These Terms of Service (this “Agreement”) constitutes a legally binding contract between BSPK, Inc., a company with an address of 650 Fremont Av. Ste B Box 105 Los Altos, CA 94024, USA (“BSPK,” “Company,” “we,” “us,” “our”) and you with respect to your use of our services, APIs, websites, or mobile applications (collectively, the “Service”).
It is important that you carefully read and understand the terms and conditions of this Agreement. BY ACCESSING OR USING THE COMPANY WEBSITE, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE COMPANY WEBSITE. BY USING THE SERVICE, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE OR REGISTER AN ACCOUNT OR WITH GLADLY.
If you register an Account on behalf of a company, principal, or other entity, you represent that you have authority to bind such entity and its affiliates to this Agreement and that it is fully binding on them. In such case, the term “you” will refer to such entity and its affiliates. If you do not have authority, you may not access or use the Service. Be advised that this Agreement contains disclaimers of warranties and limitations on liability that may be applicable to you.
Notice Regarding Dispute Resolution: This Agreement contains provisions that govern how claims you and Gladly have against each other are resolved (see Section 9 (Limitation of Liability), Section 13 (Dispute Resolution), and Section 14 (Choice of Law and Forum) below). It also contains an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the agreement to arbitrate in accordance with Section 13(D). Unless you opt-out: (A) you will only be permitted to pursue claims against BSPK on an individual basis, not as part of any class or representative action or proceeding and (B) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1. Changes to this Agreement
We reserve the right to, at any time, with or without cause:
change the terms and conditions of this Agreement;
change the Service, including eliminating or discontinuing any service or other feature of the Service; or
deny or terminate your use of and/or access to the Service.
We will notify you of any material changes to the terms and conditions of this Agreement or to any service or other feature of the Service. You must accept such changes in order to continue to use and access the Service. If you do not accept such changes your use and/or access to the Service will be terminated.
2. Use of the Service
We reserve the right to decline to provide the Service to any person for any or no reason. If and when you provide information to BSPK, you agree to: (a) provide accurate, current, and complete information as prompted (including your e-mail address) and (b) maintain and update your information (including your e-mail address) to keep it accurate, current, and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, we reserve the right to terminate this Agreement and your use of the Service. By providing BSPK with your email address or other contact information, you consent to our use of this information to send you Service-related notices and other administrative notices, including any notices required by law. You are solely responsible for the activity that occurs on your Account. You must keep your Account credentials (including username and password) secure at all times. You may not share your Account with any third parties without BSPK’s prior written consent unless such third party has separately entered an agreement with BSPK permitting it to access your Account. You must notify BSPK immediately of any breach or suspected breach of security or unauthorized use of your Account. BSPK will not be liable for any losses caused by any unauthorized use of your Account. You represent and warrant that you have the full right, power, and authority to enter into and perform this Agreement without the consent or approval of any third party.
3. Rules Governing Your Use of the Service
You may not use the Service, or assist or encourage any other party, to engage in any of the following prohibited activities:
Copying, framing, or mirroring any part of the Service;
Accessing the Service for purposes of monitoring its availability, performance, or functionality;
Permitting any third party to access the Service;
Using, copying, modifying, creating a derivative work of, reverse engineering, decompiling, or otherwise attempting to extract the source code of the software underlying the Service or any part thereof, unless expressly permitted or required by law, and in any case, without providing prior written notice to BSPK;
Publishing, transmitting, distributing, or storing content, material, information, or data that: (a) is illegal, obscene, defamatory, libelous, threatening, harassing, abusive, or hateful or that advocates violence or threatens the health of others; (b) is harmful to or interferes with the Service or any third party’s networks, equipment, applications, services, or websites (e.g., viruses, worms, Trojan horses, etc.); (c) infringes, dilutes, misappropriates, or otherwise violates any privacy, intellectual property, publicity, or other personal rights including, without limitation, copyrights, patents, trademarks, trade secrets, or other proprietary information (including unauthorized use of domain names); or (d) is fraudulent or contains false, deceptive, or misleading statements, claims, or representations (such as “phishing”);
Attempting to disrupt, degrade, impair, or violate the integrity or security of the Service or the computers, services, accounts, or networks of any other party (including, without limitation, “hacking,” “denial of service” attacks, etc.), including any activity that typically precedes attempts to breach security such as scanning, probing, or other testing or vulnerability assessment activity, or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of BSPK internet protocol space;
Avoiding payment of incurring charges or fees payable by you with respect to the Service;
Copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”;
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 Gladly than a human can reasonably produce in the same period of time by using a conventional web browser;
Taking any action that imposes, or may impose, at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
Collecting or harvesting any personally identifiable information, including account names, from the Service;
Using the Service for any commercial solicitation purposes;
Impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
Accessing any content on the Service through any technology or means other than those provided or authorized by the Service;
Submitting to the Service or to BSPK any personally identifiable information, except as necessary for the establishment and operation of your Account;
Submitting to the Service or to BSPK any information that may be protected under HIPAA (“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented) or any other information that may be protected from disclosure by applicable law;
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;
Violating any applicable law, statute, ordinance, or regulation, or encourage any conduct that could constitute a criminal offense or give rise to civil liability;
Transmitting any trade secret or other material, non-public information about any person, company, or entity without the authorization to do so;
Removing any copyright, trademark, or other proprietary rights notices contained in or on the Service;
Sub-licensing selling, renting, leasing, transferring, assigning, or conveying any rights under this Agreement to any third party, except as expressly permitted herein;
Executing any form of network monitoring or running a network analyzer or packet sniffer or other technology to intercept, decode, mine, or display any packets used to communicate between the Service’s servers or any data not intended for you; and/or
Harvesting or collecting information about any Service visitors or members without their express consent.
Improper use of the Service may result in termination of your access to and use of the Service, and/or civil or criminal liabilities. You agree to use the Service in accordance with all applicable laws.
4. Intellectual Property
Subject to the terms and conditions of this Agreement (including any restrictions on any applicable authorization or order form), you are hereby granted a non-exclusive, non-transferable, non sub-licensable, and revocable license to access and use the Service solely for your own internal use. BSPK reserves all rights not expressly granted herein in the Service. Except as expressly set forth herein, no rights or licenses are granted to you under this Agreement, whether by implication, estoppel, or otherwise.
User Content You agree that BSPK may store User Content in order to provide the Service. BSPK aggregates User Content with other data and also collects technical information and data about your use of the Service. You expressly agree that BSPK may use any aggregated and anonymized data for any purpose during or after the term of this Agreement, including, without limitation, to develop and improve the Service or other Gladly services and products. For more information about BSPK’s policies related to personal data, please see BSPK’s
Feedback and Improvements
You may choose to or we may invite you to submit comments, suggestions, feedback, or ideas about the Service, including, without limitation, about how to improve the Service or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction. We are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. BSPK will be free to use, disclose, reproduce, license, distribute, modify, perform, display, and exploit the Feedback you provide, without any restriction of any kind on account of intellectual property rights or otherwise. You further acknowledge that, by acceptance of your submission, BSPK does not waive any rights to use similar or related ideas previously known to BSPK, or developed by its employees, or obtained from sources other than you.
The Service is owned and operated by BSPK, and the Service (and any intellectual property and other rights relating thereto) is and will remain the property of BSPK and its licensors and suppliers. The Service may be used solely (a) to the extent permitted in this Agreement or (b) as expressly authorized in writing by authorized representatives of BSPK or, if so indicated in writing by BSPK, its licensors or suppliers. Use of the Service for any other purpose is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Service. The trademarks, logos, and service marks displayed on the Service (collectively, the “Company Trademarks”) are the registered and unregistered trademarks of BSPK, BSPK’s licensors and suppliers, and/or others. Nothing contained in this Agreement or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Company Trademark(s) without the express written permission of BSPK, BSPK’s licensors or suppliers, or the third-party owner of any such Company Trademark. Subject to the rights granted to BSPK in this Agreement, as between you and BSPK, you retain all right, title, and interest in and to your User Content.
5. Third-Party Links
6. No Use by Children under 13
You hereby affirm that you are over the age of thirteen (13), as the Service is not intended for children under 13. If you are under 13 years of age, then you may not use the Service. You further affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
7. Term & Termination
This Agreement is effective from the date on which you first access the Service or submit any User Content to BSPK, whichever is earlier, and shall remain effective until terminated in accordance with its terms. Gladly may immediately terminate this Agreement, and/or your access to and use of the Service, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. BSPK may also terminate this Agreement immediately if you fail to comply with any term or provision of this Agreement. Upon termination of this Agreement by either party, your right to use the Service shall immediately cease and you shall cease all use of the Service. Upon termination or expiration of this Agreement for any reason, Sections 1, 2, 3, 4(B), 4(C) and 5–17 shall survive. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part or portion thereof, with or without notice to you. You agree that we shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service, or any part of portion thereof. Nothing in this Agreement shall be construed to obligate BSPK to maintain and support the Service, or any part or portion thereof, during the term of this Agreement.
THE SERVICE IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE SERVICE IS CURRENT AND/OR UP-TO-DATE ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. THERE IS NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT THE SERVICE, OR YOUR USE OF THE SERVICE, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE SERVICE, OR ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM THE SERVICE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE SERVICE AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICE, AND YOUR RELIANCE THEREON.
9. Limitation of Liability
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER GLADLY NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SERVICE, AND/OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. BSPK’S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). NEITHER BSPK NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES WILL HAVE ANY LIABILITY TO YOU FOR ANY DAMAGES, EXPENSES, OR OTHER LIABILITY INCURRED BY YOU AS A RESULT OF ANY INACCURACY, INCOMPLETENESS, OR MISREPRESENTATION OF ANY INFORMATION, CONTENT, POSTINGS, OR SUBMISSIONS PROVIDED OR POSTED ON THE SERVICE BY THIRD PARTIES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You (and also any third party for whom you operate an account on the Service) agree to fully indemnify, defend (at BSPK’s request), and hold BSPK, our licensors, suppliers, agents, successors, and assigns, and our and their directors, officers, employees, consultants, and other representatives (collectively, the “Company Parties”) harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and other expenses that arise directly or indirectly out of or from: (a) your actual or alleged breach of this Agreement; (b) any allegation that any User Content or other materials you submit to us or transmit to the Service infringe, misappropriate, or otherwise violate the copyright, patent, trademark, trade secret, or other intellectual property or other rights of any third party; (c) your activities in connection with the Service or other websites to which the Service is linked; (d) your negligence or willful misconduct; (e) your use of the results, content, data, or information provided via the Service; (f) any service or product offered by you in connection with or related to your use of the Service; and/or (g) your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities.
11. Jurisdictional Issues
BSPK makes no representation that the Service operates (or is legally permitted to operate) in all geographic areas, or that the Service is appropriate or available for use in other locations. Accessing the Service from territories where the Service or any content or functionality of the Service or portion thereof is illegal is expressly prohibited. If you choose to access the Service, you agree and acknowledge that you do so on your own initiative and at your own risk, and that you are solely responsible for compliance with all applicable laws. The Service is a global service and in some cases, the Service may be operated from the United States. If you are located outside of the United States and choose to use the Service or provide your User Content to us, your User Content may be transferred, processed, and stored in the United States. U.S. privacy laws may not be as protective as those in your jurisdiction. Your agreement to the terms of this Agreement followed by your submission of your User Content in connection with the Service represents your agreement to this practice. If you do not want your User Content transferred to or processed or stored in the United States, you should not use the Service.
12. Notice for California Users
Under California Civil Code Section 1789.3, California Service users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
13. Dispute Resolution
The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to BSPK’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) or if you opt out of this agreement to arbitrate, all claims arising out of or relating to this Agreement and your use of the Service shall be finally settled by binding arbitration administered in accordance with the then current provisions of its procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, BSPK will pay the additional cost. You and BSPK hereby expressly waive trial by jury. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if BSPK is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes. Exception—Litigation of Small-Claims-Court Claims Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction. Thirty-Day Right to Opt Out You have the right to opt out and not be bound by the arbitration- and class-action-waiver provisions set forth in this section by sending written notice of your decision to opt out to the following address: firstname.lastname@example.org. The notice must be sent within 30 days of registering to use the Service; otherwise, you shall be bound to arbitrate disputes in accordance with this Agreement. If you opt out of these arbitration provisions, BSPK also will not be bound by them. In addition, if you elect to opt out of these arbitration provisions, BSPK may terminate your use of the Service.
Time Limitation on Claims
You agree that any claim you may have arising out of or related to your relationship with BSPK and this Agreement must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
14.Choice of Law and Forum
This Agreement and your relationship with BSPK Parties shall be governed by, and construed and interpreted in accordance with, the laws of the State of California without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to Section 13, the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in San Francisco, California and you consent to the exclusive jurisdiction of the federal or state courts located in San Francisco, California.
15. U.S. Government Restricted Rights
The Service shall be deemed “commercial computer software” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the Service by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. This is the entire Agreement between you and us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between you and us with respect to such subject matter. This Agreement may not be changed, waived, or modified except by a written instrument signed by BSPK. If any employee of BSPK offers to modify this Agreement, he or she is not acting as an agent for BSPK or speaking on BSPK’s behalf. You may not rely, and should not act in reliance on, any statement or communication from an employee of BSPK or anyone else purporting to act on BSPK’s behalf. Except as otherwise set forth in this Agreement, this Agreement is between you and BSPK; there are no third-party beneficiaries. You are responsible for compliance with all applicable laws and regulations, including, but not limited to, United States export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. Neither this Agreement nor any right, obligation, or remedy hereunder is assignable, transferable, delegable, or sub-licensable by you except with BSPK’s prior written consent, and any attempted assignment, transfer, delegation, or sublicense shall be null and void. BSPK may assign, transfer, or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Except as explicitly stated otherwise, legal notices shall be served on BSPK at email@example.com (in the case of BSPK). Notice to you shall be deemed given 24 hours after the e‑mail is sent. Any heading, caption, or section title contained in this Agreement is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. The Service is Operated By BSPK, Inc.
BSPK, January 2021