SPARKLOOP, LLC
TERMS OF SERVICE AGREEMENT
Effective Date: March 2, 2023
This Terms of Service Agreement (“Agreement”) is a binding legal contract between you and SparkLoop, LLC (“SparkLoop,” “we,” “us,” or “our”), regarding your use of SparkLoop’s website located at https://sparkloop.app on all platforms (the “Services”).
Carefully read this Agreement and the Privacy Policy before using the Services. By using the Services, you agree to the terms and conditions of this Agreement and the Privacy Policy. The Privacy Policy is part of this Agreement and incorporated by reference herein. If you do not agree to any of these terms, please do not use the Services.
You affirm that you are either more than 18 years of age, or an emancipated minor, or possess the consent of your legal parent or guardian, and 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.
The Services are controlled and offered by SparkLoop from its facilities in the United States of America. SparkLoop makes no representations that the Services are appropriate for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with their local law.
Nothing in this Agreement shall be deemed to confer any third-party rights or benefits. You agree there is no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
1. General Use of the Services — Permissions and Restrictions
SparkLoop hereby grants you a revocable, non-transferable, and non-exclusive permission to access and use the Services as set forth in this Agreement, provided that:
a. You agree not to distribute in any medium any part of the Services, including but not limited to Content and User Submissions (each as defined below), without SparkLoop’s prior written authorization.
b. You agree not to alter or modify any part of the Services, including but not limited to, SparkLoop’s technologies.
c. You agree not to access User Submissions (defined below) or Content (defined below) through any technology or means other than any as authorized by this Agreement or a written agreement between you and SparkLoop.
d. You agree not to use the Services for any commercial use without the prior written authorization of SparkLoop. Prohibited commercial uses include, but are not limited to, any of the following actions taken without SparkLoop’s express approval:
i. Sale of access to the Services or Content via another website or medium (such as a mobile application);
ii. Use of the Services or Content for the purpose of gaining advertising or subscription revenue;
iii. The sale of advertising, on the Services or any third-party website, targeted to the content of specific User Submissions or the Content;
iv. Any use of the Services, Content, or User Submissions that SparkLoop finds, in its sole discretion, has the effect of competing with or displacing the market for the Services, Content, or User Submissions.
e. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Services in a manner that sends more request messages to the SparkLoop servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, SparkLoop grants the operators of public search engines permission to use spiders to copy materials from the Services 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. SparkLoop reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information from the Services, nor to use the communication systems provided by the Services for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Services with respect to their User Submissions.
f. You will otherwise comply with the terms and conditions of this Agreement, and all applicable local, national, and international laws and regulations.
g. You agree not to impersonate any person or organization.
h. You agree not to harass any other user.
i. SparkLoop reserves the right to discontinue any aspect of the Services at any time.
2. Your Use of Content on the Services
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content on the Services.
a. The content on the Services, except all User Submissions, including without limitation, the text, software, scripts, graphics, files, documents, images, photos, sounds, music, pictures, messages, interactive features, the design of and “look and feel,” and the like (“Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to SparkLoop, subject to copyright and other intellectual property rights under the law. Content on the Services is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. SparkLoop reserves all rights not expressly granted in and to the Services and the Content.
b. You may access User Submissions solely:
i. For your information and personal use in accordance with this Agreement; and
ii. As intended through the normal functionality of the Services.
c. User comments are made available to you for your information and personal use solely as intended through the normal functionality of the Services. User comments are made available “as is,” and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, downloaded, or otherwise exploited in any manner not intended by the normal functionality of the Services or otherwise as expressly authorized under this Agreement. d. You may access Content, User Submissions, and other content only as permitted under this Agreement. SparkLoop reserves all rights not expressly granted in and to the Content and the Services. e. You agree to not use, copy, reproduce, transmit, broadcast, sell, license, download, or otherwise exploit any of the Content other than as expressly permitted herein. f. You agree not to circumvent, disable, or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Services or the Content therein. g. You understand that when using the Services, you will be exposed to User Submissions from a variety of sources, and that SparkLoop is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against SparkLoop with respect thereto, and agree to indemnify and hold SparkLoop, its owners, operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Services.
3. Your User Submissions and Conduct
a. You may submit comments, information, text, link, graphics, photos, videos, or other materials or arrangements of materials posted, uploaded, downloaded, or appearing on SparkLoop (collectively referred to as “User Submissions”) to SparkLoop. You understand that whether or not such User Submissions are published, SparkLoop does not guarantee any confidentiality with respect to any User Submissions
b. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: you own or have all the necessary licenses, rights, consents, and permissions to use and authorize SparkLoop to use all patent, trademark, trade secret, copyright or other intellectual property or proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Services and this Agreement.
c. You retain ownership of all copyrights you may have in your User Submissions. However, you grant SparkLoop a perpetual, non-exclusive, fully paid and royalty-free, worldwide license to SparkLoop to use, remove, copy, reproduce, process, transmit, excerpt, publish, distribute, publicly display, publicly perform, create derivative works of, host, index, cache, tag, encode, modify, and adapt in any form or media now known or hereinafter developed, any User Submissions posted by you to SparkLoop.
d. In connection with User Submissions, you further agree that you will not submit material that is copyrighted, trademarked, protected by trade secret or confidentiality, or otherwise subject to third-party proprietary rights, including privacy, personality and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant SparkLoop all of the license rights granted herein.
e. You agree that your conduct on the Services will comport with the terms of this Agreement.
f. SparkLoop does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and SparkLoop expressly disclaims any and all liability in connection with User Submissions. SparkLoop does not permit copyright infringing activities and infringement of intellectual property rights on its Services, and SparkLoop will remove all Content and User Submissions if properly notified in a manner consistent with law and SparkLoop’s Copyright Infringement Notification policy that such Content or User Submission infringes on another’s intellectual property rights. SparkLoop reserves the right to remove Content and User Submissions without prior notice.
g. If you provide feedback to us regarding the Services, Content, or User Submissions (“Feedback”), you authorize us to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to us perpetual and irrevocable license to use the Feedback for any purpose.
4. Copyright Infringement
a. If you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
iv. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
v. 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 the law; and
vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. SparkLoop’s designated Copyright Agent to receive notifications of claimed infringement can be contacted at: legal@sparkloop.app.
You acknowledge that if you fail to comply with all of the requirements of this Section 4(a), your DMCA notice may not be valid.
b. Counter-Notice. If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:
i. Your physical or electronic signature;
ii. Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
iii. A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
iv. Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Boise, Idaho and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, SparkLoop may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at SparkLoop’s sole discretion.
c. Repeat Infringers. SparkLoop will terminate the access privileges of any user whom it deems, in its sole authority, has repeatedly infringed the copyright rights of others.
5. WARRANTY DISCLAIMER
YOU AGREE THAT YOUR USE OF THE SERVICES OR THE GOODS, PRODUCTS, AND SERVICES AVAILABLE THEREIN SHALL BE AT YOUR SOLE RISK. THE SERVICES, CONTENT, USER SUBMISSIONS, AND ANY GOODS, PRODUCTS, OR SERVICES AVAILABLE ON THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, AND SPARKLOOP, ITS MANAGERS, MEMBERS, EMPLOYEES, LICENSORS, SUPPLIERS, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SPARKLOOP MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES’ CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES AND THE GOODS, PRODUCTS, AND SERVICES AVAILABLE THEREIN, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. SPARKLOOP DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY GOOD, PRODUCT, OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND SPARKLOOP WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A GOOD, PRODUCT, OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL SPARKLOOP, ITS MANAGERS, MEMBERS, EMPLOYEES, LICENSORS, SUPPLIERS, OR AGENTS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES, CONTENT, USER SUBMISSIONS OR THE GOODS, PRODUCTS, AND SERVICES AVAILABLE ON THE SERVICES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
YOU AGREE THAT THE MAXIMUM TOTAL LIABILITY OF SPARKLOOP, ITS MANAGERS, MEMBERS, EMPLOYEES, LICENSORS, SUPPLIERS, OR AGENTS TO YOU FOR ANY CLAIM UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL TOTAL AMOUNT RECEIVED BY SPARKLOOP FROM YOU TO ACCESS THE SERVICES AND/OR USE THE SERVICES. IF YOUR USE OF THE SERVICES AND/OR ANY GOODS, PRODUCTS, AND SERVICES RESULTS IN THE NEED FOR SERVICING, REPAIR, OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ALL COSTS THEREOF. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7. Indemnity
You agree to defend, indemnify and hold harmless SparkLoop, its managers, members, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Services; (ii) your violation of any term of this Agreement; (iii) your violation of any third-party rights, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party or to SparkLoop. This defense and indemnification obligation will survive this Agreement and your termination of use of the Services.
8. Termination Policy
a. You may terminate your use of the Services at any time. SparkLoop may terminate this Agreement, or suspend or terminate your access to the Services, at any time, for any reason. If SparkLoop suspects that you have violated any provision of this Agreement, SparkLoop may also seek any other available legal remedy. Your rights under this Agreement will terminate automatically if you breach any part of this Agreement. You remain solely liable for all obligations related to use of the Services, even after you have stopped using the Services.
b. SparkLoop reserves the right to decide whether Content or a User Submission is appropriate and complies with this Agreement for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, laws regulating obscene or defamatory material. SparkLoop may remove such User Submissions and/or terminate a User’s access for uploading such material in violation of this Agreement at any time, without prior notice and at its sole discretion.
9. Third-Party Sites
The Services may contain links to third-party websites that are not owned or controlled by SparkLoop. SparkLoop has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites. In addition, SparkLoop will not and cannot censor or edit the content of any third-party site. By using the SERVICES, you expressly relieve SparkLoop from any and all liability arising from your use of any third-party website.
10. Notice Regarding Electronic Payment Vendors
Users should be aware some payments may be processed through Stripe or other electronic payment vendors. SparkLoop may also provide applications and other services to merchants related to payment processing. Payments may not be processed for certain activities, such as for illegal or other prohibited activities. If you have a question as to whether a payment will be accepted, then we encourage you to check the policies of the applicable vendor.
Your relationship with the electronic payment vendors is separate from your relationship with SparkLoop and is governed by the terms and conditions contained in such vendor’s agreement. Such terms and conditions are available at the respective vendor’s website. SparkLoop is not responsible for the actions or omissions of any third party payment processor.
11. Submissions and Privacy
In the event that you submit or post any ideas, creative suggestions, designs, photographs, information, advertisements, data or proposals, including ideas for new or improved products, services, features, technologies or promotions, you expressly agree that such submissions will automatically be treated as non-confidential and non-proprietary and will become the sole property of SparkLoop without any compensation or credit to you whatsoever. SparkLoop and its affiliates shall have no obligations with respect to such submissions or posts and may use the ideas contained in such submissions or posts for any purposes in any medium in perpetuity, including, but not limited to, developing, manufacturing, and marketing products and services using such ideas.
12. Promotions
SparkLoop may, from time to time, include contests, promotions, sweepstakes, or other activities (“Promotions”) that require you to submit material or information concerning yourself. Please note that all Promotions may be governed by separate rules that may contain certain eligibility requirements, such as restrictions as to age and geographic location. You are responsible to read all Promotions rules to determine whether or not you are eligible to participate. If you enter any Promotion, you agree to abide by and to comply with all Promotions Rules.
Additional terms and conditions may apply to purchases of goods or services on or through the Services, which terms and conditions are made a part of this Agreement by this reference.
13. Typographical Errors
In the event a product and/or service is listed at an incorrect price or with incorrect information due to typographical error, we shall have the right to refuse or cancel any orders placed for the product and/or service listed at the incorrect price. We shall have the right to refuse or cancel any such order whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit card account or other payment account in the amount of the charge.
14. Users Under 13 Years of Age
Our Services are not directed to persons under the age of 13. If you become aware that your child has provided us with personal information without your consent, please contact us at legal@sparkloop.app. We do not knowingly collect personal information from children under the age of 13. If we become aware that a child under the age of 13 has provided us with personal information, we take steps to remove such information. By using the Services, you are representing to us that you are not under the age of 13. If you are under 13 years of age, you are not authorized to install and use the Services and must immediately delete it from your devices.
15. Assignment
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by SparkLoop without restriction.
16. General
By using the Services, you consent to receiving electronic communications from SparkLoop. These communications will include notices about your account and information concerning or related to the Services and/or SparkLoop’s products and services. You agree that any notice, agreement, disclosure or other communication that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
17. Applicable Law
This Agreement shall be governed by the internal substantive laws of the State of Idaho, without respect to its conflict of laws principles. By accessing the Services, the parties consent to the jurisdiction of the State of Idaho.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS WE AND YOU HAVE AGAINST EACH OTHER ARE RESOLVED. SECTION 18 CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT REQUIRES YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION AND LIMITS YOUR RIGHT TO SEEK RELIEF BY JURY TRIAL OR CLASS ACTION.
18. AGREEMENT TO ARBITRATE
This section applies to any dispute EXCEPT IT DOESN’T INCLUDE A DISPUTE RELATING TO CLAIMS FOR INJUNCTIVE OR EQUITABLE RELIEF REGARDING THE ENFORCEMENT OR VALIDITY OF YOUR OR SPARKLOOP’S INTELLECTUAL PROPERTY RIGHTS. The term “dispute” means any dispute, action, or other controversy between you and SparkLoop concerning the Services or this agreement, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law.
18.1 Notice of Dispute
In the event of a dispute, you or SparkLoop must give the other a Notice of Dispute, which is a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute via email to: legal@sparkloop.app. SparkLoop will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your email address. You and SparkLoop will attempt to resolve any dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. After sixty (60) days, you or SparkLoop may commence arbitration.
18.2 Binding Arbitration
If you and SparkLoop don’t resolve any dispute by informal negotiation, any other effort to resolve the dispute will be conducted exclusively by binding arbitration as described in this section. You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. The dispute shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration will be conducted in Boise, Idaho, and judgment on the arbitration award may be entered into any court of competent jurisdiction. The award of the arbitrator will be final and binding upon the parties without appeal or review except as permitted by Idaho law. Either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration. Any and all legal, accounting, and other costs, fees, and expenses incurred by the prevailing party shall be borne by the non-prevailing party.
18.3 Prohibition of Class and Representative Actions and Non-Individual Actions
You and SparkLoop agree that either may bring claims against the other only on an individual basis and not as part of any purported class or representative action or proceeding unless both you and SparkLoop agree otherwise. The arbitrator may not consolidate or join more than one person’s or party’s claims and may not preside over any form of a consolidated, representative or class proceeding. Also the arbitrator may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s claim(s). Any relief awarded cannot affect other SparkLoop’s users.
19. Severability
This Agreement, together with the Privacy Policy and any other legal notices published by SparkLoop on the Services, shall constitute the entire agreement between you and SparkLoop concerning the Services. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and SparkLoop’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. YOU AND SPARKLOOP AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
20. Privacy Policy
Please read our Privacy Policy for information regarding how we collect, use, and disclose your personal information. Our Privacy Policy also contains information about how we comply with the General Data Protection Regulation (EU) 2016/679 (the “EU’s GDPR”), the Data Protection Act 2018 (the “UK GDPR”), the EU-U.S. Privacy Shield Framework and the Swiss-U.S. Privacy Shield Framework (collectively, “Privacy Shield”), the California Consumer Privacy Act ("CCPA"), the California Privacy Rights Act (“CPRA”), other U.S. state privacy laws, and other countries’ privacy laws.
You acknowledge and agree that SparkLoop has your prior written authorization to respond to any access and deletion requests we receive from your subscribers made under applicable data protection laws, and we may direct any such subscribers to you so that you can respond to the request.
21. SPARKLOOP PARTNERSHIP PROGRAM
a. Purpose of the SparkLoop Partnership Program. SparkLoop has created the Services for matching partners (“Partners”) with media brands (“Media Brands”). By using the Services, 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 Services, 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 Partnership Program enables Users to request services based on the following types of partnerships:
i. Custom Partner Campaigns. Partners and Media Brands may use the SparkLoop Partnership Program 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. You agree SparkLoop takes no responsibility for facilitating payments or the success of custom partner campaigns. ii. Partner Programs and 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. If approved, Partners 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.
b. Payment; Software Integration
i. 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 Services, 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. By creating an account on the Services, you hereby expressly authorize SparkLoop to integrate Stripe Connect for purposes of facilitating the transactions set forth herein. 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.
ii. Payments. 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 in writing.
iii. 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 Program Fee of twenty percent (20%) or such other amount 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 three and one-half percent (3.5%) unless otherwise determined by SparkLoop in its sole discretion.
iii. Other. 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 recovering or making any unpaid payments due to any party hereunder or making any payments under any campaign or functionality offered on its Services to any User that has violated the terms of this Terms of Service Agreement 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.
c. User Obligations and Agreements. Media Brands agree to make payments
using the Approved Payment Mechanisms within (ten) 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.
d. Communications with Users; No Disintermediation. All written communications
between Users who match via the SparkLoop Partner Network must be
conducted through the Services or communication devices designated by
SparkLoop in writing. All such communications may not contain any requests to
circumvent the Services 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”), Users 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 Services; 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 Users that encourage,
facilitate, or solicit complete or partial payment outside of this Agreement or
otherwise solicit 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 ten percent (10%) of all fees
paid by Media Brand in connection therewith. All parties to this Agreement hereto
further acknowledge that (i) 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; (ii) 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 (iii) 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.
22. ANTI-BRIBERY AND EXPORT COMPLIANCE
You will not use, resell, distribute, transfer, provide, sub-license, share with, or otherwise offer the Services in violation of any laws or this Agreement, including, without limitation, the United States Foreign Corrupt Practices Act and similar anti-corruption statutes in all jurisdictions. Without limiting the foregoing, you will not knowingly directly or indirectly export, re-export, transfer, make available or release (collectively, "Export") the Services to any destination, person, entity, or end user prohibited or restricted under US law without prior US government authorization to the extent required by regulation, including without limitation, any parties listed on any of the denied parties lists or specially designated nationals lists maintained under the EAR or the Security and the Foreign Asset Control Regulations (31 CFR 500 et seq.) administered by the US Department of Treasury, Office of Foreign Assets Control without appropriate US government authorization to the extent required by regulation. Compliance with the trade laws of other countries pertaining to the Export, import, use, or distribution of the Services to customer and end users is your responsibility.
23. Force Majeure
In the event SparkLoop is unable to perform its obligations or provide the Services under the terms of this Agreement because of acts of God (including, but not limited to, severe acts of nature or weather events including floods, fires, earthquakes, hurricanes, or explosions), strikes or labor disputes, war, riots, acts of terrorism, epidemics, pandemics, acts of governmental authorities (including but not limited to government directives, expropriation, condemnation, and changes in laws and regulations), interruptions, loss, or malfunctions of utilities, communications, or computer (software and hardware) services, or other causes reasonably beyond SparkLoop’s control, SparkLoop shall not be liable for any costs or damages resulting from SparkLoop’s failure to perform its obligations under the terms of this Agreement, provide the Services, or otherwise, from such causes. However, nothing in this section will affect or excuse your liabilities or your obligations under this Agreement.
24. PLAN RENEWALS
The term of your access to the Services (a “Plan”) will continue for the period identified at the time of your purchase. You can review current plans and pricing at https://sparkloop.app/pricing.
YOU AGREE YOUR CARD-ON-FILE WILL AUTOMATICALLY BE CHARGED RECURRING RENEWAL FEES ON THE FIRST DAY OF THE RENEWAL TERM UNLESS YOU CANCEL YOUR PLAN. TO CHANGE OR CANCEL YOUR AUTO RENEWAL PREFERENCES YOU CAN LOG INTO YOUR ACCOUNT VIA THE SPARKLOOP APP OR CONTACT SUPPORT@SPARKLOOP.APP. FOR ANNUAL PLANS, WE WILL PROVIDE YOU THIRTY (30) DAYS’ NOTICE PRIOR TO THE AUTOMATIC RENEWAL DATE OF YOUR PLAN BEFORE CHARGING YOUR CARD-ON-FILE.
You agree to notify us of any changes required to keep your card-on-file current. You agree that failure to keep your card-on-file current may result in interruption to your use of the Services.
25. Contact Us
If you have questions or comments about this Agreement, or to report any violations or abuse of the Services, please contact us at legal@sparkloop.app.