TERMS OF USE AGREEMENT
Last Revised: March 24, 2020
CANCELLATION RIGHTS
Special notice to California Members : You have the right to cancel your subscription and/or upgrade(s) (including upgrades to a subscription and upgrades without a subscription), without any penalty or obligation, at any time until midnight of the third business day after the day on which you purchased a subscription and/or upgrade(s). To cancel your subscription and/or upgrade(s), mail or deliver a signed and dated notice to Spark App Customer Care – Charm Labs LLC, Attn: Customer Service 3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009, send an email to [email protected] or send a telegram which states that you are cancelling your subscription and/or upgrade(s) or words of a similar effect. Include your Company user name and the email address used to register for the Services with such notice. For additional state specific information relating to cancellation, please see Section 22 (Cancellation Rights).
Special notice to Canadian Members : Please refer to Section 26 first for information about how this Terms of Use Agreement applies to Canadian members including a special notice regarding provisions that are inapplicable in Quebec.
PLEASE READ THIS TERMS OF USE AGREEMENT CAREFULLY. BY ACCESSING OR USING OUR SITES AND OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT ACCESS OR USE OUR SITES OR OUR SERVICES.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION IN SECTION 20 THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
IF YOU BECOME A COMPANY SUBSCRIBER AND PAY BY CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD ASSOCIATED WITH AN AUTOMATICALLY RENEWING SUBSCRIPTION), YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR CERTAIN PERIODS OF TIME IF YOU DO NOT CANCEL PRIOR TO THE END OF THE TERM. SEE SECTIONS 13(c) AND (d) FOR MORE INFORMATION ON THE AUTOMATIC RENEWAL TERMS APPLICABLE TO SUBSCRIPTIONS.
If you have any questions or comments about this Terms of Use Agreement, you may contact the Company by writing to us at: Spark App Customer Care – Charm Labs LLC, Attn: Customer Service – Terms of Use, 3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009.
This Terms of Use Agreement (the “Agreement”) is a legal agreement that governs our relationship with users and others that interact with Charm Labs LLC and our subsidiaries and affiliates (the “Company”, “we,” or “us”) in connection with the use of our websites (including www.spark.com) (the “Sites”) and our Services (as defined below). We currently make services, products and features available through our Sites, applications, which include Mobile Software (as defined in Section 16) and applications available on social networking sites and other platforms, and other downloadable products (the Sites, the applications, the downloadable products and all products, services and features provided by us in connection therewith shall be referred to collectively as, the “Services”). We may offer additional services or products or modify or revise any of the Services at our discretion, and this Agreement will apply to all additional services or products and all modified or revised Services unless otherwise indicated. We also reserve the right to cease offering any of the Services. You agree that we shall not be liable to you or any third party for any modification, revision, suspension or discontinuance of any of the Services.
Your use of certain Services may be subject to additional terms and conditions, and such terms and conditions will be either listed in this Agreement, or will be presented or accessible to you by us when you sign up to use, or use, such Services (“Additional Terms”). All such Additional Terms are incorporated by reference into this Agreement unless otherwise indicated. This Agreement does not alter in any way the terms or conditions of any other agreement you may have with us for products, services or otherwise.
All visitors to or users of our Sites or Services, whether registered or not, are “users” of the Services for purposes of this Agreement. If you register for the Services by creating an account, you become a “Member”.
This Agreement and any policy or guideline of the Services may be modified by us in our sole discretion at any time. We shall provide notice of any such modification, which notice shall, at a minimum, consist of posting the revised Agreement to the Sites. When we change the Agreement, we will update the “last revised” date at the top of this page. If you are a non-subscribing user or Member at the time of any modification, unless otherwise indicated, any changes or modifications will be effective immediately upon posting the revisions to the Site or Service, and your use of the Service after such posting will constitute acceptance by you of the revised Agreement. If you are a subscribing Member at the time of any change or modification, unless otherwise indicated this Agreement will continue to govern your membership until such time that your subscription renews as contemplated by Section 13. If you continue your subscription, the renewal will constitute acceptance by you of the revised Agreement. Alternatively, if you terminate your subscription at such time, your use of the Service after your termination will constitute acceptance by you of the revised Agreement. As a result, you should frequently review this Agreement and all applicable terms and policies to understand the terms that apply to your use of the Services. If you do not agree to the amended terms, you must stop using the Services.
1. ELECTRONIC RECORDS
Because the Services are provided electronically, you must consent to our providing important information electronically if you wish to use the Services. You consent to being provided with this Agreement, notices, disclosures, information, policies and other materials in electronic form (collectively “Electronic Records”), rather than in paper form in accordance with The Electronic Signatures in Global and National Commerce Act. Your consent to receive Electronic Records applies to all notices, disclosures, documents, records or other materials of any kind that we may be required to provide to you.
Electronic Records will be provided on our Sites and Services or sent to the email address associated with your account (you may change the email address associated with your account by going to the “settings” page). You may wish to print out all Electronic Records and keep them for your records. If you have any trouble printing out, downloading, and/or accessing any Electronic Records, you may contact us in writing at the address provided above. In order for you to access and retain Electronic Records sent by us, you must have the following hardware and software: a computer or other access device capable of reading html and text files, a modem or other means of accessing the Internet, a browser capable of accessing and displaying the Company website and the ability to receive and read emails. To print the Electronic Records, you will also need a printer.
You may withdraw your consent to receive Electronic Records by contacting us in writing at the address provided above. However, the Services provided by us are only available if you agree to receive Electronic Records, and you understand that withdrawing such consent will result in your account being deactivated. You can obtain a paper copy of an Electronic Record by contacting us in writing at the address provided above, provided that we may charge a reasonable fee to cover the costs of printing and sending the requested Electronic Record.
2. ELIGIBILITY
By accessing or using the Services, you represent and warrant that: (a) you are at least 18 years old; (b) you have never been convicted of a felony or any criminal offense characterized as a sexual offense and are not required to register as a sex offender with any government entity; (c) you have not previously been suspended or removed from the Services; (d) you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement; (e) you are not a competitor of us and are not using the Services for reasons that are in competition with us or other than for its intended purpose; and (f) you are not located in, under the control of, or a national or resident of any country which the United States has (i) embargoed, (ii) identified as a “Specially Designated National” or (iii) placed on the Commerce Department’s Table of Deny Orders.
3. USE OF THE SERVICES
You agree that you will only use the Services, including the posting of any content through the Services, in a manner consistent with this Agreement and any and all applicable local, state, national and international laws and regulations, including, but not limited to, United States export control laws. Use of the Services is void where prohibited.
a. Member Account. You will create only one unique profile for use of the Services. You will not include any telephone numbers, street addresses, URLs, multimedia, artworks downloaded from external sources, email addresses or any other contact information in your profile or in any other publicly viewable User Content (as defined in Section 4 below) or other communications made in connection with your use of the Services. Additionally, you will not include your last name in your dating profile. You understand and agree that anyone may be able to view any information you choose to make publicly available.
b. Account Security. You understand that you are responsible for maintaining the confidentiality of the username and password of your account, and you are fully responsible for all activities that occur under your username and password, including the purchase of any of our Paid Services (as defined in Section 13 below). You agree (a) to immediately notify us if you suspect any unauthorized use of your username or password or any other breach of security, (b) to ensure that you exit from your account at the end of each session, (c) not to use the account, profile, username or password of any other user or Member and (d) to 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. You acknowledge that we are not responsible for any loss or damage arising from the theft or misappropriation of your username or password. We recommend that you use a strong password for your account, never use the same password on multiple sites or services and change your password frequently.
c. Exclusive Use. You will only use the Services for your sole, personal use and not in connection with any commercial endeavors. You will not authorize others to use the Services or otherwise attempt to transfer your right to use the Services to any other person or entity.
d. Interactions with Other Users; Criminal Background Screenings . You assume all risk when using the Services, including but not limited to all risks associated with any online or offline interactions with others, including dating. There is no substitute for acting with caution when communicating with any stranger who wants to meet you. YOU ACKNOWLEDGE THAT, CURRENTLY, WE DO NOT ROUTINELY SCREEN OUR USERS, INQUIRE INTO THE BACKGROUND OF OUR USERS, ATTEMPT TO VERIFY INFORMATION PROVIDED BY OUR USERS OR CONDUCT CRIMINAL SCREENINGS OF OUR USERS. WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO CONDUCT SUCH INQUIRIES OR SCREENINGS (INCLUDING THE SEARCH OF ANY SEX OFFENDER REGISTRIES). YOU FURTHER ACKNOWLEDGE THAT WE ARE UNDER NO OBLIGATION TO CONDUCT ANY SUCH INVESTIGATIONS. We do not make any representations, warranties or guarantees as to the conduct of its users, information provided by users, or their compatibility with you. You acknowledge that not all users are available for matching and that we may create test profiles or accounts to monitor the operation of the Services. You agree to take all necessary precautions when meeting other users, especially if you decide to meet in person. IN ADDITION, YOU AGREE TO REVIEW OUR ONLINE DATING SAFETY TIPS PRIOR TO USING THE SERVICES. These tips provide general advice aimed at engaging in safer dating practices, such as not providing your last name, home address, place of work, financial information (such as your credit card number or your bank account number) or other identifying information to other users and stopping all communications with anyone who pressures you for personal or financial information or attempts in any way to trick you into revealing it. You agree to treat all other users with dignity and respect and comply with our user conduct rules set forth in Section 3(f) below.
e. No Commercial Solicitation or Advertising. You will not engage in any advertising or solicitation to buy or sell any products or services through the use of the Services and you will not transmit any chain letters, junk or spam email to other users. Additionally, you will not use any information obtained from the Services in order to contact, advertise to, solicit or sell to any user without their prior explicit consent.
f. User Conduct. We are not responsible or liable in any manner for the conduct of our users, whether or not such conduct is in connection with the use of the Site or the Services. YOU ACKNOWLEDGE THAT YOU USE THE SERVICES AT YOUR OWN RISK. You agree not to do any of the following in connection with the Services or the users thereof:
i. use the Service in any unlawful manner or in a manner that is harmful to or violates the rights of others;
ii. engage in any unlawful, harassing, obscene, intimidating, threatening, predatory or stalking conduct;
iii. use the Services in any manner that could disrupt, damage, disable, overburden, impair or affect the performance of the Services or interfere with or attempt to interfere with any other user’s use of the Services;
iv. attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service;
v. impersonate any person or entity, or misrepresent your age, identity, affiliation, connection or association with, any person or entity;
vi. make any commercial use of the Services or promote or solicit involvement in or support of a political platform, religion, cult, or sect;
vii. defraud, swindle or deceive other users of the Services;
viii. disseminate another person’s personal information without his or her permission, or collect or solicit another person’s personal information for commercial or unlawful purposes;
ix. solicit or engage in gambling or any similar activity or any illegal or unlawful activity;
x. use any scripts, bots or other automated technology to scrape or access the Services or take any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
xi. collect or solicit personal information about anyone under 18;
xii. use the Service for any phishing, trolling or similar activities;
xiii. use the Service to redirect users to other sites or encourage users to visit other sites;
xiv. harvest or collect email addresses or other contact information of other users from the Services by electronic or other means or use the Services to send, either directly or indirectly, any unsolicited bulk e-mail or communications, unsolicited commercial e-mail or communications or other spamming or spimming activities;
xv. attempt to access any Services or area of the Sites that you are not authorized to access;
xvi. bypass the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein;
xvii. use another user’s account or permit or allow other people or third parties to access and use the Services via your account; or
xviii. upload invalid data, viruses, worms, or other software agents through the Services.
g. Reporting Violations. If you wish to report any violation of this Agreement by others, including Members, you may do so by using the “Report This Profile” button or similar button or link on the Services or by contacting us at [email protected].
h. Verification and Enforcement. Although we do not routinely conduct criminal screenings of our users, you agree that we have the right to do so at our sole discretion, and you consent to such screening and agree to provide to us complete, accurate and current information confirming your eligibility for use of the Services. You understand and agree that if the Company believes in its sole discretion that you have violated the terms of this Agreement, misused the Services or behaved in a way that could be regarded as inappropriate, unlawful, illegal or unsafe, the Company may, among other things, investigate, take legal action against you and/or terminate your account and cancel your subscription and/or membership.
4. USER CONTENT
a. Responsibility for User Content. You are solely responsible for the content and information that you provide, publish, transmit, display or otherwise communicate to us through the Services or to other users (collectively referred to as “post”), including without limitation messages, data, text, photos, video, music, graphics, links or other materials posted through chat messages, community pages, email messages, mobile messages, photos and profile information (your submissions and those of other users, collectively, are “User Content”). The Company does not control, take responsibility for or assume liability for any User Content posted by you or any third party, or for any loss or damage thereto, nor is the Company liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you encounter. YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SERVICES AND USE THEM AT YOUR OWN RISK.
b. Accuracy of Information. You will not post any inaccurate, misleading, incomplete or false information or User Content to us or to any other user. You agree that all images posted to your dating profile are of you and were taken within the last 2 years and agree to update your dating profile accordingly. You may be required to supply certain information and post a photo of yourself to use the Services.
c. No Duty to Review User Content. Although you understand and acknowledge that the Company has no duty to prescreen, review, control, monitor or edit the User Content posted by users and is not liable for User Content that is provided by others, you agree that the Company may, at its sole discretion, review, edit, refuse to accept or delete User Content at any time and for any reason or no reason without notice, and you are solely responsible for creating backup copies and replacing any User Content you post or store on the Services at your sole cost and expense. This includes the Company’s right to modify, crop or “photoshop” any photos you submit to comply with the Company’s policies, practices and procedures.
d. License of User Content to the Company. The Company claims no ownership or control over your User Content, except as otherwise specifically provided herein, on the Services or in a separate agreement. By submitting or posting User Content, you hereby grant, and you represent and warrant that you have the right to grant, to the Company, its affiliates, licensees and successors an irrevocable, perpetual, non-exclusive, transferable, fully paid, royalty-free, worldwide right and license to use, copy, publicly perform, publicly display, reproduce, adapt, modify, distribute, publish, list information regarding, translate, and syndicate such User Content furnished by you and to prepare derivative works of, or incorporate into other works, such information and User Content, and to grant and authorize sublicenses of the foregoing in any medium. You represent and warrant that the User Content and the public posting and use of your User Content by the Company will not infringe or violate any third-party rights, including without limitation any intellectual property rights or rights of privacy or publicity, or cause any harm to any third party or violate the terms of this Agreement. You further represent and warrant that you have the written consent of each and every identifiable natural person in your User Content to use such person’s name, voice, or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use. By posting User Content, you hereby release the Company and its agents and employees from any claims that such use, as authorized above, violates any of your rights and you understand that you will not be entitled to any additional compensation for any use of your User Content.
e. Use of Proprietary Information of Others. You will not post, copy, transfer, create any derivative works from, distribute, reproduce or show in any manner any copyrighted or trademarked or other proprietary information or materials, including any User Content posted by other users, without the prior consent of the owner of such proprietary rights. You acknowledge that information or materials available through the Services may have copyright protection whether or not it is identified as being copyrighted.
f. Prohibited Content. You will not post, transmit or deliver to any other user, either directly or indirectly, any User Content that violates any third-party rights or any applicable law, rule or regulation or is prohibited under this Agreement or any other Company policy governing your use of the Services (“Prohibited Content”). Prohibited Content includes without limitation User Content that:
i. is obscene, pornographic, profane, defamatory, abusive, offensive, indecent, sexually oriented, threatening, harassing, inflammatory, inaccurate, misrepresentative, fraudulent or illegal;
ii. promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
iii. is intended to, or does, harass, or intimidate any other user or third party;
iv. may infringe or violate any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party, including User Content that contains others’ copyrighted content (e.g., photos, images, music, movies, videos, etc.) without obtaining proper permission first;
v. contains video, audio, photographs, or images of another person without his or her express written consent (or in the case of a minor, the minor’s legal guardian) or otherwise violates anyone’s right of privacy or publicity;
vi. promotes or enables illegal or unlawful activities, such as instructions on how to make or buy illegal weapons or drugs;
vii. violates someone’s data privacy or data protection rights;
viii. contains viruses, time bombs, trojan horses, cancelbots, worms or other harmful, or disruptive codes, components or devices;
ix. contains any advertising, fundraising or promotional content; or
x. is, in the sole judgment of the Company, objectionable or restricts or inhibits any person from using or enjoying the Services or exposes the Company or its users to harm or liability of any type.
g. Submissions. Separate and apart from the User Content you provide as part of your use of the Services, you can submit questions, comments, feedback, suggestions, success stories, ideas, plans, notes, drawings, original or creative materials or other information relating to the Company and our Services (collectively, “Submissions”). Submissions, whether posted to the Services or provided to the Company by email or otherwise, are non-confidential and shall become the sole property of the Company. You hereby assign to the Company all right, title and interest, including without limitation all intellectual property rights, in and to any and all Submissions. The Company shall be entitled to the unrestricted use and dissemination of any Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
h. Social Networking Sites. If you have enabled the use of our Services through a third-party social networking or similar site or mobile or other application (a “Social Networking Site”), such as Facebook, Google or Twitter, you permit the Company to access certain information about you that is made available to the Company through or from that Social Networking Site. The information obtained by the Company varies by Social Networking Site and may be affected by the privacy settings you establish at that Social Networking Site, but can include information such as your name, profile picture, network, gender, username, user ID, age range or birthday, language, location, country, interests, contacts list, friends lists or followers and other information. By accessing or using our Services through a Social Networking Site, you are authorizing the Company to collect, store, retain and use, in accordance with our Privacy Policy, any and all of your information that the Company has obtained from the Social Networking Site, including to create a Company profile page and account for you. Depending on the Social Networking Site and your privacy settings, the Company may also post information to your Social Networking Site. Your agreement to the foregoing takes place when you “accept” or “allow” or “go to” (or other similar terms) our application on a Social Networking Site or the transfer of information to the Company from such site. If there is information about your “friends” or people you are associated with in your Social Networking Site account, the information we obtain about those persons may also depend on the privacy settings such people have with the applicable Social Networking Site. You acknowledge and agree that the Company is not responsible for, and has no control over, any applicable privacy settings on any Social Networking Sites (including any settings related to any messages or advertisements about the Company that the Social Networking Site may send to you or your friends). You should always review, and if necessary, adjust your privacy settings on Social Networking Sites before getting or using applications such as ours or linking or connecting your Social Networking Site account to the Services. You may also unlink your Social Networking Site account from the Services by adjusting your settings on the Social Networking Site.
5. PRIVACY
Please refer to our Privacy Policy for information about how the Company collects, uses, stores and discloses personally identifiable information from its users. You understand and agree that if you post any content, information or material of a personal or private nature in your profile or in any public areas of the Company or post or provide to the Company any information or content which is intended to be shared with other users, such content, information and materials will be shared with others accordingly, and you hereby consent to such sharing. You understand that by using the Services you consent to the collection, use and disclosure of your personally identifiable information and aggregate data as set forth in our Privacy Policy, and to have your personally identifiable information collected, used, transferred to and processed in the United States or any other country in which we process your data or make the Services available. You also consent to receive emails from us in connection with the use or promotion of the Services.
6. INTELLECTUAL PROPERTY RIGHTS AND LIMITED LICENSE
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, designs, illustrations, Company logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, information, data, other files and the arrangement thereof and User Content belonging to other users (the “Proprietary Materials”), and all intellectual property rights related thereto, are the exclusive property of the Company and its licensors (including other users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights of the Company.
You are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, freely revocable license to access and use the Services as permitted by the features of the Services, subject to the terms and conditions of this Agreement. You agree that you will not (i) copy, modify, publish, adapt, sublicense, translate, sell, distribute, transmit, perform, display, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Proprietary Materials or the Services or cause others to do so; (ii) “frame” or “mirror” any part of the Services, without our prior written authorization; (iii) use meta tags or code or other devices containing any reference to the Company or the Services in order to direct any person to any other website for any purpose; (iv) resell or make any commercial use of the Services; (v) use any data mining, robots, or similar data gathering or extraction methods or otherwise collect any pictures, descriptions, data or other content from the Services; (vi) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Services; (vii) use any automated methods or processes to create user accounts or access the Services or (viii) use the Proprietary Materials or the Services other than for their intended purpose. Any use of the Services or Proprietary Materials other than as expressly authorized herein, without the prior written consent of the Company, is strictly prohibited and will violate and terminate the license granted herein. Such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in this Agreement shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The Company reserves all rights not expressly granted herein in the Services and the Proprietary Materials. This license is revocable at any time.
7. REPEAT INFRINGER POLICY
If you become aware of any violation of any intellectual property laws (in particular in respect of User Content) you should report this to us by emailing [email protected], including your name and address, details of the location of the content in question and details of the unlawful nature of the activity or the content.
The Company reserves the right to terminate, in its sole discretion, users who are deemed to be repeat infringers. The Company may also, in its sole discretion, limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
8. COPYRIGHT POLICY
If you are a copyright owner or an agent thereof and believe that anything on the sites infringes upon your copyrights, you may submit a notification of infringement pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on our website (please include URLs to help us identify the material); (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. the Company’s designated Copyright Agent to receive notifications of claimed infringement is:
Spark App Customer Care – Charm Labs LLC
Attn: Copyright Agent
3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009
[email protected] (only DMCA notices will be accepted at this email address; all other inquiries or requests will be discarded)
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying the Company and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with the Company’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
9. TRADEMARKS
“Spark”, “Spark Networks”, the Company’s logos and any other trade name or slogan contained in the Services are trademarks or service marks of the Company, its partners or its licensors and may not be copied, imitated or used, in whole or in part, without the prior written permission of the Company or the applicable trademark holder. In addition, the look and feel of the Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of the Company and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
10. HYPERLINKS
You are granted a limited, freely revocable, non-exclusive right to create a text hyperlink to the Company websites for noncommercial purposes, provided such link does not portray the Company or its Services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site is not directed at children and does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use the Company’s logo or proprietary graphics to link to any Company website without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any Company trademark, logo or other proprietary information, including the images found in the Services, the content of any text or the layout/design of any page or form contained in the Services without the Company’s express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of the Company or any third party.
The Company makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party websites accessible by hyperlink from the Services. Such sites are not under the control of the Company and the Company is not responsible for the content of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. the Company provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by the Company of any site or any information contained therein. When you leave the Services, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Services. You understand and agree that you access any such third-party sites and services at your own risk.
11. THIRD PARTY CONTENT
The Company may provide third party content on the Services and may provide links to web pages and content of third parties (collectively the “Third Party Content”) as a service to those interested in this information. The Company does not control, endorse or adopt any Third Party Content and makes no representations or warranties of any kind regarding the Third Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that the Company is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. Users use such Third Party Content contained therein at their own risk.
12. ADVERTISERS AND OTHER THIRD PARTIES
The Services may contain advertisements and promotions from third parties or may otherwise provide information about or links to third party products or services. Your dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. The Company is not responsible for, and does not endorse, any features, content, advertising, products, services or other materials on or available from third party sites. You agree that the Company shall not be responsible or liable, directly or indirectly, for any loss or damage of any sort incurred as the result of such dealings or as a result of the presence of such third party advertisers or third party information on the Services.
13. PAID SERVICES
a. General. If you purchase any Services that we offer for a fee (the “Paid Services”), such as a subscription to our Services or virtual coins (as described below), you authorize the Company and our designated payment processors to store your payment information and other related information. You also agree to pay the applicable fees for the Paid Services (including without limitation periodic fees for ongoing subscriptions (the “Subscription Fees”) as set forth on the Services) as they become due plus all related taxes (including without limitation sales and use taxes, duties or other governmental taxes or fees), and to reimburse us for all collection costs and interest for any overdue amounts. All fees and charges are nonrefundable and there are no refunds or credits for any partially used Paid Services (including partially used subscription periods) except (i) as expressly set forth in this Agreement, (ii) as otherwise required by applicable law and (iii) at the Company’s sole and absolute discretion. Fees for the Paid Services may be payable in advance, in arrears, per usage or as otherwise described when you initially purchase the Paid Services. All prices for Paid Services are subject to change without notice (except as otherwise described in this Section 13).
b. Payment Method. The Company may, from time to time, offer various payment methods, including without limitation payment by credit card, by debit card, by check, by certain mobile payment providers or by using PayPal. You authorize the Company to charge you for Paid Services through any payment method(s) you select when purchasing the Paid Services (the “Payment Method”) and you agree to make payment using such Payment Method(s) (we may, from time to time, receive and use updated payment method information provided by you or that financial institutions or payment processors may provide to us to update information related to your Payment Method(s), such as updated expiration dates or account numbers). Certain Payment Methods, such as credit cards and debit cards, may involve agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Methods (the “Payment Method Provider”). If we do not receive payment from your Payment Method Provider, you agree to directly pay all amounts due upon demand from us. Your non-termination or continued use of the Paid Services reaffirms that we are authorized to charge your Payment Method. The Company’s Paid Services may also be purchased through your accounts with certain third parties, such as your Apple iTunes account, your Google Play account or your Amazon account (a “Third Party Account”). If you purchase any Paid Services through a Third Party Account, billing for these Paid Services will appear through your Third Party Account. You should review the Third Party Account’s terms and conditions, which we do not control.
c. Automatic Renewal of Subscriptions. IF YOU PAY FOR A SUBSCRIPTION BY CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD IDENTIFIED ON OUR SERVICES OR A SOCIAL NETWORKING SITE AS INVOLVING AN AUTOMATICALLY RENEWING SUBSCRIPTION) AND YOU DO NOT CANCEL YOUR SUBSCRIPTION AS SET FORTH IN SECTION 13(d) BELOW PRIOR TO THE END OF THE SUBSCRIPTION TERM, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY EXTENDED AT THE END OF EACH TERM FOR SUCCESSIVE RENEWAL PERIODS OF THE SAME DURATION AS THE SUBSCRIPTION TERM ORIGINALLY SELECTED (FOR EXAMPLE, UNLESS YOU CANCEL, A ONE MONTH SUBSCRIPTION WILL AUTOMATICALLY RENEW ON A MONTHLY BASIS AND A SIX MONTH SUBSCRIPTION WILL AUTOMATICALLY RENEW ON A SIX MONTH BASIS). UNLESS OTHERWISE INDICATED IN ANY APPLICABLE ADDITIONAL TERMS OR COMMUNICATIONS WE SEND TO YOUR REGISTERED EMAIL ADDRESS, SUCH RENEWAL WILL BE AT THE SAME SUBSCRIPTION FEE AS WHEN YOU FIRST SUBSCRIBED, PLUS ANY APPLICABLE TAXES, UNLESS WE NOTIFY YOU AT LEAST 10 DAYS PRIOR TO THE END OF YOUR CURRENT TERM THAT THE SUBSCRIPTION FEE WILL INCREASE. YOU ACKNOWLEDGE AND AGREE THAT YOUR PAYMENT METHOD WILL BE AUTOMATICALLY CHARGED FOR SUCH SUBSCRIPTION FEES, PLUS ANY APPLICABLE TAXES, UPON EACH SUCH AUTOMATIC RENEWAL. YOU ACKNOWLEDGE THAT YOUR SUBSCRIPTION IS SUBJECT TO AUTOMATIC RENEWALS AND YOU CONSENT TO AND ACCEPT RESPONSIBILITY FOR ALL RECURRING CHARGES TO YOUR CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD, AS APPLICABLE) BASED ON THIS AUTOMATIC RENEWAL FEATURE WITHOUT FURTHER AUTHORIZATION FROM YOU AND WITHOUT FURTHER NOTICE EXCEPT AS REQUIRED BY LAW. YOU FURTHER ACKNOWLEDGE THAT THE AMOUNT OF THE RECURRING CHARGE MAY CHANGE IF THE APPLICABLE TAX RATES CHANGE OR IF YOU ARE NOTIFIED THAT THERE WILL BE AN INCREASE IN THE APPLICABLE SUBSCRIPTION FEES.
d. Cancellation of Subscriptions. TO CHANGE OR CANCEL YOUR SUBSCRIPTION AT ANY TIME, OTHER THAN PURSUANT TO SECTION 22, GO TO THE “SETTINGS” PAGE OF YOUR DATING PROFILE, CLICK ON “SUBSCRIPTION” AND FOLLOW THE INSTRUCTIONS. IF YOU PURCHASED A SUBSCRIPTION THROUGH A THIRD PARTY ACCOUNT, YOU WILL NEED TO CANCEL YOUR SUBSCRIPTION THROUGH THAT THIRD PARTY AND IN ACCORDANCE WITH THAT THIRD PARTY’S TERMS AND CONDITIONS. IF YOU CANCEL YOUR SUBSCRIPTION, OTHER THAN PURSUANT TO SECTION 22, YOUR SUBSCRIPTION BENEFITS WILL CONTINUE UNTIL THE END OF YOUR THEN CURRENT SUBSCRIPTION TERM, BUT YOUR SUBSCRIPTION WILL NOT BE RENEWED AFTER THAT TERM EXPIRES. YOU WILL NOT BE ENTITLED TO A PRORATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEES PAID FOR THE THEN CURRENT SUBSCRIPTION TERM, EXCEPT AS PROVIDED IN SECTION 22 OF THIS AGREEMENT OR AS REQUIRED BY APPLICABLE LAW.
e. Current Information Required. You agree to provide current, complete and accurate billing information and agree to promptly update all such information (such as changes in billing address, credit card number or credit card expiration date) as necessary for the processing of all payments that are due to the Company. You agree to promptly notify the Company if your Payment Method is canceled (for example, due to loss or theft) or if you become aware of a potential breach of security related to your Payment Method. If you fail to provide any of the foregoing information, you acknowledge that your current Payment Method may continue to be charged for Paid Services and you remain responsible for all such charges.
f. Change in Amount Authorized. If the total amount to be charged varies from the amount you authorized when purchasing any Paid Services (other than due to the imposition or change in the amount of taxes, including without limitation sales and use taxes, duties or other governmental taxes or fees), the Company will provide notice of the amount to be charged and the date of the charge at least 10 days before the scheduled date of the transaction. If you do not cancel your Paid Services before the increased price goes into effect, you agree to pay the increased price for the Paid Services. You agree that the Company may accumulate charges incurred and submit them as one or more aggregate charge during or at the end of each billing cycle. The Company will inform you of any additional charges that are accumulated.
g. Virtual Currency and Virtual Products. Please see our Virtual Goods and Currency Terms of Use here for additional terms applicable to the purchase and use of virtual currency and virtual products offered by us. Typically, our virtual currency may be used to purchase certain features or virtual goods in connection with our Services. Any virtual currency you receive as a promotion from us will be subject to the terms of our Virtual Goods and Currency Terms of Use.
h. Incorrect Payments and Errors. In the event that you submit to us a payment for Paid Services that does not match the price for the Paid Services you selected, the Company shall have the right, in its sole and absolute discretion, to (1) return or refund all or some of the amount of your payment, (2) apply all or some of your payment amount to other similar Paid Services that have a purchase price less than the amount of your payment, (3) apply all or some of the amount of your payment to the purchase of our virtual currency or (4) apply your payment in any combination of the foregoing ways. The Company reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
14. MOBILE SERVICES
You may access and use certain features of the Services using certain mobile devices (the “Mobile Services”). Your access and use of the Mobile Services is subject to the terms and conditions of this Agreement, including without limitation the terms and conditions regarding the use and submission of User Content, as well as any Additional Terms presented to you for your acceptance when you sign up to use our Mobile Services.
Please note that by accessing or using the Mobile Services, your carrier’s normal rates and fees, such as standard message and data rates, still apply and you are solely responsible for the payment of those fees.
15. DOWNLOADABLE APPLICATIONS
By using any downloadable application to enable your use of the Services, you are expressly confirming your acceptance of the terms and conditions of any End User License Agreement, or similar agreement, associated with the application provided at download or installation, or as may be updated from time to time.
16. MOBILE SOFTWARE
a. Mobile Software. We may make available software to access the Services via a mobile or tablet device (“Mobile Software”). Mobile Software also includes any updates, upgrades or other new features, functionality, improvements or enhancements to the Mobile Software and any on-line, read me, help files, or other related explanatory materials relating to the Mobile Software. To use the Mobile Software, you must have a device that is compatible with the Mobile Software. The Company does not warrant that the Mobile Software will be compatible with your device. The Company hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one Company account on one device owned or leased solely by you, for your personal use only. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; (v) delete the copyright and other proprietary rights notices on the Mobile Software; (vi) block, disable or otherwise affect any advertising, advertisement banner window, links to other sites and services, or other features that constitute an integral part of the Mobile Software; (vii) use the Mobile Software on any device that you do not own or control; or (viii) distribute or make the Mobile Software available over a network where it could be used by multiple devices at the same time. You agree to use your best efforts to prevent and protect the contents of the Mobile Software from unauthorized use or disclosure. You acknowledge that the Company may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your device. You consent to such automatic upgrading on your device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party End User License Agreement, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and the Company or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. The Company reserves all rights not expressly granted under this Agreement. Additional terms to those contained in this Section 16 may be contained in an End User License Agreement associated with any Mobile Software. Please see the applicable End User License Agreement for more information.
b. Mobile Software from iTunes or the App Store. The following applies to any Mobile Software you acquire or download from the iTunes Store or the App Store provided by Apple (“iTunes-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and the Company, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to the Company as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to the Company as provider of the software. You acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, the Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and the Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the iTunes-Sourced Software against you as a third party beneficiary thereof. Without limiting any other terms of this Agreement, you must comply with all applicable third party terms of agreement when using iTunes-Sourced Software.
c. Mobile Software from Google Play Store. The following applies to any Mobile Software you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Agreement is between you and the Company only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) the Company, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to the Company’s Google-Sourced Software.
d. No Support. This Agreement does not entitle you to receive from the Company, its licensors, or Apple, any hard-copy documentation, support, telephone assistance, maintenance, or enhancements or updates to the Mobile Software.
e. U.S. Government End Users. The Mobile Software was developed by private financing and constitutes a “Commercial Item,” as that term is defined at 48 C.F.R. §2.101. The Mobile Software consists of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1 through 227.7202-4, all U.S. Government end users acquire only those rights in the Mobile Software that are expressly provided by this Agreement. Consistent with 48 C.F.R. §12.211, all U.S. Government end users acquire only technical data and the rights in that data as expressly provided in this Agreement. Any use, reproduction, release, performance, display or disclosure of the Mobile Software by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement.
f. Export Controls. The Mobile Software and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country that is subject to a U.S. Government embargo or has been designated by the U.S. Government as a “terrorist supporting” country; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software and/or Documentation, you are agreeing to the foregoing and you represent and warrant that you (a) are not located in, under the control of, or a national or resident of any such country or on any such list, (b) are not listed on any U.S. Government list of prohibited or restricted parties, and (c) you agree to comply with all United States and foreign laws related to use of the Mobile Software and other Company Services.
g. Users Outside the U.S. If you are using the Mobile Software outside the U.S.A., then the following shall apply: (a) you confirm that this Agreement and all related documentation is and will be in the English language (please see Section 25 regarding any translations that are provided for your convenience); (b) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Mobile Software or any services accessed or used in connection with the Mobile Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
h. Injunctive Relief. You acknowledge and agree that your breach or threatened breach of this Section 16 shall cause the Company irreparable damage for which recovery of money damages would be inadequate and that the Company therefore may seek timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
17. FREE TRIALS AND PROMOTIONS
From time to time, we may offer free trials or other promotions (a “Promotion”). As an example, we may offer promotions that provide free subscriber-level access to the Services for a certain period of time. YOU MUST CANCEL YOUR SUBSCRIPTION (IN ACCORDANCE WITH SECTION 13(d) ABOVE) BEFORE THE END OF THE PROMOTION PERIOD IN ORDER TO AVOID BEING AUTOMATICALLY CHARGED FOR SUBSCRIPTION FEES. Furthermore, and for example, we may provide you with our virtual currency without charge. Any such virtual currency is subject to the terms of our Virtual Goods and Currency Terms of Use which can be found here. Additional Terms applicable to any Promotions may be provided.
18. DISCLAIMERS
THE COMPANY PROVIDES THE SITES, THE PROPRIETARY MATERIALS AND THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE EXPRESSLY DISCLAIM ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES (INCLUDING ALL PROPRIETARY MATERIALS AND OTHER INFORMATION AND CONTENT CONTAINED THEREIN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
THE COMPANY DOES NOT REPRESENT OR WARRANT THAT (A) YOUR USE OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, COMPLETE, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, (B) ANY DEFECTS IN THE SERVICES WILL BE CORRECTED OR (C) THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY DISCLAIMS LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, THE CONNECTIVITY AND AVAILABILITY OF THE SERVICES OR THE DELIVERY OF ANY MESSAGES.
THE COMPANY DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF OR SCREEN THE PERSONS SUBSCRIBING TO OR USING THE SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF THE SERVICES BY OTHER USERS OF THE COMMUNITY. THEREFORE, THE COMPANY DISCLAIMS ALL LIABILITY FOR YOUR INTERACTIONS WITH AND THE CONDUCT OF OTHER USERS AND FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION.
THE COMPANY DOES NOT: (i) GUARANTEE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION ON THE SERVICES, OR (ii) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY OR LIABILITY FOR THE CONDUCT OF ANY USERS OR MEMBERS OR FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN THE COMPANY. UNDER NO CIRCUMSTANCES WILL THE COMPANY BE RESPONSIBLE FOR ANY LOSS, DAMAGE OR HARM OF ANY KIND RESULTING FROM ANY USER CONDUCT OR FROM ANYONE’S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SERVICES, OR TRANSMITTED TO OR BY ANY USERS.
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES AND TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
19. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES, OR THE PROPRIETARY MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM THE COMPANY, OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE COMPANY’S RECORDS, PROGRAMS OR SERVICES. UNDER NO CIRCUMSTANCES WILL THE COMPANY’S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SERVICES, EXCEED THE GREATER OF (1) THE AGGREGATE AMOUNT OF FEES FOR PAID SERVICES PAID BY YOU DURING THE IMMEDIATELY PRECEDING SIX MONTHS OR (2) $50.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, IDENTITY THEFT AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS, MEETINGS OR OTHER INTERACTIONS WITH OTHER USERS OF THE SERVICES. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU.
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
20. GOVERNING LAW AND ARBITRATION; WAIVER; INDEMNIFICATION
Our goal is to resolve any disputes amicably and quickly and we encourage you to contact us and explain your complaint as soon as it arises.
a. Governing Law. This Agreement shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. Notwithstanding the preceding sentences with respect to the substantive law, the interpretation and enforcement of, and proceedings pursuant to, Section 20(b) of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16), and we expressly recognize and acknowledge the continuing applicability of our right to contract for binding arbitration and waiver of any right to participate in a class Action or jury trial, as set out in Section 20(b) hereof. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree that any claim or dispute you may have against the Company must be resolved in a federal or state court located in New York, NY, USA or as described in the Arbitration provision below. Both you and the Company retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below including any provisional relief required to prevent irreparable harm. You agree that the state or federal courts located in New York, NY, USA are the exclusive forum for any proceeding to confirm or vacate an arbitration award rendered in accordance with Section 20(b) hereof (or for any proceeding seeking relief in aid of such arbitration) or in the event that the Arbitration provision below is for any reason held to be unenforceable.
b. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM THE COMPANY. For any dispute with the Company, you agree to first contact us within 30 days of when the dispute arises at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that the Company has not been able to informally resolve a dispute it has with you within 60 days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief described in Section 20(a)) arising out of or in connection with or relating to the Services or this Agreement, or the breach or alleged breach thereof, including disputes related to the interpretation, applicability, enforceability or formation of this agreement to arbitrate (collectively, “Claims”), by binding arbitration by the Judicial Mediation and Arbitration Services (“JAMS”) under the JAMS Optional Expedited Procedures then in effect, except as provided herein. JAMS may be contacted at www.jamsadr.com. You will have the right to participate in the selection of the arbitrator, who may be selected by mutual agreement of the parties or by the procedures provided by JAMS if the parties are unable to agree on an arbitrator. Unless the parties agree otherwise, the arbitrator shall be an attorney licensed to practice in the location where the arbitration proceedings will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. The arbitration will be conducted in New York, NY, USA (or the nearest office to Santa Clara County), unless you request a hearing in your hometown area or you and the Company agree otherwise. The language to be used in the arbitral proceedings will be English, unless otherwise agreed by the parties. Payment of all filing, administration and arbitrator fees and costs will be governed by JAMS rules, but if you are unable to pay any of them, the Company will pay them for you. The award rendered by the arbitrator may include your costs of arbitration, your reasonable attorneys’ fees and your reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The Company will not seek its attorneys’ fees or costs in arbitration unless the arbitrator determines your claims or defenses are frivolous. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that party’s data security, intellectual property rights, or other proprietary rights. You may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. If your claim does not exceed $10,000, then you may choose whether the arbitration will be conducted solely on the basis of the documents that you and the Company submit to the arbitrator, through a telephonic hearing, or by an in-person hearing.
c. CLASS ACTION AND JURY TRIAL WAIVER. YOU AND THE COMPANY AGREE THAT ANY AND ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING.
d. Indemnity. You agree to defend, indemnify and hold the Company, its subsidiaries and affiliates, and each of their directors, officers, managers, agents, contractors, partners and employees harmless from any loss, liability, claim, damages, costs, debts, expenses or demand, including reasonable attorney’s fees, due to or arising from (i) your use of or access to the Services, including any data or content transmitted or received by you, or your inability to use the Services; (ii) any claim or damages that arise as a result of any of your User Content or any User Content that is submitted via your account; (iii) your conduct in connection with the Services or our users, (iv) your violation of any of the terms of this Agreement, including without limitation your breach of any of the representations and warranties above, (v) your violation of any rights of a third party, including without limitation any right of privacy or intellectual property rights; (vi) any other party’s access and use of the Services with your unique username, password or other appropriate security code or (viii) your violation of any applicable laws, rules or regulations.
e. Severability. If any clause within this Section 20 is found to be illegal or unenforceable, that clause will be severed from this section and the remainder of the section will be given full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
21. TERMINATION
Unless otherwise provided, this Agreement is effective upon your first use of the Services and shall remain in effect until it is terminated in accordance with the terms of this Agreement.
a. Termination by the Company. Notwithstanding anything to the contrary in this Agreement, the Company may suspend, deactivate or terminate your account and your right to use the Services and may block or prevent your access to and use of the Services at any time in its sole discretion, for any reason or no reason, without explanation and without notice (including without limitation blocking users or Members from certain IP addresses). We also reserve the right to remove or block access to your account information, User Content or data from our Services and any other records at any time at our sole discretion. In the event that we determine that your access to any of the Services is terminated or suspended for cause, such as due to any breach of this Agreement, flagged conduct or content, third party complaints or the implementation of our repeat infringer policy, you agree that all fees then paid to the Company by you will be nonrefundable, except as otherwise provided by law, and all outstanding or pending payments under the terms of your subscription will immediately be due and payable. All decisions as to the refundability of the fees are in the Company’s sole discretion. Notwithstanding the foregoing, you may dispute any refunds of fees pursuant to Section 20 of this Agreement.
b. Termination by You. In addition to any right to cancel your subscription pursuant to Section 22, below, you may deactivate or terminate your account at any time, for any or no reason, by accessing the “settings” page of your account or by contacting us as described above. Except as otherwise provided by law or under this Agreement, you will not be entitled to any refund of the fees you have paid to the Company and all outstanding or pending payments under the terms of your subscription will immediately be due and payable.
c. Survival. After your account is suspended, deactivated or terminated, all terms that by their nature may survive termination of this Agreement shall be deemed to survive such termination, including without limitation Sections 18, 19, 20 and 24.
22. CANCELLATION RIGHTS
In addition to the cancellation procedure set forth in Section 13(d) above, if you are a Company subscriber in one of the following states or provinces (as determined by the zip code / postal code you use at the time of your subscription), you have the right to cancel your subscription in accordance with the applicable terms described below for such state or province. The date of your subscription is the date that you sign up for the subscription through our Services. Upon cancellation of your subscription in accordance with this Section 22, your subscription benefits will terminate immediately.
a. Arizona. CANCELLATION. You have the right to cancel your subscription and/or upgrade(s) (including upgrades to a subscription and upgrades without a subscription), without any penalty or obligation, within three business days, excluding Sundays and holidays, following the date you purchased a subscription and/or upgrade(s). A signed written notice of cancellation (which includes your Company user name and the email address used to register for the Services) must be sent by certified mail to Spark App Customer Care – Charm Labs LLC, Attn: Customer Service, 3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009, or personally delivered to our offices at that address. Monies paid pursuant to any subscription and/or upgrade(s) for dating services shall be refunded within 30 days of receipt of the notice of cancellation.
b. California. CANCELLATION. You have the right to cancel your subscription and/or upgrade(s) (including upgrades to a subscription and upgrades without a subscription), without any penalty or obligation, at any time until midnight of the third business day after the day on which you purchased a subscription and/or upgrade(s). To cancel your subscription and/or upgrade(s), mail or deliver a signed and dated notice to Spark App Customer Care – Charm Labs LLC, Attn: Customer Service, 3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009, send an email to [email protected] or send a telegram which states that you are cancelling your subscription and/or upgrade(s) or words of a similar effect. Include your Company user name and the email address used to register for the Services with such notice. Notice of cancellation if given by mail, is effective when deposited in the mail properly addressed with postage prepaid. All moneys paid pursuant to any subscription and/or upgrade(s) for dating services shall be refunded within 10 days of receipt of the notice of cancellation.
c. Connecticut. NOTICE OF CANCELLATION. YOU MAY CANCEL THIS CONTRACT, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN THREE BUSINESS DAYS AFTER YOUR RECEIPT OF THIS CONTRACT BY MAILING THIS SIGNED AND DATED NOTICE OF CANCELLATION BY CERTIFIED OR REGISTERED UNITED STATES MAIL TO THE SELLER AT THE FOLLOWING ADDRESS: SPARK APP CUSTOMER CARE – CHARM LABS LLC, ATTN: REFUND REQUEST, 3731 W SOUTH JORDAN PARKWAY, SUITE 102-405, SOUTH JORDAN, UT 84009. IF YOU CANCEL, ANY PAYMENTS MADE BY YOU UNDER THE CONTRACT WILL BE RETURNED WITHIN TEN BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR CANCELLATION NOTICE. INCLUDE YOUR COMPANY USER NAME AND THE EMAIL ADDRESS USED TO REGISTER FOR THE SERVICES WITH SUCH NOTICE.
d. Illinois. CANCELLATION. You have the right to cancel your subscription and/or upgrade(s) (including upgrades to a subscription and upgrades without a subscription), without any penalty or obligation, within three business days after the first business day after the date you purchased a subscription and/or upgrade(s). A written notice of cancellation (which includes your Company user name and the email address used to register for the Services) must be sent by certified or registered mail to Spark App Customer Care – Charm Labs LLC, Attn: Customer Service, 3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009. Monies paid pursuant to any subscription and/or upgrade(s) for dating services shall be refunded within 30 days of receipt of the notice of cancellation.
e. Iowa. Notice of Cancellation. You have the right to cancel your subscription and/or upgrade(s) (including upgrades to a subscription and upgrades without a subscription), without any penalty or obligation, at any time prior to midnight of the third business day after the date you purchased a subscription and/or upgrade(s). A signed and dated written notice of cancellation (which includes your Company user name and the email address used to register for the Services) must be mailed or delivered to Spark App Customer Care – Charm Labs LLC, Attn: Refund Request,3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009 or send a telegram. Monies paid pursuant to any subscription and/or upgrade(s) for dating services shall be refunded within 10 business days of receipt of the notice of cancellation.
f. Minnesota. MEMBERS’ RIGHT TO CANCEL. If you wish to cancel this contract, you may cancel by delivering or mailing a written notice to us. The notice must say that you do not wish to be bound by the contract and must be delivered or mailed before midnight of the third business day after you purchased a subscription and/or upgrade(s). The notice must be delivered or mailed to: Spark App Customer Care – Charm Labs LLC, Attn: Refund Request, 3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009. If you cancel, we will return, within ten days of the date on which you give notice of cancellation, any payments you have made. Include your Company user name and the email address used to register for the Services with such notice.
g. New York. NOTICE OF CANCELLATION. YOU MAY CANCEL THIS CONTRACT, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN THREE (3) BUSINESS DAYS AFTER THE DATE OF THIS CONTRACT BY MAILING THIS SIGNED AND DATED NOTICE OF CANCELLATION BY CERTIFIED OR REGISTERED UNITED STATES MAIL TO THE SELLER AT SPARK APP CUSTOMER CARE – CHARM LABS LLC, ATTN: REFUND REQUEST, 3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009. IF YOU CANCEL, ANY PAYMENTS MADE BY YOU UNDER THE CONTRACT WILL BE RETURNED WITHIN TEN (10) BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR CANCELLATION NOTICE. INCLUDE YOUR COMPANY USER NAME AND THE EMAIL ADDRESS USED TO REGISTER FOR THE SERVICES WITH SUCH NOTICE.
h. North Carolina. NOTICE OF CANCELLATION. You may cancel your subscription and/or upgrade(s) (including upgrades to a subscription and upgrades without a subscription) at any time prior to midnight of the third business day after the date you purchased a subscription and/or upgrade(s). To cancel your subscription and/or upgrade(s), mail or deliver a written notice of cancellation (which includes your Company user name and the email address used to register for the Services) to Spark App Customer Care – Charm Labs LLC, Attn: Refund Request, 3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009 no later than midnight of the third business day after the date you purchased a subscription and/or upgrade(s). Notice of cancellation, if given by mail, is given when it is deposited in the United States mail properly addressed and postage prepaid. Payments made pursuant to any subscription and/or upgrade(s) for dating services shall be refunded within 30 days after the notice of cancellation is given.
i. Ohio. NOTICE OF CANCELLATION. You may cancel your subscription and/or upgrade(s) (including upgrades to a subscription and upgrades without a subscription) for any reason, without any penalty or obligation, until midnight of the third business day after the date you purchased a subscription and/or upgrade(s), or if the Services are not available when you purchased a subscription and/or upgrade(s), you may cancel your subscription and/or upgrade(s) prior to midnight of the seventh business day after the date on which you receive your first Service. A written notice of cancellation (which includes your Company user name and the email address used to register for the Services) must be sent by certified mail (return receipt requested) or delivered to Spark App Customer Care – Charm Labs LLC, Attn: Refund Request, 3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009, or sent by email to [email protected] or by a telegram. Notice of cancellation by certified mail is effective upon the date of post marking. Delivery is effective when delivered to the address above. When notice is sent by electronic mail, notice is effective when the electronic mail is sent to the Company’s electronic mail address.
j. Quebec, Canada. NOTICE OF CANCELLATION. You may cancel your subscription at any time. If you wish to cancel your subscription and claim a refund for the unused portion of the balance of your subscription term, you may send a signed and dated copy of your Notice of Cancellation to Spark App Customer Care – Charm Labs LLC, Attn: Refund Request,3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009. If you cancel under this provision, the Company will be entitled to retain a cancellation indemnity calculated in accordance with the Quebec Consumer Protection Act. Any payments made by you for the unused portion of your subscription (after deducting the cancellation indemnity) will be returned within ten (10) business days following receipt of your cancellation notice. You must include your Company user name and the email address used to register for the Services with your cancellation notice.
k. Rhode Island. NOTICE OF CANCELLATION. You may cancel your subscription and/or upgrade(s) (including upgrades to a subscription and upgrades without a subscription) at any time prior to midnight of the third business day after you purchased a subscription and/or upgrade(s) by mailing, by certified or registered United States mail, a signed and dated copy of this Notice of Cancellation at Spark App Customer Care – Charm Labs LLC, Attn: Refund Request,3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009. If you cancel under this provision, any payments made by you will be returned within ten (10) business days following receipt by the seller of your cancellation notice. Include your Company user name and the email address used to register for the Services with such notice.
l. Wisconsin. CANCELLATION AND REFUNDS. RIGHT TO CANCEL. You are permitted to cancel your subscription and/or upgrade(s) (including upgrades to a subscription and upgrades without a subscription) until midnight of the 3rd day after the date on which you signed the contract. If within this time period you decide you want to cancel this contract, you may do so by notifying the Company by any writing mailed or delivered to the Company at the address shown on the contract, within the previously described time period. If you do so cancel, any payments made by you will be refunded within 21 days after notice of cancellation is delivered, and any evidence of any indebtedness executed by you will be canceled by the Company and arrangements will be made to relieve you of any further obligation to pay the same. Include your Company user name and the email address used to register for the Services with such notice.
23. STATE SPECIFIC PROVISIONS
If you are a Company subscriber in one of the following states (as determined by the zip code you use at the time of your subscription), the provision(s) listed below for such state will apply. Unless otherwise stated, you may exercise any rights applicable to you by providing written notice to us (which includes your Company user name and the email address used to register for the Services) by mail at Spark App Customer Care – Charm Labs LLC, Attn: Refund Request,3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009.
a. California. The following additional provisions(s) apply if you are a California subscriber (as determined by the zip code you use at the time of your subscription):
i. If by reason of death or Disability (as defined below) you are unable to receive all services for which you have contracted, you and your estate may elect to be relieved of the obligation to make payments for the Services other than those received before death or the onset of disability. If you have prepaid any amount for Services, so much of the amount prepaid that is allocable to Services that you have not received shall be promptly refunded to you and your representative. “Disability” means a condition which precludes you from physically using the Services specified in the contract during the term of disability and the condition is verified in writing by a physician designated and remunerated by you. The written verification of the physician shall be presented to the Company. If the physician determines that the duration of the disability will be less than six months, we may extend the term of the contract for a period of six months at no additional charge to you in lieu of cancellation.
ii. You acknowledge that the Services are accessible online and are offered in many locations internationally and that therefore, there is no physical dating service office. Thus, you acknowledge and agree that for purposes of California Civil Code¬§ 1694.3(b), the term “Dating Service Office” shall mean any location where the Services are available. If you relocate your primary residence further than 50 miles from the Company’s Dating Service Office and you are unable to transfer the contract to a comparable facility, you may elect to be relieved of the obligation to make payment for services, other than those received prior to that relocation. Upon such election, if you have prepaid any amount for dating services, so much of the amount prepaid that is allocable to services that you have not received shall be promptly refunded to you If you elect to be relieved of further obligation pursuant to this subdivision, the Company may charge you a fee of $100.00 or, if more than half the life of the contract has expired, a fee of $50.00, not to exceed the amount of the refund to which you are entitled. Such fee shall be deducted from any refund which the Company is required to make to you.
b. Illinois. The following additional provision(s) apply if you are an Illinois subscriber (as determined by the zip code you use at the time of your subscription):
i. You acknowledge that the Services are accessible online and are offered in many locations internationally and that therefore, there is no physical dating service office. Thus, you acknowledge and agree that for purposes of the Illinois Dating Referral Services Act, the location of an “enterprise” shall mean any location where the Services are available. If you relocate your primary residence to a location that is more than 25 miles from where our Services are comparably offered, you may cancel this contract and shall be liable only for that portion of the charges allocable to the time before reasonable evidence of the relocation is presented to the Company plus a fee equal to the lesser of (1) 10% of the unused balance or (2) $50. Such fee shall be deducted from any refund which the Company is required to make to you.
ii. If by reason of death you are unable to receive all services for which you have contracted, your estate may elect to be relieved of the obligation to make payments for the Services other than those received before death. We shall have the right to require and verify reasonable evidence of the death.
c. New York. The following additional provisions(s) apply if you are a New York subscriber (as determined by the zip code you use at the time of your subscription):
i. If you subscribe for any Paid Services, the Company will provide a minimum of one match to you each month. In the event we do not provide at least one match for two or more successive months, you shall have the option to cancel this agreement by notifying us in writing at the address stated in this Agreement and to receive a refund of all monies paid pursuant to the cancelled contract; provided, however, that the Company shall retain as a cancellation fee 15% of the cash price or a pro rata amount for the number of referrals furnished to you, whichever is greater. This shall be your sole remedy for failure to provide the minimum number of referrals.
ii. Except in connection with any merger, sale of company assets, reorganization, financing, change of control or acquisition of all or a portion of the Company’s business by another company or third party or in the event of bankruptcy, the Company will not without the prior written consent of the purchaser sell, assign or otherwise transfer for business or for any other purpose to any person any information and material of a personal or private nature acquired from a purchaser directly or indirectly including but not limited to answers to tests and questionnaires, photographs or background information. You acknowledge and agree that if you post any information, including photographs, to the Services for posting on your profile or other areas of the Services, such information will be publicly accessible, and you are consenting to the display of such information on the Services.
iii. If you permanently relocate your primary residence further than 50 miles from any area in which the Company offers the Services, you may elect to terminate your subscription by notifying us in writing at Spark App Customer Care – Charm Labs LLC, Attn: Refund Request, 3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009. Upon such election, your subscription benefits will cease and you will receive a prorated refund of the Subscription Fee paid, less a termination fee of $50.00, not to exceed the amount of the refund to which you are entitled.
iv. You have the right to place your subscription on hold for a period of up to one year at any time. To do this, you must notify the Company in writing (which includes your Company user name and the email address used to register for the Services) at Spark App Customer Care – Charm Labs LLC, Attn: Refund Request, 3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009.
d. Ohio. The following additional provision(s) apply if you are an Ohio subscriber (as determined by the zip code you use at the time of your subscription):
i. If by reason of death or disability you are unable to receive the benefits from the Services, the contract shall be proportionally divided by all of the days in which the Services were made available to you as part of the contract offering, and you shall be liable for payments only for that portion of the contract that can be attributed to the period prior to your actual death or disability, exclusive of any period of time in which the Services were made available to you free of charge as part of the contract offering, and within 30 days after receiving notice of your death or disability, we shall refund your representative or you the amount paid in excess of the proportional amount. We shall have the right to require and verify reasonable evidence of the death or disability.
ii. If you relocate your residence 25 miles or more from any area in which the Company offers the Services, you may elect to terminate your subscription by notifying us in writing at Spark App Customer Care – Charm Labs LLC, Attn: Refund Request, 3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009 of your intention to relocate and requesting that the contract be terminated. Upon such election, your subscription benefits will cease and you will receive a prorated refund of the Subscription Fee paid.
24. MISCELLANEOUS
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. You agree that this Agreement, together with the Privacy Policy and any Additional Terms, contains the entire agreement between you and the Company regarding the use of the Services and supersedes all prior agreements and understandings (including without limitation any prior versions of this Agreement), except to the extent that the parties have entered into a separate written agreement applicable to the Services that expressly governs over this Agreement. If any provision, or any portion thereof, of this Agreement is held illegal, void, invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law and the remaining provisions will continue in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable. The failure of the Company to exercise or enforce any right or provision in this Agreement shall not operate as a waiver of such right or provision. Other than any affiliate of the Company, there are no third-party beneficiaries to this Agreement and no third party who is not a party to this Agreement shall have any right to enforce any term of this Agreement. Charm Labs LLC is a limited liability company organized under the laws of the State of Delaware, USA.
25. LANGUAGE OF THE AGREEMENT
The language of this Agreement is English. Where the Company has provided a translation of the English version of this Agreement, you agree that the translation is provided for your convenience only and that the English language version of this Agreement will govern your relationship with the Company. If there is any contradiction between what the English language version of this Agreement says and what a translation says, then the English language version will take precedence.
26. SPECIAL NOTICE TO CANADIAN MEMBERS
This Terms of Use Agreement applies to our Canadian Members with the following modifications. Section 20(a) (Arbitration) does not apply to Canadian Members. Section 20(b) (Class Action and Jury Trial Waiver) does not require a Canadian Member to waive a right to a class action proceeding. Notwithstanding paragraph (a) of Section 16(e) (Language) and Section 25 (Language), the French language version of this Terms of Service Agreement will govern for Quebec Members. For Quebec Members, Section 18 (Disclaimers) does not affect the legal warranty in Quebec and Section 18 (Limitation of Liability) does not excuse the Company from its own acts. Notwithstanding Section 20, this Agreement will be governed by the laws of the Province of Quebec for Quebec Members. References in this Section 26 to a Canadian Member or to a Quebec Member will be determined by the postal code of the Member used at the time of subscription.
Virtual Goods and Currency Terms of Use
Last Revised: March 24, 2020
PLEASE READ THESE VIRTUAL GOODS AND CURRENCY TERMS OF USE CAREFULLY. BY MAKING A PURCHASE OR USING OUR VIRTUAL PRODUCTS, SERVICES OR CURRENCY, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT PURCHASE OR USE OUR VIRTUAL PRODUCTS, SERVICES OR CURRENCY.
Certain virtual products and services (“Virtual Goods”) and virtual currency (“Coins”) may be made available to you from time to time by Charm Labs LLC or its subsidiaries or affiliated companies (collectively, “us”, “we” or the “Company”) through our websites, products, applications, which include mobile applications and applications available on social networking sites and other platforms, and services (collectively, the “Services”). Your purchases and uses of Virtual Goods and Coins through our Services are governed by these Virtual Goods and Currency Terms of Use (“VGC Terms of Use”) and by the Company Terms of Use, which is incorporated herein by reference. These VGC Terms of Use set out the legally binding terms for your purchase and use of our Virtual Goods and Coins and may be modified by us from time to time by posting the revised VGC Terms of Use on the applicable Service. Such changes shall apply to any purchases made after such changes are posted. Therefore, you should review these VGC Terms of Use prior to each purchase so you will understand the terms applicable to such transaction.
If you have any questions about these VGC Terms of Use, you may contact us by writing to us at: Spark App Customer Care – Charm Labs LLC, Attn: Virtual Goods Terms, 3731 W South Jordan Parkway, Suite 102-405, South Jordan, UT 84009.
1. PURCHASES
To purchase any of our virtual products or services, you must be a registered user of our Services and comply with these VGC Terms of Use (including the Company Terms of Use). You acknowledge that you are responsible for maintaining the security of, and restricting access to, your account and password, and you agree to accept responsibility for all purchases and other activities that occur under your account. We reserve the right to refuse or cancel orders or terminate accounts at any time in our sole discretion.
2. PAYMENT
By submitting an order for our Virtual Goods or Coins through our Services, you authorize the Company, or its designated payment processors, to charge the account you specify for the purchase amount. All prices we show on our Services are subject to change without notice. When you provide your payment information, including any credit card number, to us or our designated payment processors, you authorize us or our designated payment processors to store payment information and other related information.
3. TAXES
You will be responsible for any applicable sales or use taxes, duties, or other governmental taxes or fees payable in connection with your purchase of Virtual Goods or Coins. If you do not pay such sales or other tax or fees on a transaction, you will be responsible for such taxes or fees in the event that they are later determined to be payable on such purchases, and we reserve the right to collect such taxes or other fees from you at any time.
4. COINS
In our sole discretion, we may offer you the opportunity to obtain and redeem Coins for use with our Services. We may charge fees for the right to use Coins, or we may distribute the Coins without charge, each in our sole discretion. When you redeem Coins, we will redeem Coins that you have purchased before redeeming Coins that you have obtained on a promotional basis, or otherwise without charge. We have no obligation to continue offering any feature or function through the Services, including any feature or function that enables the use or redemption of Coins.
Your Coins will be stored in an account for you. The Coins may be redeemed solely by the Company through our Services, cannot be transferred to any other user or third party, cannot be redeemed for cash and are non-refundable except (i) as required by law or (ii) at our sole and absolute discretion. We may further restrict your ability to redeem your Coins based on your place of residence. For clarification, although you may buy Coins via mobile services, the Coins are not redeemable for content or services offered by any carrier.
While the Coins you purchase do not expire, you acknowledge and agree that if your account becomes Inactive (as defined below) or is deactivated (as described below), we may, without further notice to you, redeem all paid Coins remaining in your account for any Virtual Goods (as defined below) we select, in our sole discretion, and distribute such Virtual Goods, as applicable, to your “friends” (and, if you have no “friends” to any other users that we may identify, in our sole discretion). For purposes of this Section 4, the term “Inactive” means that, based on our records: (a) for a period of two (2) years, or more, you have not logged into your Company account; or (b) we have been unable to reach you to verify that you intend to continue use of your account. Coins that are obtained on a promotional basis, or otherwise without charge, may expire, be redeemed or removed from your account or be subject to other limitations at our sole discretion, including without limitation the actions described above if your account becomes inactive or is deactivated.
If you deactivate your Company account with our platform pursuant to the Company Terms of Use, your ability to redeem Coins may be terminated, without any right to refund or any other compensation for you. When we cancel or terminate access to your Coins account balance for violating these VGC Terms of Use or the Company Terms of Use, your right to use your Coins account balance immediately ceases.
Further, we may suspend or otherwise limit your access to your Coins if we suspect, in our sole discretion, fraudulent, abusive or unlawful activity associated with your account. When we suspend or limit access to your Coins account balance, your right to use your Coins account balance immediately ceases.
We may limit your use of the Coins service by applying limits to: the number of Coins you may have credited to your Coins account balance at one time; the number of Coins you may redeem within a given time period (for example, one day); the number of promotional Coins you may obtain in a single event; and other features and uses determined by us in our sole discretion.
If we post Coins to your account for an activity that is subsequently voided or canceled or that involves a returned item, then we will remove those Coins from your account. You must ensure that we properly post your Coins to your Coins account. If you believe that you have validly acquired Coins that we have not posted to your Coins account, you must contact us within one hundred twenty (120) days after the date you claimed to have acquired those Coins. We may require reasonable documentation to support your claim.
5. VIRTUAL GOODS
In our sole discretion, we may offer you the opportunity to redeem Coins for access to certain Virtual Goods through our Services. As part of these Services, and subject to the Company Terms of Use and these VGC Terms of Use, we grant you a limited, non-transferable, revocable license to use the Virtual Goods through our Services and send them to other users for use through the Services. Regardless of the use of the terms “purchase,” “buy,” “sell,” “order” or the like on our Services or in these VGC Terms of Use, you do not own any Virtual Goods and acknowledge that the Virtual Goods are a service of the Company and that you have only a license to use the Virtual Goods in accordance with these VGC Terms of Use. All use of the Virtual Goods is for personal, non-commercial use only. We will use commercially reasonable efforts to make Virtual Goods you have purchased available for use within a reasonable period of time after purchase. If you violate the Company Terms of Use or deactivate your Company account, our offering of Virtual Goods, and your license to any Virtual Goods, may also be cancelled, without any right to compensation for you.
The existence of a particular Virtual Good available for redemption with Coins is not a commitment by us to maintain or continue to make the particular Virtual Good available in the future. We may revise, discontinue, or modify Virtual Goods at any time without notification to you. We will have no liability of any kind if a product or service that you have ordered is unavailable. If necessary, we reserve the right to substitute items of equal or greater value when an item or service is unavailable or we may cancel your purchase.
The length of time you or your recipients may have access to Virtual Goods you purchase will be determined by us in our sole discretion. The images and other content included as part of Virtual Goods is part of our Proprietary Materials (as defined in the Company Terms of Use) and is subject to all terms and conditions regarding such Proprietary Materials as set forth in the Company Terms of Use. In addition, any message or other content that you may include with Virtual Goods must comply with all terms and conditions regarding content as set forth in the Company Terms of Use . Without limiting any of the foregoing, neither you nor any potential recipient of a Virtual Good may reproduce, distribute, transfer, modify or otherwise use Virtual Goods in any manner other than as expressly authorized by the Company.
6. ERRORS
While we attempt to be as accurate as possible and eliminate errors associated with our Services, we do not warrant that any product, service or description, photograph, pricing or other information is accurate, complete, reliable, current or error-free. In the event of an error, whether on our Services, in an order confirmation, in processing an order, delivering a Virtual Good or Coins or otherwise, we reserve the right to correct such error and revise your order accordingly if necessary (including charging the correct price) or to cancel the order and provide you with a merchandise or service credit (including issuing, at our option, Coins as described above), with a value at least equal to the amount charged to you. We reserve the right to determine and modify from time to time the exact nature of any such merchandise or service credit, including conversion into one or more different types of merchandise or service credits. Your sole remedy in the event of such error is to cancel your order and obtain a credit as set forth above. To request a credit, email us at [email protected]. You release us from all liability and claims of loss resulting from any error that you do not report to us within 120 days after the error first occurs. If you do not tell us within this time, we will not be required to correct the error.
7. DISCLAIMERS
ALL PRODUCTS AND SERVICES MADE AVAILABLE THROUGH THE OUR SERVICES, INCLUDING COINS AND VIRTUAL GOODS, ARE PROVIDED “AS-IS” AND THE COMPANY, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF PRODUCTS OR SERVICES. WE DO NOT REPRESENT OR WARRANT THAT PRODUCTS, SERVICES OR ANY PART THEREOF, ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT PRODUCTS OR SERVICES THAT ARE DOWNLOADED THROUGH OUR SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH CONTENT OR MATERIALS AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES.
Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us.
8. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY OR ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS AND SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR PURCHASE OR USE OF ANY VIRTUAL GOODS OR COINS, OR OTHER PRODUCTS OR SERVICES, INCLUDING VIRTUAL GOODS, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY’S AND ITS LICENSORS’ AND SUPPLIERS’ TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS YOU PAID FOR THE PRODUCTS OR SERVICES AND SHALL IN NO EVENT EXCEED $100. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
9. INDEMNITY
You agree to indemnify and hold the Company, its subsidiaries and affiliates, and each of their directors, officers, managers, agents, contractors, partners and employees harmless from any loss, liability, claim, damages, costs, expenses or demand, including reasonable attorney’s fees, due to or arising out of your purchase or use of any Virtual Goods or Coins, or other products or services made available through Services, any termination or suspension of your account or right to use Virtual Goods or Coins or any violation of these VGC Terms of Use, the Company Terms of Use, of any law or the rights of any third party.
10. MISCELLANEOUS
These VGC Terms of Use constitute the entire agreement between you and the Company regarding the subject matter set forth herein, and supersede all prior and contemporaneous agreements regarding the same. If any provision of these VGC Terms of Use is held illegal, void, invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law and the remaining provisions will continue in full force and effect. The failure of the Company to exercise or enforce any right or provision in these VGC Terms of Use shall not operate as a waiver of such right or provision. Other than any affiliate of the Company, there are no third-party beneficiaries to these VGC Terms of Use and no third party who is not a party to this agreement shall have any right to enforce any term of these VGC Terms of Use. In the event of a conflict between these VGC Terms of Use and the Company Terms of Use with respect to the terms of conditions of the Coins or any Virtual Good, these VGC Terms of Use shall be controlling.