SPARC THE WORLD INC.
TERMS OF SERVICE
Last Modified: May, 6 2023
Acceptance of the Terms of Service
These terms of service are entered into by and between you and Sparc the World, Inc. (“Sparc”, “we” or “us”). The following Terms of Service (these “Terms of Service”), constitute a legal and binding agreement between you and Sparc governing your access to and use of https://www.sparc.world (the “Website”) and our mobile applications that you download from our Website or the Google PlayTM store (each, an “Application”), including any content, functionality and services offered on or through our Website and Applications (collectively, the “Services”), whether as a guest or a registered user.
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
The Services are offered and available to users who are 13 years of age or older who are located in the United States or any of its territories or possessions. If you are not at least 13 years of age, you must not access the Services. If you are at least 13 years of age but less than 18 years old, your parent or guardian must review and accept these Terms of Service before you use our Services.
By using our Services, you represent and warrant that you meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Services.
Changes to these Terms of Service
We may revise and update these Terms of Service from time to time in our sole discretion. Any changes to these Terms of Service will also be posted here and available from links to these Terms of Service included on our Website or in the Applications. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter.
Your continued use of the Services following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
Additionally, we may at any time, for any reason, and without notice or liability: (1) modify, suspend, or terminate operation of or access to the Services or any portion thereof; (2) change, revise, or modify the Services or any portion thereof; (3) interrupt the operation of the Services or any portion thereof for maintenance and support; (4) impose limits on certain features and services, or restrict access to the Services; and/or (5) terminate the authorization, rights, and license given herein. Upon any termination, the rights and licenses granted to you herein shall terminate, and you must cease all use of the Services.
Accessing the Website or Applications
Subject to these Terms of Service, Sparc grants you a limited, non-exclusive, and nontransferable license to download and install the Applications and use the Applications and Services for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with the Application’s documentation.
We reserve the right to withdraw or amend the Services, and any service or material we provide on or through the Services, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services, or the entire Service, to users, including registered users.
You are responsible for:
Making all arrangements necessary for you to have access to the Services (including providing your own devices and communications service to use the Applications).
Ensuring that all persons who access the Website through your internet connection and the Applications on your devices are aware of these Terms of Service and comply with them.
Sparc will have no liability for errors, unreliable operation, or other issues resulting from use of the Applications on or in connection with rooted or jail broken devices or use on any Mobile Device that is not in conformance with the manufacturer’s original specifications, including use of modified versions of the operating system (collectively, “Modified Devices”). Use of the Applications on Modified Devices will be at your sole and exclusive risk and liability.
If you choose, or are provided with a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Services or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Service.
Intellectual Property Rights
The Services and their entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by Sparc, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
These Terms of Service permit you to use the Services for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Services except as follows:
Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
You may store files that are automatically cached by your Web browser for display enhancement purposes.
You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication or distribution.
You may download a single copy of the Applications to your device solely for your own personal, non-commercial use.
You must not:
Modify copies of any materials from this site.
Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this site.
Reverse engineer, decompile, disassemble, modify or create works derivative of the Applications, except to the extent expressly permitted by applicable law.
Assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Applications, or directly or indirectly permit any third party to copy and install the Applications on a device not owned and controlled by you.
You must not access or use for any commercial purposes any part of the Services or any services or materials available through them. All use of the Applications must be in accordance with their then current documentation, if any, provided with the Applications or made available on our Website.
If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Services in breach of the Terms of Service, your right to use the Services will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Website or the Applications or any content on them is transferred to you, and all rights not expressly granted are reserved by Sparc. Any use of the Services not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark and other laws.
The Sparc The World, Inc. name, Sparc’s logo, Sparc’s slogan, and all related names, logos, product and service names, designs and slogans are trademarks of Sparc or its affiliates or licensors. You must not use such marks without the prior written permission of Sparc. All other names, logos, product and service names, designs and slogans on this Website, or the App are the trademarks of their respective owners.
You may use the Services only for lawful purposes and in accordance with these Terms of Service. You agree not to use the Services:
In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
To send, knowingly receive, upload, download, use or re-use any material which does not comply with the Content Standards set out in these Terms of Service.
To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
To impersonate or attempt to impersonate Sparc, a Sparc employee, another user or any other person or entity (including, without limitation, by using e-mail addresses associated with any of the foregoing).
To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services or which, as determined by us, may harm Sparc or users of the Services or expose them to liability.
Additionally, you agree not to:
Use the Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services.
Use any robot, spider or other automatic device, process or means to access the Services for any purpose, including monitoring or copying any of the material on the Services.
Use any manual process to monitor or copy any of the material on the Services or for any other unauthorized purpose without our prior written consent.
Use any device, software or routine that interferes with the proper working of the Services.
Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services, the server on which the Services are hosted, or any server, computer or database connected to the Services.
Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
Otherwise attempt to interfere with the proper working of the Services.
The Services may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and other interactive features (collectively, “Interactive Features”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Services.
All User Contributions must comply with the Content Standards set out in these Terms of Service and our Code of Conduct.
Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Services, you grant us and our licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material according to your account settings.
You represent and warrant that:
You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our licensees, successors and assigns.
All of your User Contributions do and will comply with these Terms of Service.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Sparc, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness.
We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Services.
Monitoring and Enforcement; Termination
We have the right to:
Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Service, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public or could create liability for Sparc.
Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
Terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms of Service.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS SPARC FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY SPARC DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SPARC OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review material before it is posted on the Services, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
These content standards apply to any and all User Contributions and use of Interactive Features. User Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Contributions must not:
Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
Be likely to deceive any person.
Promote any illegal activity, or advocate, promote or assist any unlawful act.
Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Services infringes your copyright, you may request removal of those materials (or access to them) from the Website by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
Your physical or electronic signature.
Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Services, a representative list of such works.
Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address).
Include both of the following statements in the body of the DMCA Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this DMCA Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Our designated Copyright Agent to receive DMCA Notices is:
1209 North Orange Street, Wilmington, DE, 19801
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Services is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
Repeat Offenders: Please note that it is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.
Reliance on Information Posted
The information presented on or through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other user of the Services or by anyone who may be informed of any of its contents.
The Services may include content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Sparc, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Sparc. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
The Services may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Sparc is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Sparc does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
Changes to the Website and Applications
We may update the content available on or through the Website or Applications from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website or Applications may be out of date at any given time, and we are under no obligation to update such material.
Information About You and Your Visits to the Website and the Applications
Online Purchases and Other Terms and Conditions
You agree that your order through the Services is an offer to buy, under these Terms of Service, all services listed in your order. All orders must be accepted by us or we will not be obligated to sell the services to you. We may choose not to accept orders at our sole discretion (such as if we have run out of a menu item), even after we send you a confirmation email with your order number and details of the services you have ordered.
All prices, discounts, and promotions posted on the Website or Applications are subject to change without notice. The price charged for a service will be the price in effect at the time the order is fulfilled and will be set out in your order confirmation email. Price increases will only apply to orders placed after such changes. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
If you choose to sign up for any of Sparc’s services on a subscription basis, you acknowledge that we bill all charges (“Subscription Fees”) automatically to your credit card, PayPal account or other payment method that we offer and you select. Each subscription term shall be for [one month or one year, according to the subscription cycle you select], and shall automatically renew unless you terminate your subscription [at least thirty (30) days] prior to the end of the then-current term. All payments are due in advance of the subscription term. Subscription Fees will be billed beginning on or about the day of the month in which Sparc activates your account (the “Subscription Date”) and on or about each subscription cycle period thereafter for the term of this Agreement and any renewal thereof until you cancel your subscription. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term and your subscription will not be renewed after your then-current subscription term expires; however, you won’t be eligible for a prorated refund of any portion of the Subscription Fee paid for the then-current subscription period.
You hereby accept responsibility for all recurring charges made to your selected payment method prior to cancellation or termination. Unless you cancel, your subscription will be automatically extended for successive [monthly] periods at the then-current Subscription Fee. Your non-termination or continued use of the Service reaffirms that Sparc is authorized to charge your selected payment method on the recurring basis to which you agreed at registration. We may submit those charges for payment, and you will be responsible for such charges. We assume no responsibility or liability if your access to the Service fails to renew or otherwise expires because of outdated or incorrect payment information. SPARC MAY SUBMIT PERIODIC CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU AFFIRMATIVELY CANCEL YOUR SUBSCRIPTION OR NOTIFY US THAT YOU WISH TO CHANGE YOUR PAYMENT METHOD INFORMATION. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE SPARC REASONABLY COULD ACT.
Unless Sparc otherwise agrees in writing, all fees and charges are nonrefundable. We may change the fees and charges then in effect, or add new fees or charges, by giving you notice in advance. If you want to use a different credit card or payment method than one previously provided or there is a change in credit card validity or expiration date, or if you believe someone has accessed the Services using your username and password without your authorization, you must contact us immediately. If you initiate a chargeback or otherwise reverse a payment made with your payment method, we may, in our discretion, terminate your account immediately. If we successfully dispute the reversal, and the reversed funds are returned, you are not entitled to a refund or to have your account or subscription reinstated.
Employment Connections and Placement
You agree that all employer or candidate connections (as applicable) discovered on the Services will be maintained on the Services. You agree not to initiate contact with new employer or candidate connections (as applicable) directly, through third party services or platforms, or otherwise in circumvention of the Services.
For employers, if you hire a candidate who was discovered using our Services, you shall promptly report to us that the candidate has been placed in your organization and you agree to pay to Sparc a placement fee as specified in a separate referral agreement entered into between you and Sparc. Such referral agreement shall specify the amount of the placement fee as well as the date which such placement fee is due. You hereby acknowledge and agree that we may require you to enter into a referral agreement with Sparc in order to continue use of the job candidate search features of our Services.
Certain location-enabled functionality made available in the Applications is provided by Google Inc., Apple Inc., and other third party providers. Your use of that functionality may be subject to additional terms and conditions (as updated from time-to-time): http://www.google.com/intl/en-US_US/help/terms_maps.html and https://www.apple.com/legal/internet-services/maps/terms-en.html. You must exercise your own judgment as to the adequacy and appropriateness of the information. All location-based information is provided entirely “as-is,” without warranties of any kind.
Linking to the Website and Social Media Features
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.
The Website may provide certain social media features that enable you to:
Link from your own or certain third-party websites to certain content on the Website or Applications;
Send e-mails or other communications with certain content, or links to certain content, on the Website or Applications; and
Cause limited portions of content on the Website or Applications to be displayed or appear to be displayed on your own or certain third-party websites.
Subject to the foregoing, you must not:
Establish a link from any website that is not owned by you.
Cause the Services or portions of the Services to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site.
Link to any part of the Services other than the homepage.
Otherwise take any action with respect to the materials in the Services that is inconsistent with any other provision of these Terms of Service.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.
Links from the Website or within the Applications
If the Services contain links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links to order items or other services. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked from the Services, you do so entirely at your own risk and subject to the Terms of Service of use for such websites.
Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet, including on the Website or through the Applications, will be free of viruses or other destructive code. You are responsible for deploying anti-virus and other similar protections on your computer or Mobile Device. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, MOBILE DEVICES, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON ANY OF THE FOREGOING, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. EXCEPT AS OTHERWISE EXPLICITLY SET FORTH IN THESE TERMS OF SERVICE, NEITHER SPARC NOR ANY PERSON ASSOCIATED WITH SPARC MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER SPARC NOR ANYONE ASSOCIATED WITH SPARC REPRESENTS OR WARRANTS THAT THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
SPARC HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation on Liability
IN NO EVENT WILL SPARC, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES LINKED TO THE SERVICES, ANY CONTENT ON THE SERVICES OR SUCH OTHER WEBSITES OR ANY SERVICES OBTAINED THROUGH OUR SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
No Liability of Third Parties
Your wireless carrier, the manufacturer and retailer of your Mobile Device, the developer of the operating system for your Mobile Device, the operator of any application store, marketplace, or similar service through which you obtain the Applications, and their respective affiliates, suppliers, and licensors are not parties to these Terms of Service and they do not own and are not responsible for the Applications. Sparc, and not any such third party, is responsible for addressing any claims raised by you or any third party regarding the Applications or your use or possession thereof, including claims related to product liability, legal or regulatory requirements, and consumer protection or similar legislation. You are responsible for complying with all application store and other applicable third party terms and conditions. YOU AGREE (I) THE THIRD PARTIES DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE APPLICATIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE; (II) IN NO EVENT WILL THIRD PARTIES BE LIABLE TO YOU OR ANY OTHER THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) ARISING OUT OF THESE TERMS OF SERVICE OR THE APPLICATIONS, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (III) IN ANY EVENT, THE MAXIMUM LIABILITY OF ANY THIRD PARTY FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) OF EVERY KIND WILL IN NOT EXCEED FIVE HUNDRED DOLLARS ($500.00); AND (IV) YOU WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST THIRD PARTIES ARISING OUT OF THESE TERMS OF SERVICE OR THE APPLICATIONS. THE THIRD PARTIES ARE INTENDED THIRD PARTY BENEFICIARIES OF THESE TERMS OF SERVICE, CAPABLE OF DIRECTLY ENFORCING THESE TERMS. NOTHING CONTAINED IN THESE TERMS OF SERVICE WILL BE CONSTRUED AS MODIFYING OR AMENDING ANY AGREEMENTS OR OTHER TERMS BETWEEN YOU AND THIRD PARTIES WITH REGARD TO THEIR SUBJECT MATTER. In the event of any claim that the Applications or your possession and use of the Applications infringe a third party’s intellectual property rights, the third parties are not responsible for the investigation, defense, settlement, or discharge of the infringement claim.
You agree to defend, indemnify and hold harmless Sparc, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Service or your use of the Services other than as expressly authorized in these Terms of Service or your use of any information obtained from the Services.
Governing Law and Jurisdiction
All matters relating to the Services and these Terms of Service and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).
In the event arbitration (as set forth below) is unavailable or Section 27 is determined to be unenforceable, any legal suit, action or proceeding arising out of, or related to, these Terms of Service or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware in each case located in the County of Wilmington, Delaware. Although we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Service in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
You and SPARC Are agreeing to give up any rights to litigate claims in a court or before a jury, or to participate in a class action or representative action with respect to a claim. Other rights that you would have if you went to court may also be unavailable or may be limited in arbitration.
Any claim, dispute or controversy (whether in contract, tort or otherwise, whether pre-existing, present or future, and including statutory, consumer protection, common law, intentional tort, injunctive and equitable claims) between you and us arising from or relating in any way to your purchase of products or services through the SERVICES, will be resolved exclusively and finally by binding arbitration.
Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. The arbitration will be administered by the Judicial Arbitration and Mediation Services, Inc. (JAMS) under the JAMS Comprehensive Arbitration Rules and Procedures then in effect, except as modified by this Section 22. The Comprehensive Arbitration Rules and Procedures are available online at jamsadr.com/rules-comprehensive-arbitration/. You agree that, by agreeing to these Terms, the Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
If you seek arbitration or elect to file a small claim court action, you must first send Sparc, by certified mail, a written notice of your claim (a “Notice”) to our General Counsel in accordance with the Notice section below. If Sparc initiates the arbitration, it will send such Notice to you in accordance with the Notice section below. A Notice, whether sent by you or Sparc, must: (a) describe the nature and basis of the claim or dispute; and (b) describe the specific relief sought (the “Demand”). If you and Sparc do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Sparc may commence an arbitration proceeding or file a claim in small claims court. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.
You agree to an arbitration on an individual basis. In any dispute, neither you nor Sparc THE WORLD, Inc. will be entitled to join or consolidate claims by or against other customers in court or in arbitration or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity. The arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
This arbitration clause shall survive the termination of these Terms of Service. If this specific provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Service shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be as set forth above.
Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Waiver and Severability
No waiver by Sparc of any term or condition set forth in these Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Sparc to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision.
If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.
You hereby grant us the right to take steps we believe are reasonably necessary or appropriate to enforce or verify compliance with any part of these Terms of Service. You agree that we have the right, without liability to you, to disclose any data or information to law enforcement authorities, government officials, or a third party, as we believe is reasonably necessary or appropriate to enforce or verify compliance with any part of these Terms of Service (including but not limited to our right to cooperate with any legal process relating to your use of the Services and/or a third-party claim that your use of the Services is unlawful or infringes such third party's rights).
Your Comments and Concerns
The Services are operated by Sparc the World, Inc., 1209 North Orange Street, Wilmington, DE, 19801.