CredSpark for Omeda
Terms of Use
UPDATED MARCH 12, 2024
CredSpark Terms and Conditions of Use
The following Terms and Conditions of Use are set forth by Cred Development LLC, a New York limited liability company d/b/a CredSpark (“CredSpark”) and apply to any individual or entity granted access to CredSpark’s servers without having executed a Software License and Services Agreement (“User”).
CredSpark helps organizations create and administer quizzes, surveys and related interactive content that engage audiences, gather unique data and generate leads. By creating an account in CredSpark’s system, User hereby agrees as follows:
Terms and Conditions:
1. General.
These Terms and Conditions provide for terms regarding User’s use of CredSpark’s software. Accordingly, in the event of a conflict between these Terms and Conditions and any separate agreements between CredSpark and User, or between User and any other party, these Terms and Conditions shall control, unless expressly stated to the contrary and specifically referencing these Terms and Conditions.
2. Defined Terms
For the purposes of these Terms and Conditions, in addition to any other terms defined in these Terms and Conditions, the following terms have the following meanings.
“Deliverables” means the Software and any related Documentation.
“Documentation” means the documentation of the Software.
“Quiz Content” means any quizzes, surveys, polls or any interactive content created by User and hosted on CredSpark’s servers, including all documents, images and recordings included or linked to within the interactive content.
“Services” means the use of CredSpark’s software and any related support services, whether provided by CredSpark or a third party.
“Software” means the computer software in executable code.
3. No Grant of License.
Use of the Software does not constitute a license, and CredSpark reserves all rights. No rights or licenses are granted by implication. User will not reverse engineer, disassemble, decompile, use, distribute or create derivative works of the Software. User is responsible for insuring that the individuals authorized to use the Software comply with these Terms and Conditions.
The design, features and functionality of any quizzes delivered to or on behalf of User using the Software will be solely owned by CredSpark. The Quiz Content will be solely owned by the User. Customer grants to CredSpark a non-exclusive, worldwide, perpetual, royalty-free license to use and allow others to use Quiz Content and to create and use works derived from the Quiz Content for the benefit of itself and its clients.
4. Warranties.
4.1. Services Warranty.
CredSpark provides no warranty of any kind to User for any Services regarding User’s use of the Software, nor for the accuracy of any information contained in any documentation related to the Software.
4.2. Ownership Warranty.
CredSpark warrants that CredSpark owns or has acquired rights to all proprietary interests in the Software and the Documentation necessary to grant the licenses and rights in these Terms and Conditions.
4.3. Limited Warranty.
EXCEPT AS EXPRESSLY STATED OTHERWISE IN THESE TERMS AND CONDITIONS, CREDSPARK DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CREDSPARK AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR AND MAKE NO REPRESENTATIONS WITH REGARD TO THIRD PARTY CLAIMS OR CLAIMS RELATING TO NETWORK OPERATIONS, COMPUTER HARDWARE, PERIPHERALS THAT ARE USED EITHER IN CONJUNCTION WITH THE SOFTWARE OR TO SUPPORT THE OPERATION OF THE SOFTWARE.
5. Indemnification by User.
(a) User shall defend, indemnify and hold harmless CredSpark, its affiliates, directors, officers and employees from any and all claims, suits, actions, damages, judgments and costs (including reasonable attorney fees) arising out of any (i) damage, destruction or loss of any property, or (ii) injury to or death of any person, which in either case results from or arises out of grossly negligent or willful acts or omissions of User, its officers, agents or employees, in the performance of User’s obligations under these Terms and Conditions.
(b) User will indemnify, hold harmless and, at CredSpark’s request, defend CredSpark and CredSpark’s affiliates, directors, officers and employees from and against any loss, cost, liability, expense, including reasonable attorneys’ fees and expenses, incurred by or asserted against CredSpark, arising out of a third party claim due to User’s installation or use of the Deliverables or any violation of User’s obligations hereunder, including without limitation any claims that the Quiz Content infringes the intellectual property rights or other proprietary rights of any third party.
6. User Responsibilities.
In addition to the obligations of User as otherwise specified in these Terms and Conditions, User is solely responsible for the following:
(a) Unless otherwise provided in the Schedules, procuring all computer hardware, peripherals, third party operating systems, and other third-party software that may be required to operate the Software;
(b) The compatibility of User’s computer hardware, peripherals, third party operating systems, and other third-party software with the Software;
(c) The use and operation of the Software, using personnel qualified to operate the Software and who are familiar with the information, calculations and reports that serve as input and output of the Software;
(d) Unless otherwise provided in the Schedules, the maintenance and support of User’s hardware, peripherals, third party operating systems, third party software, and the Deliverables;
(e) The results obtained from use and operation of the Deliverables; and
(f) Unless otherwise provided in the Schedules, all User data entry and maintenance of User source data and maintaining back-up or archival copies thereof.
7. Confidential Information.
(a) CredSpark may disclose to User certain Confidential Information, defined below, of CredSpark or CredSpark’s associated companies or suppliers (which includes licensors). User acknowledges that the Software and Documentation are commercially valuable, proprietary products of CredSpark or its licensors, the design and development of which reflect the effort of skilled development experts, the investment of considerable time and money, and contain Confidential Information. For purposes of these Terms and Conditions, “Confidential Information” means information about or belonging to CredSpark or its associated companies or licensors that is of value to its owner and is treated as confidential, including information concerning the Software and Documentation, operating procedures, pricing, methods of doing business, trade secrets, marketing and research, mailing lists, User lists and lists of prospective Users or accounts, financial data or plans, suppliers, or any other information relating to the affairs of CredSpark.
(b) User will hold the Confidential Information in confidence and will not, directly or indirectly, copy, reproduce, distribute, disclose, or cause to be disclosed the Confidential Information to any third party, or utilize the Confidential Information for any purpose whatsoever other than as expressly contemplated by these Terms and Conditions. User may disclose the Confidential Information to its employees, contractors, attorneys, accountants or financial advisors provided that such representatives are bound by confidentiality obligations that are at least as protective of such information as the terms provided herein. Screen displays and printouts of reports are not subject to the restrictions in this Section.
8. Compliance With Laws.
User will strictly comply with all applicable laws and regulations relating in any way to its performance under these Terms and Conditions and the use of the Deliverables.
9. Limitation of Liability.
EXCEPT FOR INDEMNITY OBLIGATIONS SET FORTH HEREIN, NEITHER CREDSPARK NOR ITS AFFILIATES SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, LOSS OF PROFITS, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO LOSS OF USE OR DATA), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING OUT OF THE USE OF THE DELIVERABLES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL CREDSPARK OR ITS AFFILIATES BE LIABLE TO USER IN ANY AMOUNT EXCEEDING $100.00.
10. Enhancements to Software.
CredSpark may from time to time release updated or enhanced versions of the Software intended for CredSpark’s Users generally.
11. Limitations and Exclusions.
CredSpark is not responsible for errors User relating to the following:
(a) Errors that result from improper handling or use of the Software by User or those third parties permitted by User to use the Software;
(b) Errors for which CredSpark has provided technical or operational corrections not implemented by User;
(c) Errors caused by changes, alterations or revisions made by or on behalf of User;
(d) Errors that result from User’s use of software or equipment not approved by CredSpark; and
(e) Problems caused by the User’s data, network, database, or operational or other environmental factors not within the direct control of CredSpark
12. Audit.
User shall keep complete and accurate records to allow CredSpark to examine and audit User’s user accounts with respect to User’s use of the Deliverables and other obligations under these Terms and Conditions. User agrees to permit CredSpark or, at its option, an auditor paid by CredSpark, to inspect such records at any time during the term of these Terms and Conditions.
13. Export Control.
User may not export, ship, transmit or re-export the Software.
14. Equitable Relief.
The breach by User of the terms set forth in these Terms and Conditions or the breach of Section 7 (Confidential Information) of these Terms and Conditions will result in irreparable harm to CredSpark for which no adequate remedy at law exists. Accordingly, upon any such breach, CredSpark will be entitled to seek injunctive or other appropriate extraordinary relief, such relief being in addition to, and not in lieu of, any other rights and remedies, including the award of damages, available at law or in equity.
15. Termination.
CredSpark may terminate User’s access to the Software at any time, for any reason, and without notice.
16. Force Majeure.
CredSpark will not be liable to User any failure or delay caused by any events beyond CredSpark’s control, including but not limited to acts of governmental or military authorities, acts of God, or terrorism (“Force Majeure”).
17. Governing Law.
THESE TERMS AND CONDITIONS ARE GOVERNED BY AND WILL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS.
18. Conflict Resolution.
All disputes relating to these Terms and Conditions will be solely and finally settled by litigation in the civil courts located in New York City, New York. Judgment on the civil award is final and binding and may be entered in any court of competent jurisdiction. The foregoing does not apply to the extent either party wishes to seek equitable relief for any breach of these Terms and Conditions.
19. Assignment.
User may not assign its usage of the Software to any third party under any circumstances.
20. Amendments
CredSpark may amend these Terms and Conditions from time to time.
21. Miscellaneous.
(a) Except as otherwise restricted in these Terms and Conditions, these terms are binding upon and inure to the benefit of the parties and their successors and permitted assigns.
(b) All waivers must be in writing to be effective and will not be deemed to have continuing effect.
(c) In case any one or more of the provisions of these Terms and Conditions should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
(d) Headings of particular Sections are inserted only for convenience and are not to be used to define, limit or construe the scope of any term or provision of these Terms and Conditions. All references to Sections include all subsections unless expressly provided otherwise.
(e) Should any provision of these Terms and Conditions require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the Terms and Conditions shall be more strictly construed against one party than against another.
(f) For the purposes of these Terms and Conditions, “including” and its derivatives (such as “include” and “includes”) means “including, without limitation,” whether or not capitalized.
(g) No modification, extension or waiver of or under these Terms and Conditions shall be valid unless made in writing and signed by an authorized representative of the party sought to be charged therewith.
(h) Nothing in these Terms and Conditions shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.
(i) These Terms and Conditions supersede all prior or contemporaneous agreements, negotiations, representations and proposals, written or oral, with respect to the subject hereof.
(j) Acceptance of these Terms and Conditions does not constitute acceptance of any conflicting terms and conditions and shall prevail over any conflicting or additional provision of any purchase order or any other instrument of User, it being understood that any purchase order issued by User shall be for User’s convenience only. Acknowledgment of a User’s purchase order by CredSpark does not constitute acceptance of any such conflicting or additional terms and conditions.
(k) These Terms and Conditions may only be modified by a writing executed by an authorized employee of CredSpark.
