Last updated: 11.19.2024
These Brand Terms of Service (this “Agreement”) govern your or the company or entity on whose behalf you entered this Agreement (“Customer”) use of the interior design technology platform specifically for brands (as more fully described below as, and which are, the “Services”) as made available via the www.spoak.com, app.spoak.com, and brand.spoak.com website (“Site”) by Spoak Decor Inc. (“Spoak”). Spoak and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
- AGREEMENT TO TERMS AND CONDITIONS.
This Agreement is effective, and Customer agrees to be bound by this Agreement, on the earlier of the date (i) which Customer first creates a “Brand Account” (i.e., a brand-specific account which has access to Spoak’s brand-specific tools and functionality, but not Spoak’s design-specific tools and functionality) via the Site (“Account”); or (ii) which Customer checks the box to accept this Agreement; or (iii) signs an agreement with Spoak (“Effective Date”). IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER, THEN SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND CUSTOMER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. - DEFINITIONS.
(a) “Authorized Users” means employees, agents, and contractors authorized by Customer to use the Services.
(b) “Spoak IP” means the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services, Documentation and Aggregate Data (as defined below), all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
(c) “Documentation” means the documentation relating to the Services if and as provided by Spoak to Customer (including any revised versions thereof), which may be updated from time to time upon notice to customer.
(d) “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
(e) “Services” means the online technology platform for “brand” users which is designed to allow such brand users to upload their product catalog and render templates and visuals of rooms and areas with such furniture and products, and which includes online tools related to visualization, advertising, and other marketing tools - PRIVACY POLICY. Please review Spoak’s Privacy Policy, available at https://www.spoak.com/terms/privacy-policy, which also governs how Spoak collects, uses and shares Customer’s and Authorized Users’ information.
- ACCESS AND USE.
(a) Services. Subject to the terms and conditions of this Agreement, Spoak hereby grants Customera limited, non-exclusive, non-transferable (except in compliance with Section 13(b)) right to use (and permitAuthorized Users to and use) the Services in accordance with the Documentation and the terms of thisAgreement.
(b) Use Restrictions. Customer will not and will not permit any person or entity (including, without limitation, Authorized Users) to, directly or indirectly: (i) copy, modify or create any derivative work of any portion of the Services or the Documentation; (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Services to any other person or entity, or otherwise allow any person or entity to use the Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (iv) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any person or entity, or that violates any applicable law; (v) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (vi) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Services features provided by Spoak for use expressly for such purposes; or (vii) use the Services, Documentation or any other Spoak Confidential Information to develop, commercialize, license or sell any product, service or
technology that could, directly or indirectly, compete with the Services.
(c) Authorized Users. Customer may permit Authorized Users to use the Services in accordance with the Documentation and the terms of this Agreement, provided that Customer is responsible for all acts or omissions by its Authorized Users in connection with their use of the Services and their compliance with the terms and conditions of this Agreement, including, without limitation, with Customer’s obligations and the
restrictions set forth in Section 4(b).
(d) Ownership of Spoak IP. Subject to the limited rights expressly granted hereunder, Spoak reserves and, as between the Parties will solely own, the Spoak IP and all rights, title and interest in and to the Spoak IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
(e) Feedback. From time to time Customer or its employees, contractors, representatives may provide Spoak with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). Customer hereby grants Spoak a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Spoak’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services. For clarity, Feedback is not considered Confidential Information (as defined below).
(f) Third-Party Services. Certain features and functionalities within the Services may (i) allow Customer and its Authorized Users to interface or interact with, access and/or use compatible, and/or (ii) integrate with and depend upon third-party services, products, technology and content (collectively, “Third-Party Services”). Spoak does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. - FREE USERS. Certain limited portions of the Services may be available free of charge to Customer. If Customer does not access or use features or functionality of the Services which require payment of fees, and Customer does not purchase a Subscription, then Section 6 will not apply to Customer.
- FEES. Certain features or functionality of the Services require Customer to pay a fee through the purchase of a subscription (“Subscription”), and if Customer wishes to use such features or functionality, then Customer agrees to pay the Subscription fees associated with the Subscription tier as Customer selects via the Services (e.g., via its Account). These features or functionality may include, for example (and without limitation), certain “brand tools” under Spoak’s “For Brands” via the Site, or other tools such as product import, catalog connect, visualization tools, advertising tools, and other marketing tools.
(a) Transactions; Payments. If Customer purchase a Subscription (a “Transaction”), Customer expressly authorizes Spoak (or Spoak’s third-party payment processor) to charge Customer for such Transaction. Spoak may request from Customer additional information relevant to Customer’s Transaction, including Customer’s credit card number, the expiration date of its credit card and Customer’s email and postal addresses for billing and notification (such information, “Payment Information”), and in such case Customer agrees to promptly furnish such Payment Information to Spoak. Customer represents and warrants that it has the legal right to use all payment method(s) represented by any such Payment Information. When Customer initiates a Transaction, Customer authorize Spoak to provide Customer’s Payment Information to third parties so Spoak can complete Customer’s Transaction and to charge Customer’s payment method for the type of Transaction corresponding with the Subscription which Customer has selected (plus any applicable taxes and other charges). Customer may need to provide additional information to verify its identity before completing a Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, Customer agrees to the pricing, payment, and billing policies applicable to such fees and charges, as posted or otherwise communicated to Customer. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
(b) Subscriptions. Subscriptions are offered on an annual term basis, and charged monthly. If Customer purchases a Subscription, Customer will owe the annual Subscription fee, charged on a monthly basis, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of the Subscription and each month thereafter, at the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, CUSTOMER AUTHORIZES SPOAK TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If Customer purchases a Subscription, Spoak (or its third-party payment processor) will automatically charge Customer each month beginning on the date of commencement of the Subscription, using the Payment Information which Customer has provided until Customer cancels its Subscription. By agreeing to these Terms and electing to purchase a Subscription, Customer acknowledge that its Subscription has recurring payment features and Customer accepts responsibility for all recurring payment obligations prior to cancellation of its Subscription by Customer or Spoak pursuant to Section 6(c) or 11(b).
(c) Cancelling Subscription. Customer may request a cancellation of a Transaction from Spoak, which Spoak may approve or deny in its sole discretion. If Spoak does not approve a cancellation request (or if not such request is made), then CUSTOMER’S PURCHASE IS FINAL AND CUSTOMER WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF ANY SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, Spoak reserves the right to cancel one or more Transactions for any reason; if Spoak cancels Transaction, Spoak will refund any payment remitted by Customer to Spoak for such Transaction. Without limiting the foregoing, Customer may cancel its Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period (e.g., at the end of the applicable annual Subscription term). EXCEPT AS SET FORTH ABOVE WITH RESPECT TO CUSTOMERS INITIAL SUBSCRIPTION PURCHASE, CUSTOMER WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, Customer may send an email to support@spoak.com. Customer is responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If Customer cancels, Customer’s right to use the Services will continue until the end of the then-current Subscription period and will then terminate without further charges.
(d) Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Spoak hereunder, other than any taxes imposed on Spoak’s income. - CUSTOMER MATERIALS. Customer hereby grants Spoak and its licensors a non-exclusive, worldwide, royalty-free right and license to use, reproduce, display, perform and modify the Customer Materials for the purpose of (i) hosting, operating, improving and providing the Services, (ii) training computational algorithms, machine learning models, and neural networks, and creating outputs and datasets, and (iii) creating or developing Aggregate Data. As between Customer and Spoak, Customer owns and retains all right, title and interest in and to all Customer Materials. “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Services or to Spoak in connection with Customer’s use of the Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Spoak and made available through or in connection with the Services. “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ use of the Services, including, without limitation, any usage data or trends with respect to the Services.
- CONFIDENTIAL INFORMATION.
(a) Confidentiality. “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Services and the Documentation will be deemed Confidential Information of Spoak. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Spoak may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (i) to those of its employees, contractors, agents and advisors who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
(b) Exclusions. Confidential Information will not include any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party that can be evidenced in writing; or (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure. - PUBLICITY. Spoak may use or refer to Customer’s name, trademarks, service marks, and/or logos in its marketing materials, business development activities, press releases or other publicity-related matter for the purpose of marketing, publicizing or promoting Spoak’s business, including the Services.
- REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
(a) Mutual Representations. Each Party represents and warrants to the other Party that: (i) it has full power and authority to enter into this Agreement; and (ii) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents.
(b) Customer Additional Representations. Customer represents and warrants that Spoak’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or infringe or violate any intellectual property or other rights of any third party or cause a breach of any agreement or obligations between Customer and any third-party.
(c) Disclaimer. THE SERVICES AND OTHER SPOAK IP ARE PROVIDED ON AN “AS IS” BASIS, AND SPOAK MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER OR TO ANY OTHER PARTY REGARDING THE SPOAK IP, THE SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. - TERM AND TERMINATION.
(a) Term. This Agreement shall commence on the Effective Date and will remain in effect unless and until terminated in accordance with the terms herein (the “Term”).
(b) Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Further, Spoak may suspend or terminate Customer’s access to and use of the Service, and/or Customer’s Account, in its sole discretion at any time with notice to Customer, whereby this Agreement will automatically terminate. If Customer has not purchased a Subscription, Customer may cancel its Account at any time by sending Spoak an email at support@spoak.com, whereby this Agreement will terminate effective on the date which Spoak notifies Customer that its Account has been cancelled. If Customer has purchased a Subscription, Customer may not cancel its Account or terminate this Agreement for convenience unless it has cancelled its Subscription in accordance with Section 6(c).
(c) Survival. The following Section will survive termination or expiration of this Agreement for any reason: Sections 2, 3, 4(b), 4(d), 4(e), 4(f), 6, 7, 8, 10(c), 11(c), 11(d), 12, 13, and 14.
(d) Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted to Customer pursuant to Section 4(a) will terminate; and (ii) Customer will return or destroy, at Spoak’s sole option, all Spoak Confidential Information in its possession or control, including permanent removal of such Spoak Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Spoak’s request, certify in writing to Spoak that the Spoak Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all fees (including without limitation Subscription Fees) that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund. - LIMITATION OF LIABILITY.
(a) Limitation of Liability. EXCEPT FOR (I) ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
(b) Total Liability. IN NO EVENT WILL SPOAK’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS ARISING FROM ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SPOAK IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THIS AGREEMENT, LESS ALL AMOUNTS PAID BY SPOAK TO CUSTOMER FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT SPOAK WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. - INDEMNIFICATION.
(a) Indemnification by Spoak. Subject to Section 13(b), Spoak will defend Customer against any claim, suit or proceeding brought by a third-party (“Claims”) alleging that Customer’s use of the Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Spoak (including reasonable attorneys’ fees) resulting from such Claim.
(b) Exclusions. Spoak’s obligations under Section 13(a) will not apply if the underlying Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Services that have been provided by Spoak; (iv) modifications to the Services by anyone other than Spoak; (v) combinations of the Services with software, data or materials not provided by Spoak; or (vi) Customer’s continued use of a prior version of the Services that has been superseded by a non-infringing version subsequently released by Spoak.
(c) Indemnification by Customer. Customer will defend, indemnify and hold harmless Spoak from and against any damages and liabilities (including court costs and reasonable attorneys’ fees) awarded in a final judgment against Spoak, and amounts agreed to in settlement with respect to each of the foregoing, to the extent arising from a Claim against Spoak that: (i) the Customer Materials or its use by Spoak in accordance with this Agreement infringes, misappropriates or violates a third-party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation; (ii) is based on Customer’s or an Authorized User’s use of the Services or Documentation to the extent such use was not in accordance with this Agreement; (iii) is based on the manufacture, sale, distribution or marketing of any Customer’s products or services; or (iv) is based on a breach of Section 4(b) by Customer. - GENERAL.
(a) Entire Agreement. This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the parties.
(b) Assignment. Customer may not assign or transfer this Agreement, by operation of law or otherwise, without Spoak’s prior written consent. Spoak may freely assign or transfer this Agreement without consent. Any attempt to assign or transfer this Agreement without such consent will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
(c) Notices. All notices required to be sent hereunder will be in writing (email being sufficient) and will be deemed to have been given when mailed by United States Postal Service Priority Express Mail, with delivery confirmation, postage prepaid, or sent by email, and if sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party.
(d) Relationship of the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.
(e) Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
(f) Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
(g) Export Regulation. Customer will comply with all applicable export, sanctions and foreign corruption laws and regulations of the United States (“Trade Laws”) to ensure that the Services are not: (i) exported or re-exported directly or indirectly in violation of Trade Laws; or (ii) used for any purposes prohibited by the Trade Laws.
(h) Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Hudson, New York and the Parties irrevocably consent to the personal jurisdiction and venue therein.
