Last Updated: August 10, 2022
Date: The date in which you have clicked through to accept the terms of this Agreement
Between: SparkTech Enterprises Ltd. (“SparkLoop”) and you (“Partner,” “Media Brand” or “You” (as applicable))
- Purpose of the SparkLoop Partnerships Platform
SparkLoop has created an online platform for matching partners with media brands. By using the Platform, you agree and acknowledge that SparkLoop may connect such Partners with Media Brands as may be necessary to achieve each party’s respective goals. Media Brands and Users shall collectively be referred to herein as “Users”. On and through the Platform, Partners and Media Brands may engage in the following ways, which functionalities may be amended, revised and/or expanded upon from time to time, in SparkLoop’s sole discretion.
SparkLoop’s Partnerships Platform enables Users to request services based on the following types of partnerships:
Functionality 1: Custom Partner Campaigns
Partners and Media Brands may use the SparkLoop Partnerships Platform to discover each other, match, and collaborate via promotional activities both free and paid. SparkLoop allows for the tracking of performance metrics and payments owed — however SparkLoop takes no responsibility for facilitating payments or the success of custom partner campaigns.
Functionality 2 – Partner Programs & Partner Network
Users may create a Partner Program with a guaranteed payout per valid new email subscriber they receive from invited partners. Partners may be invited by Media Brands to join a specific Partner Program directly, or apply to join the Partner Network, where — if approved — they can join available Partner Programs without prior approval from the Media Brand. Users are responsible for performance and any fees incurred. SparkLoop facilitates payments for the Partner Program via Stripe Connect and PayPal as applicable.
- Payment; Software Integration
Software – Stripe Integration
You hereby agree and acknowledge that you have created, or shall have created prior to entering into any agreement with any Media Brands on the Platform, a Stripe Account on Stripe Connect, and that you shall be subject to all terms, conditions and obligations of Stripe Connect (or such other processor) users. You further agree and acknowledge that upon creating a Stripe Account such account shall be deemed a “Connected Account” under the Stripe Connect agreement located here: https://stripe.com/connect-account/legal; provided, that by creating an account on the Platform, you hereby expressly authorize SparkLoop to integrate Stripe Connect for purposes of facilitating the transactions set forth herein. In support thereof, you further authorize Stripe to send any and all notices and forms, including without limitation, tax invoices, to SparkLoop with respect to any payment amounts that are withheld upon transfer for purposes making applicable tax withholdings. Notwithstanding the foregoing, to the extent that SparkLoop receives such forms or notices from Stripe, SparkLoop shall promptly make all such documentation available to you on your account.
Payments - Generally
You hereby agree that all payments shall be paid and accepted only through a payment mechanism provided or approved by SparkLoop (an “Approved Payment Mechanism”), which terms are set forth below unless separately agreed to by SparkLoop.
Partner Program Payments
Upon engaging in the Partner Network and any Partner Program, Partner agrees to pre-approved newsletter promotional deals in which a Media Brand has agreed to pay to Partner a certain cash payment per valid new subscriber conversion. Once per month, the applicable Media Brand will receive an invoice from SparkLoop and pay to any such Partner amounts due based on the total number of conversions. The Media Brand is responsible for paying the amounts set forth in the invoice to SparkLoop, which keeps its SparkLoop Platform Fee of 20% or such other amount reasonably determined by SparkLoop in its sole discretion, and remits the balance to Partner via transfer on Stripe from SparkLoop’s Stripe Account to Partner’s Stripe Account. Such transfers shall be subject to a Payment Processing Fee of 3.5%, unless otherwise determined by SparkLoop in its sole and reasonable discretion.
All fees shall be determined in respect of each particular campaign and shall not be changed, modified or amended without the express written consent of SparkLoop. If User becomes responsible under this Agreement to make any payments and fails to pay such amounts when due, User shall be responsible to SparkLoop for all amounts due, plus any applicable processing fees, charges or penalties, collection costs (including but not limited to attorneys’ fees), and interest on the unpaid amount at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law.
Notwithstanding the foregoing, SparkLoop shall in no event be responsible for (1) recovering or making any unpaid payments due to any party hereunder, or (2) making any payments under any campaign or functionality offered on its Platform to any User that has violated the terms of this Agreement or the Terms of Service or if otherwise contrary to, or in violation of, applicable law. The User hereby agrees and acknowledges that to the extent applicable, SparkLoop shall only transfer amounts to the applicable User hereunder if, as and when paid by the applicable Media Brand and/or Stripe in accordance with the terms of the particular campaign.
- User Obligations and Agreements
Media Brand agrees to make payments using the Approved Payment Mechanisms within 10 days of invoice. To the extent Partner disputes the Media Brand’s report or any findings or results set forth therein, Partner shall notify Media Brand of any such dispute or discrepancy and such parties shall use good faith efforts to resolve such issues.
- Communications with Users; No Disintermediation
All written communications between User and other Users who match via the SparkLoop Partner Network must be conducted through the Platform or communication devices designated by SparkLoop in writing. All such communications may not contain any requests to circumvent the Platform or the communication devices designated by SparkLoop in writing. All payments shall be made using the Approved Payment Mechanisms set forth above.
During the term of this Agreement and for a period of ten (10) years after its expiration or termination (the “Exclusivity Period”), User shall (i) purchase all services relating to, or in any way connected with, any campaign or related matchmaking advertising service in accordance with the terms of this Agreement between any Media Brands and Partners on the Platform and (ii) not directly or indirectly solicit, contact or engage any Media Brand or Partner, as applicable, for purposes of performing services similar to those provided hereunder. Any action during the Exclusivity Period by User that encourages, facilitates or solicits complete or partial payment outside of this Agreement or otherwise solicits for service engagement or any other similar business relationship with a User for services similar to those provided hereunder shall constitute a material violation of this Agreement (a “Disintermediation Violation”). The User hereby agrees to pay to SparkLoop liquidated damages for any Disintermediation Violation, in an amount equal to 10% of all fees paid by Media Brand in connection therewith. The parties hereto further acknowledge that (a) the amount of loss or damages likely to be incurred by SparkLoop for any Disintermediation Violation by User is impossible or difficult to precisely estimate, (b) the amounts specified herein bear a reasonable proportion and are not plainly or grossly disproportionate to the probable loss likely to be incurred by SparkLoop, and (c) the parties are sophisticated business parties and have been represented by sophisticated legal and financial counsel and negotiated this Agreement at arm’s length. Liquidated damages shall be paid by User within ten (10) business days of User’s breach of this Section of the Agreement.
User agrees that by entering into this Agreement, User, for User and User’s predecessors, successors, and assigns (together, the “User Releasors”), releases and forever discharges SparkLoop and its predecessors, successors, assigns, agents, officers, directors, employees, subsidiaries, parents, affiliates, attorneys, contractors, and suppliers (together, the “SparkLoop Releasees”) from and against all actions, causes of action, claims, suits, debts, damages, judgments, liabilities, rights, contracts, obligations, and demands, whether now known or unknown, liquidated or unliquidated, that any of the User Releasors has, may have, has asserted, or could have asserted, of any nature and relating to any subject, excluding the right of User to enforce this Agreement according to its terms.
In addition, without limiting the generality of the foregoing, User, for the User Releasors, specifically releases and forever discharges the SparkLoop Releasees from and against all actions, causes of action, claims, suits, debts, damages, judgments, liabilities, rights, contracts, obligations, and demands, whether now known or unknown, liquidated or unliquidated, that any of the User Releasors has, may have, has asserted, or could have asserted, of any nature arising out of or in any way connected with any disputes User may have with any other User of the Platform.
- User Conduct, Content and other Agreements
You acknowledge, agree and understand that: (1) no User, including you, is an employee, agent, or representative of SparkLoop; (2) SparkLoop is not an employee, agent, or representative of any User, including you; (3) SparkLoop does not, in any way, supervise, direct, or control any User’s work; provided, that SparkLoop reserves the right to monitor progress and quality of any campaign initiated on the SparkLoop Platform; (4) SparkLoop shall not have any liability or obligations for any acts or omissions by any User and does not in any way guarantee results for any User hereunder, whether relating to performance, conversion or otherwise; (5) SparkLoop has no control over Users; and (6) SparkLoop makes no representations as to (a) the reliability, capability, honesty, qualifications, or other characteristics of any User or any User’s statements or conduct; or (b) the quality, safety, or legality of the contents of any newsletter or any other media on the Platform.
User agrees to be solely responsible for User’s conduct and activities on and regarding the Platform and any and all data, text, information, usernames, graphics, images, photographs, designs, renderings, fabrications, profiles, audio, video, items, and links that User submits, posts, or displays on or in connection with the Platform (together, “Content”).
User will not infringe upon or misappropriate any person’s or entity’s copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy. User will not transmit any worms or viruses or any code of a destructive nature.
- Warranty Disclaimer
SparkLoop makes no express or implied representations or warranties with regard to SparkLoop’s services, work products, SparkLoop resources, the Platform, any activities or items related to this Agreement, or business conducted, or services provided by or with the assistance of SparkLoop, all of which are provided “as is” and made at each User’s own risk. To the maximum extent permitted by law, SparkLoop disclaims all express or implied conditions, representations and warranties including, but not limited to, the warranties of merchantability, fitness for a particular purpose, and non-infringement. In addition, User agrees that no advice or information (oral or written) obtained by Users from SparkLoop shall create any warranty of any kind not expressly made herein.
SparkLoop makes no representations or warranties of any kind concerning any campaign, including but not limited to representations or warranties concerning the Users’ capabilities, honesty, reliability, trustworthiness, or abilities to pay.
Without limiting the generality of the foregoing, SparkLoop does not warrant or represent that your use of the Platform or interactions with other Users, will be consistent with your views or the views of your customers or business partners. SparkLoop does not have any control over the content of newsletters and other media created by Partners registered on the Platform. You understand and agree that SparkLoop does not assume, and expressly disclaims, any responsibility or liability for any damages to or reputational harm arising on account of your access to or use of the Platform and the services provided thereunder. You further understand and agree that SparkLoop does not assume and expressly disclaims, any responsibility or liability for any damage or harm that any of the campaigns causes to any property or person.
- Limitation of Liability
In no event shall SparkLoop, or its subsidiaries, parents, officers, directors, employees, agents, consultants, contractors, or suppliers be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, or incidental, arising out of or relating to SparkLoop’s services, your use of SparkLoop’s services or the Platform, the conduct of any User (whether tortious or otherwise) in connection with the use of the Platform by you or any other User, or this Agreement, including without limitation, lost profits, bodily injury, or emotional distress.
Notwithstanding the foregoing, to the extent SparkLoop is ever determined to be liable to you, you agree that SparkLoop’s liability, and (as applicable) the liability of SparkLoop’s subsidiaries, officers, directors, employees, agents, consultants, contractors, or suppliers, shall be limited to the total fees paid to SparkLoop in connection with services provided to you hereunder in the twelve (12) months prior to the action giving rise to liability.
These limitations shall apply to any liability arising from any cause of action whatsoever, whether in contract, tort (including negligence), strict liability, or otherwise, even if SparkLoop is advised of the possibility of such costs or damages, and even if the limited remedies provided herein fail of their essential purpose. In no event shall SparkLoop be liable to you, and you waive any right to seek from SparkLoop, consequential, punitive, exemplary or special damages, or damages for loss of use, interruption of business, or loss of data or profits.
User agrees to indemnify and hold SparkLoop and SparkLoop’s parents, subsidiaries, affiliates, officers, directors, consultants, suppliers, contractors, agents and employees harmless from any loss, expense, and damage, including but not limited to reasonable attorneys’ fees, arising out of or relating in any way to any claim or demand made, asserted, or threatened by any other person or entity and that arises out of or relates to User’s conduct or failure to act, User’s use of SparkLoop’s services, User’s use of the Platform, any failure to perform services by Partner or Media Brand, as applicable, any resulting losses by any such party or breaches of representations and warranties made thereby, including but not limited to claims or demands relating to User’s breach of this Agreement, failure to provide services under any campaign, failure to make payments in accordance with the terms set forth herein, violation or alleged violation of SparkLoop’s or others’ intellectual property rights, violation or alleged violation of any other rights of another, and violation or alleged violation of any law, regulation or representation, warranty or covenant hereunder.
- No Guarantee
SparkLoop may, in its sole discretion, remove, cease operating, change the functionality of, or otherwise modify its services and the Platform at any time.
SparkLoop does not guarantee that results of registering on the Platform and/or engaging in services offered thereunder will generate successful conversion, clicks, publicity or other metrics contemplated by the User. It is possible for a given implementation of the services provided hereunder to outperform, perform as expected, or underperform, with no guarantee. No Users of the Platform are responsible for “make-good” for services that performed in a way that was unexpected by such User.
SparkLoop does not guarantee continuous, uninterrupted, ongoing access to the Platform or any of the Platform’s features, and operation of the Platform may be interfered with or eliminated entirely by numerous factors outside SparkLoop’s control or at SparkLoop’s sole discretion.
- Legal Compliance; Disclaimers
User agrees to comply with all applicable laws when using and in relation to SparkLoop’s service or the Platform. User represents that such User is not subject to trade sanctions, embargoes or any other restriction on trade in the jurisdiction in which it does business as well as under the laws of the European Union, the laws of England and Wales, or the laws and regulations of the United States, and are not owned (nor partly owned) or controlled by such sanctioned person(s) (collectively, “Sanctioned Person(s)”). Where acting as agent, the principal is not a Sanctioned Person(s) nor owned (or partly owned) or controlled by Sanctioned Person(s).
User understands that SparkLoop may provide access to third-party tools over which SparkLoop neither monitors not has any control of input. You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. SparkLoop shall have no liability whatsoever arising from or relating to your use of optional third-party tools. Any use by you of third-party tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
Certain content, products and services available via our Platform may include materials from third-parties. Third-party links on this site may direct you to third-party websites that are not affiliated with SparkLoop. SparkLoop is not responsible for examining or evaluating the content or accuracy and does not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties. SparkLoop is not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
- No Agency
User understands and agrees that User and SparkLoop are independent entities, and that no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement, or by the operation of the SparkLoop service or the Platform.
User further understands and agrees that SparkLoop is independent from all other Users, and that no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created between SparkLoop and any other User by virtue of any other User’s Agreements with SparkLoop, or by the operation of the SparkLoop service or the Platform.
- Term and Termination
Termination. SparkLoop may terminate the Agreement at any time, in its sole discretion, by providing you notice of termination or by ceasing to operate the Platform. Furthermore, SparkLoop may terminate any campaign which you have requested under this Agreement for any negligent behavior, untimely communications with Users, unprofessional behavior, or any other reason in the full discretion of SparkLoop. If terminated, any fees which you have paid to SparkLoop will not be returned and all such fees are nonrefundable. User may also terminate the Agreement at any time. In the event that this Agreement is terminated, the following Sections shall survive any such termination and remain in effect: Section 2 (“Payment”), Section 3 (“Communications with Users; No Disintermediation”), Section 5 (“Release”), Section 6 (“User Conduct and Content”), Section 7 (“Warranty Disclaimer”), Section 8 (“Limitation of Liability”); Section 9 (“Indemnity”); Section 11 (“Legal Compliance”), Section 12 (“No Agency”), Section 13 (“Term and Termination”), Section 15 (“Dispute Resolution”) and Section 16 (“Other Information”).
- License to Use Marks
Each User hereto grants to SparkLoop, and each User hereto grants to other Users engaged thereby in any campaign contemplated hereunder, as applicable, a limited non-exclusive license to use the other party’s name, trademarks, service marks, logos and corporate names in connection with the performance of each party’s obligations under this Agreement, including the right to use such party’s name over the telephone, the internet, social media and in written materials in connection with the performance of services and business relationship described herein.
- Dispute Resolution
This Agreement shall be governed by English law. If any dispute relating to the performance of this Agreement arises, User agrees to negotiate in good faith with SparkLoop to resolve such dispute prior to pursuit of any legal process. If the parties are unable to so resolve the dispute, such dispute shall be resolved by binding arbitration in accordance with the following terms.
We are not responsible for any disputes or disagreements between you and any third party you interact with using the Service. You assume all risk associated with dealing with third parties. You agree to resolve disputes directly with the other party, and SparkLoop, at its option, may use commercially reasonable efforts to assist in resolving any such disputes. You release SparkLoop of all claims, demands, and damages in disputes among Users of the Platform.
Notwithstanding the foregoing, in the case of a project issue, SparkLoop recommends that Partners work directly with Media Brands to resolve any issues. SparkLoop is under no obligation to provide dispute resolution with respect to any such claim and provides this process as a benefit to Partners and Media Brands.
- Other Information
Assignment. No party may assign this Agreement to any third party except upon the other party’s prior written consent; provided, that any such assignee shall continue to be bound by the terms of this Agreement. Furthermore, User may not contract with any other party for the completion of any services which User has agreed to purchase through the Platform, unless SparkLoop consents to such contract.
Modifications. Prices for our offerings are subject to change without notice. SparkLoop reserves the right at any time to modify or discontinue the services (or any part or content thereof) without notice at any time. SparkLoop shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the services offered thereby.
Notices. All notices under this Agreement shall be in writing and delivered via email services to the address set forth above.
By signing this Agreement, User confirms that User has carefully read the terms and conditions of this Agreement.