ITS LICENSORS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
13. Exclusion of damages and limitation of liability
IN NO EVENT WILL READDLE'S AGGREGATE LIABILITY UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY SUBSCRIBER TO READDLE DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INITIAL EVENT RESULTING IN SUCH CLAIMS. READDLE WILL NOT BE LIABLE FOR LOST PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF READDLE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE CUMULATIVE FOR ALL CLAIMS HOWSOEVER ARISING UNDER ALL AGREEMENTS, AND SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL FAIL OF THEIR ESSENTIAL PURPOSE.
Subscribers access the services at their own volition and are entirely responsible for compliance with all applicable state and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States or EU or are a foreign person or entity blocked or denied by the United States or EU government.
14. DMCA notice
Readdle respects artist and content owner rights, and therefore it is Readdle's policy to respond to alleged infringement notices that comply with the United States Digital Millennium Copyright Act of 1998 ("DMCA"). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Readdle's copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Service;
- Information reasonably sufficient to permit Company to contact you, such as your address, telephone number, and, e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
UNDER UNITED STATES FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES. Please note that this procedure is exclusively for notifying Readdle and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Readdle's rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws. In accordance with the DMCA and other applicable law, Readdle has adopted a policy of terminating, in appropriate circumstances, Users or Subscribers who are deemed to be repeat infringers. Readdle may also at its sole discretion limit access to the Service and/or terminate the accounts of any Subscribers or Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
15. Dispute resolution
15.1. Arbitration Agreement. Please read this Arbitration Agreement carefully. It is part of your contract with Readdle and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION.
15.2. Dispute. The term "Dispute" means any dispute, claim or controversy between you and Readdle or Readdle and you arising out of, or relating to, the Sites, Applications or Services, these Terms or your Account, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section 15. "Dispute" is to be given the broadest possible meaning. You agree that any Dispute between you and Readdle will be governed by the arbitration procedures outlined below. If a Dispute arises between you and Readdle, our goal is to provide you with a neutral and cost effective means of resolving the Dispute quickly. Accordingly, you and Readdle agree that we will resolve any Dispute in accordance with one of the subsections below or as Readdle and you otherwise agree in writing.
15.3. MANDATORY BINDING ARBITRATION. In the interest of resolving Disputes between you and Readdle in the most expedient and cost effective manner, you and Readdle agree that every Dispute will be resolved by binding arbitration.
15.4. Arbitrator. All Disputes subject to this Arbitration Agreement will be governed by International Centre for Dispute Resolution (ICDR), the international division of the American Arbitration Association (AAA), and will be administered by the ICDR. The ICDR Rules and filing forms are available online at https://www.icdr.org/rules_forms_fees, by calling the ICDR at +1.212.484.4181, or by contacting Readdle.
15.5. Substantive Law; Language. Any Dispute between you and Readdle will be governed by New York law. The arbitration will be conducted in English.
15.6. Notice; Process. A party who intends to seek arbitration must first send a written notice of the Dispute to the other party by certified mail or by commercial express delivery (signature required) or, only if such other party has not provided a current physical address, then by electronic mail ("Notice"), in your case to the email address you have provided as part of your Account. The Notice must: (a) describe the nature and basis of the claim or Dispute; and (b) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Readdle may commence an arbitration proceeding. Readdle’s address for the notice is: Alte Marktoberdorfer Str. 14, 87616 Marktoberdorf, Germany.
15.7. Fees. If you commence arbitration in accordance with these Terms the payment of any fees will be decided by the ICDR Rules. Any arbitration hearing will take place at a location to be agreed upon in New York City, NY, USA, but if the claim is for $100,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; or (b) through a telephonic hearing.
15.8. Modifications to this Arbitration Provision. If Readdle makes any future change to this Arbitration Agreement, other than a change to Readdle's address for notice, you may reject the change by sending us written notice within 30 days of the change to Readdle's address for notice, in which case your Account with Readdle will be immediately terminated and this Arbitration Agreement, as in effect immediately prior to the changes you rejected, will survive.
15.9. Confidentiality. All aspects of the arbitration proceeding, including, but not limited to, the award of the arbitrator and compliance therewith, shall be strictly confidential. You and Readdle agree to maintain confidentiality unless otherwise required by law. This section shall not prevent a party from submitting to a court of law any information necessary to enforce these Terms, to enforce an arbitration award, or to seek injunctive or equitable relief as permitted herein.
15.10. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Readdle.
16. General provisions
This Agreement, including all Order Forms provided by and entered with Readdle in connection herewith, constitutes the entire agreement between the parties with regard to its subject matter, supersedes all prior or contemporaneous agreements, commitments, representations, writings, and discussions between the parties, whether oral or written, shall apply in lieu of the terms or conditions in any Subscriber purchase order or other order documentation (all such terms or conditions shall be null and void), and there are no other agreements, representations, warranties, or commitments which may be relied upon by either party. Neither party shall be liable hereunder by reason of failure or delay in the performance of its obligations hereunder (except for the non-payment of money) on account of strikes, shortages, riots, insurrection, war, acts of terrorism, fires, flood, storm, explosions, earthquakes, acts of God, governmental action, labor conditions, or any other cause which is beyond the reasonable control of the party. If a court of competent jurisdiction finds any provision hereof invalid or unenforceable, that provision will either be amended to achieve as nearly as possible the intent of the parties, or if amendment is not possible the offending provision shall be deemed struck, and the remainder of this Agreement will remain in full force and effect. The captions and headings in this Agreement are for convenience only and shall not affect the construction and interpretation of any provision of this Agreement. Where this Agreement is executed in hard copy and not entered into by on-line acceptance, this Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. In the event of a conflict with the provisions of this Agreement, the provisions in any Order Form shall govern.
Personal data processing annex
- Readdle (hereinafter: "the Processor");
- Subscriber, (hereinafter: "the Controller");
hereinafter collectively referred to as "Parties" and individually "Party",
having regard to the fact that,
- the Controller has access to the personal data of various clients (hereinafter: ‘Data subjects');
- the Controller wants the Processor to execute certain types of processing in accordance with the Agreement concluded with the Processor (hereinafter: "the Agreement");
- the Controller has determined the purpose of and the means for the processing of personal data as governed by the terms and conditions referred to herein;
- the Processor has undertaken to comply with this data processing annex (hereinafter: "the Data Processing Annex") and to abide by the security obligations and all other aspects of the General Data Protection Act (hereinafter: "GDPR");
- the Controller is hereby deemed to be the responsible party within the meaning of Article 24 of the GDPR;
- the Processor is hereby deemed to be the processor within the meaning of Article 28 of the GDPR;
- the Parties, having regard also to the provisions of Article 30 of the GDPR, wish to lay down their rights and duties in writing in this Data Processing Annex,
have agreed as follows,
1. Processing objectives
a. The Processor undertakes to process personal data on behalf of the Controller in accordance with the conditions laid down in this Data Processing Annex. The processing will be executed exclusively within the framework of the Agreement, and for all such purposes as may be agreed to subsequently.
b. The Processor shall refrain from making use of the personal data for any purpose other than as specified by the Controller. The Controller will inform the Processor of any such purposes which are not contemplated in this Data Processing Annex.
c. All personal data processed on behalf of the Controller shall remain the property of the Controller and/or the relevant Data subjects.
d. The Processor shall take no unilateral decisions regarding the processing of the personal data for other purposes, including decisions regarding the provision thereof to third parties and the storage duration of the data.
2. Processor's obligations
a. The Processor shall warrant compliance with the applicable laws and regulations, including laws and regulations governing the protection of personal data, such as the GDPR.
b. The Processor shall furnish the Controller promptly on request with details regarding the measures it has adopted to comply with its obligations under this Data Processing Annex and the GDPR.
c. The Processor's obligations arising under the terms of this Data Processing Annex apply also to whomsoever processes personal data under the Processor's instructions.
3. Transmission of personal data
a. The Processor may process the personal data in countries outside the European Union. In addition, the Processor may also transfer the personal data to a country outside the European Union provided that such country guarantees an adequate level of protection and it satisfies the other obligations applicable to it pursuant to this Data Processing Agreement and the GDPR.
b. Upon request, the Processor shall notify the Controller as to which country or countries the personal data will be processed in.
4. Allocation of responsibility
a. The Processor shall only be responsible for processing the personal data under this Data Processing Annex, in accordance with the Controller's instructions and under the (ultimate) responsibility of the Controller. The Processor is explicitly not responsible for other processing of personal data, including but not limited to processing for purposes that are not reported by the Controller to the Processor, and processing by third parties and / or for other purposes.
b. Controller represents and warrants that it has express consent and/or a legal basis to process the relevant personal data. Furthermore, the Controller represents and warrants that the contents are not unlawful and do not infringe any rights of a third party. In this context, the Controller indemnifies the Processor of all claims and actions of third parties related to the processing of personal data without express consent and/or legal basis under this Data Processing Annex.
5. Engaging of third parties or subcontractors
a. The Processor is authorised within the framework of the Agreement to engage third parties, without the prior approval of the Controller being required. Upon request of the Controller, the Processor shall inform the Controller about the third party/parties engaged.
b. The Processor shall in any event ensure that such third parties will be obliged to agree in writing to the same duties that are agreed between the Controller and the Processor.
6. Duty to report
a. In the event of a security leak and/or the leaking of data, as referred to in Article 34 of the GDPR, the Processor shall, to the best of its ability, notify the Controller thereof with undue delay, after which the Controller shall determine whether or not to inform the Data subjects and/or the relevant regulatory authority(ies). This duty to report applies irrespective of the impact of the leak. The Processor will endeavour that the furnished information is complete, correct and accurate.
b. If required by law and/or regulation, the Processor shall cooperate in notifying the relevant authorities and/or Data subjects. The Controller remains the responsible party for any statutory obligations in respect thereof.
c. The duty to report includes in any event the duty to report the fact that a leak has occurred, including details regarding:
- the (suspected) cause of the leak;
- the (currently known and/or anticipated) consequences thereof;
- the (proposed) solution;
- the measures that have already been taken.
a. The Processor will endeavour to take adequate technical and organisational measures against loss or any form of unlawful processing (such as unauthorised disclosure, deterioration, alteration or disclosure of personal data) in connection with the performance of processing personal data under this Data Processing Annex.
b. The Processor does not guarantee that the security measures are effective under all circumstances. The Processor will endeavour to ensure that the security measures are of a reasonable level, having regard to the state of the art, the sensitivity of the personal data and the costs related to the security measures.
c. The Controller will only make the personal data available to the Processor if it is assured that the necessary security measures have been taken. The Controller is responsible for ensuring compliance with the measures agreed by and between the Parties.
8. Handling requests from involved parties
a. Where a Data subject submits a request to the Processor to inspect, as stipulated by Article 15 GDPR, or to erase, improve, add to, change, or protect their personal data, as stipulated by Articles 16, 17, and 18 GDPR, the Processor will forward the request to the Controller and the request will then be dealt with by the Controller. The Processor may notify the Data subject hereof.
9. Non disclosure and confidentiality
a. All personal data received by the Processor from the Controller and/or compiled by the Processor within the framework of this Data Processing Annex is subject to a duty of confidentiality vis-à-vis third parties.
b. This duty of confidentiality will not apply in the event that the Controller has expressly authorised the furnishing of such information to third parties, where the furnishing of the information to third parties is reasonably necessary in view of the nature of the instructions and the implementation of this Data Processing Annex, or if there is a legal obligation to make the information available to a third party.
a. In order to confirm compliance with this Data Processing Annex, the Controller shall be at liberty to conduct an audit by assigning an independent third party who shall be obliged to observe confidentiality in this regard. Any such audit will follow the Processor's reasonable security requirements, and will not interfere unreasonably with the Processor's business activities.
b. The audit may only be undertaken when there are specific grounds for suspecting the misuse of personal data, and no earlier than two weeks after the Controller has provided written notice to the Processor.
c. The findings in respect of the performed audit will be discussed and evaluated by the Parties and, where applicable, implemented accordingly as the case may be by one of the Parties or jointly by both Parties.
d. The costs of the audit will be borne by the Controller.
11. Duration and termination
a. This Data Processing Annex is entered into for the duration set out in the Agreement, and in the absence thereof, for the duration of the cooperation between the Parties.
b. The Data Processing Annex may not be terminated in the interim.
c. This Data Processing Annex may only be amended by the Parties subject to mutual consent.
d. The Processor shall provide its full cooperation in amending and adjusting this Data Processing Annex in the event of new privacy legislation.
a. The Data Processing Annex and the implementation thereof will be governed by German law.
b. Any dispute arising between the Parties in connection with and/or arising from this Data Processing Annex will be referred to the competent German court in the district where the Processor has its registered representative office.
c. In the case of any inconsistency between documents and the appendices thereto, the following order of priority will apply:
- the Agreement;
- this Data Processing Annex;
- additional conditions, where applicable.
d. Logs and measurements taken by the Processor shall be deemed to be authentic, unless the Controller supplies convincing proof to the contrary.
e. All communications from the Controller to the Processor related to GDPR should be directed to the Controller's representative office in the EU using the following contact information:
- FAO: Readdle GmbH
- Address: WeWork c/o Readdle GmbH, Stresemannstrasse 123, 10963 Berlin, Germany