(US users only)
Last updated: October 20, 2021
1. Your Relationship With Us
Welcome to Sparkze (the “Platform”), which is provided by Alchemi Interactive Communication Group Int’l Inc. in the United States (collectively such entities will be referred to as “Sparkze”, “we” or “us”).
The Terms form a legally binding agreement between you and us. Please take the time to read them carefully.
ARBITRATION NOTICE FOR USERS IN THE UNITED STATES: THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND SPARKZE AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND SPARKZE WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION
2. Accepting the Terms
You understand and agree that your access or use of the Services constitutes your acceptance of the Terms.
3. Changes to the Terms
We amend these Terms from time to time, for instance when we update the functionality of our Services, when we combine multiple apps or services operated by us or our affiliates into a single combined service or app, or when there are regulatory changes. We will use commercially reasonable efforts to generally notify all users of any material changes to these Terms, such as through a notice on our Platform, however, you should look at the Terms regularly to check for such changes. We will also update the “Last Updated” date at the top of these Terms, which reflect the effective date of such Terms. Your continued access or use of the Services after the date of the new Terms constitutes your acceptance of the new Terms. If you do not agree to the new Terms, you must stop accessing or using the Services. You should print off or save a local copy of the Terms for your records.
4. Your Account with Us
To access or use some of our Services, you must create an account with us. When you create this account, you must provide accurate and up-to-date information. It is important that you maintain and promptly update your details and any other information you provide to us, to keep such information current and complete. You may create only one account with us.
It is important that you keep your account password confidential and that you do not disclose it to any third party. If you know or suspect that any third party knows your password or has accessed your account, you must notify us immediately at: firstname.lastname@example.org.
You agree that you are solely responsible (to us and to others) for the activity that occurs under your account.
We reserve the right to suspend, disable or ban use of your user account at any time, including if you have failed to comply with any of the provisions of these Terms, or if activities occur on your account which, in our sole discretion, would or might cause damage to or impair the Services or infringe or violate any third party rights, or violate any applicable laws or regulations.
If you no longer want to use our Services again, and would like your account deleted, contact us at: email@example.com. We will provide you with further assistance and guide you through the process. Once you choose to delete your account, you will not be able to reactivate your account or retrieve any of the content or information you have added.
5. Recordings of Activities on the Services, Including You
Sparkze may make and use recordings and other reproductions (e.g., audio-visual recordings) of video game shows and certain other activities made available via the Services, including the users who participate in such video game shows and other activities, and anything those users do and say during such video game show or activity. Those recordings and reproductions will be considered Sparkze Content (as defined below). Sparkze may use and distribute the recordings and reproductions as it determines in its sole discretion, including distribution online and elsewhere, and use for marketing purposes.
In exchange for the opportunity to participate in video game shows and other activities, and Sparkze’s marketing efforts, you hereby consent and irrevocably give the absolute right and unrestricted permission to Sparkze, anyone acting under its authority, and its successors and assigns, to make and use recordings and reproductions of your name, likeness, voice, persona, words, actions and/or biography, worldwide, on a royalty-free basis, in any form or format (including without limitation text, films, video recordings, images, photographs [still, moving, single, or multiple], drawings, and/or digital formats), for purposes of displaying the recordings and reproductions of the video game shows and other activities, and for advertising, publicity, trade or any other lawful purposes in any manner or media whatsoever (including without limitation, use in books, newspapers, magazines, advertisements, brochures, programs, television, radio, video, electronic media, electronic mail, and/or computer networks such as the Internet).
Sparkze may crop, edit and otherwise alter any such reproductions or depictions and combine them with other text, images, graphic elements, and/or other materials. You understand that with respect to these recordings and reproductions, Sparkze (or its designee, assignee, successor or affiliate) solely has the right to copyright the recordings and reproductions, and to exploit such material in accordance with these Terms. You understand that the recordings and reproductions may be posted in digital format without encryption on a worldwide computer network, that digitized images and other materials can often be easily copied, altered and/or republished, and that the security and access measures employed by Sparkze, if any, may not be adequate to prevent interception, copying or misuse of such materials. You waive the opportunity and right to inspect, preview or approve Sparkze’s recordings and reproductions or any use to which they may be put.
You release Sparkze and its officers, directors, employees, agents and representatives, and those acting under its authority, from all debts, claims or liabilities of any kind arising directly or indirectly in connection with the recordings and reproductions, and the creation, use, publication, or broadcast thereof, including but not limited to claims based on invasion of privacy, defamation, or right of publicity.
All rights granted in this section are assignable by Sparkze to any third party without restriction.
The above terms in this section shall be binding upon you and your heirs, legal representatives, and assigns.
6. Your Access to and Use of Our Services
Your access to and use of the Services is subject to these Terms and all applicable laws and regulations. You may not:
access or use the Services if you are not fully able and legally competent to agree to these Terms;
make unauthorized copies, modify, adapt, translate, reverse engineer, disassemble, decompile or create any derivative works of the Services or any content included therein, including any files, tables or documentation (or any portion thereof) or determine or attempt to determine any source code, algorithms, methods or techniques embodied by the Services or any derivative works thereof;
distribute, license, transfer, or sell, in whole or in part, any of the Services or any derivative works thereof;
market, rent or lease the Services for a fee or charge, or use the Services to advertise or perform any commercial solicitation;
use the Services, without our express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
interfere with or attempt to interfere with the proper working of the Services, disrupt our website or any networks connected to the Services, or bypass any measures we may use to prevent or restrict access to the Services;
incorporate the Services or any portion thereof into any other program or product;
use automated scripts to collect information from or otherwise interact with the Services;
impersonate any person or entity, or falsely state or otherwise misrepresent you or your affiliation with any person or entity, including giving the impression that any content you upload, post, transmit, distribute or otherwise make available emanates from the Services;
intimidate or harass another, or promote sexually explicit material, violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
use or attempt to use another’s account, service or system without authorization from Sparkze, or create a false identity on the Services;
use the Services in a manner that may create a conflict of interest or undermine the purposes of the Services;
use the Services to upload, transmit, distribute, store or otherwise make available in any way:
files that contain viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful;
any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other prohibited form of solicitation;
any private information of any third party, including addresses, phone numbers, email addresses, number and feature in the personal identity document (e.g., National Insurance numbers, state driver’s license numbers, passport numbers) or credit card numbers;
any material which does or may infringe any copyright, trademark or other intellectual property or privacy rights of any other person;
any material which is defamatory of any person, obscene, offensive, pornographic, hateful or inflammatory;
any material that would constitute, encourage or provide instructions for a criminal offense, dangerous activities or self-harm;
any material that is deliberately designed to provoke or antagonize people, especially trolling and bullying, or is intended to harass, harm, hurt, scare, distress, embarrass or upset people;
any material that contains a threat of any kind, including threats of physical violence;
any material that is racist or discriminatory, including discrimination on the basis of someone’s race, religion, age, gender, disability or sexuality;
any material that includes any comments, opinions, analysis or recommendations that you are not properly licensed or otherwise qualified to provide; or
material that, in the sole judgment of Sparkze, is objectionable or which restricts or inhibits any other person from using the Services, or which may expose Sparkze, the Services or its users to any harm or liability of any type.
use screen reader technology, algorithms, or any other automated technological means to interpret, analyze, research, or gain unlawful information about a question, game player, or game host, or submit an answer to a question or other form of interaction to or between other users of the Services (e.g., game players, hosts or afterparty participants);
log into an Account on multiple devices simultaneously or log into multiple accounts at the same time;
PLEASE NOTE THAT WE ONLY PROVIDE OUR PLATFORM FOR DOMESTIC HOUSEHOLD AND PRIVATE USE. YOU AGREE NOT TO USE OUR PLATFORM FOR ANY COMMERCIAL OR BUSINESS PURPOSES
In addition to the above, your access to and use of the Services must, at all times, be compliant with our Community Guidelines.
For the avoidance of doubt, we reserve the right to refuse to provide Services to you, terminate your account or limit your access to the Services, in our sole discretion, if you violate any of the foregoing restrictions or any of the Terms.
We also reserve the right, at any time and without prior notice, to remove or disable access to content at our discretion for any reason or no reason. Some of the reasons we may remove or disable access to content may include finding the content objectionable, in violation of these Terms or our Community Policy, or otherwise harmful to the Services or our users.
Our automated systems may analyze the content of messages that you send via the Platform to provide you personally relevant product features, such as customized search results, tailored advertising, and spam and malware detection. This analysis occurs as the content is sent, received, and when it is stored.
YOU ARE RESPONSIBLE FOR ANY MOBILE CHARGES THAT MAY APPLY TO YOUR USE OF THE SERVICE, INCLUDING TEXT-MESSAGING AND DATA CHARGES. IF YOU’RE UNSURE WHAT THOSE CHARGES MAY BE, YOU SHOULD ASK YOUR SERVICE PROVIDER BEFORE USING THE SERVICE.
7. Intellectual Property Rights
We respect intellectual property rights and ask you to do the same. As a condition of your access to and use of the Services, you agree to the terms of the Copyright Policy. Please see our Copyright Policy for additional information about intellectual property infringement claims.
As between you and Sparkze, all content, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music on and “look and feel” of the Services, and all intellectual property rights related thereto (the “Sparkze Content”), are either owned or licensed by Sparkze, it being understood that, as between Sparkze and you, you (or your licensors) will own any User Content (as defined below) you upload or transmit through the Services. Use of the Sparkze Content or materials on the Services by you for any purpose not expressly permitted by the Terms is strictly prohibited. Such content may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed or otherwise exploited for any purpose whatsoever without our or, where applicable, our licensors’ prior written consent. We and our licensors reserve all rights not expressly granted in and to the Sparkze Content.
You acknowledge and agree that we may generate revenues, increase goodwill or otherwise increase our value from your use of the Services and the Sparkze Content, including, by way of example and not limitation, through the sale of advertising, sponsorships, promotions, games, usage data and Gifts (defined below), and except as specifically permitted by us in these Terms or in another agreement you enter into with us in a writing executed by you and us, you will have no right to share in any such revenue, goodwill or value whatsoever. You further acknowledge that, except as specifically permitted by us in these Terms or in another agreement you enter into with us in a writing executed by you and us, you (i) have no right to receive any income or other consideration from any Sparkze Content or User Content (defined below) or any use of any musical works, sound recordings or audiovisual clips made available to you on or through the Services, including in any User Content created by you, and (ii) are prohibited from exercising any rights to monetize or obtain consideration from any Sparkze Content or User Content within the Services or on any third party service (e.g., you cannot claim User Content that has been uploaded to a social media platform such as YouTube for monetization).
Subject to the terms and conditions of the Terms, you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, revocable, license to access and use the Services in the United States, including the right to download the Platform on a permitted device, and to access the Sparkze Content solely for your personal, non-commercial use through your use of the Services and solely in compliance with these Terms. Sparkze reserves all rights not expressly granted herein in the Services and the Sparkze Content. You acknowledge and agree that Sparkze may terminate this license at any time for any reason or no reason.
NO RIGHTS ARE LICENSED WITH RESPECT TO SOUND RECORDINGS AND THE MUSICAL WORKS EMBODIED THEREIN THAT ARE OR WILL BE MADE AVAILABLE FROM OR THROUGH THE SERVICE.
You acknowledge and agree that when you view content provided by others or play one-on-one or group games on the Services, you are doing so at your own risk. The content on our Services is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our Services.
We make no representations, warranties or guarantees, whether express or implied, that any Sparkze Content or User Content is accurate, complete or up to date.
Where our Services contain links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them.
You acknowledge that we have no obligation to pre-screen, monitor, review, or edit any content posted by you and other users on the Services (including User Content).
Users of the Services may be permitted to upload, post or transmit (such as via a mobile device library, group video game or stream) or otherwise make available content through the Services including, without limitation, text, photographs, user videos, sound recordings and the musical works embodied therein, including videos that incorporate locally stored sound recordings from your personal music library and ambient noise (“User Content”). Users of the Services may also extract all or any portion of User Content created by another user to produce additional User Content, including collaborative User Content with other users, that combine and intersperse User Content generated by more than one user. Users of the Services may also overlay music, graphics, stickers, and other elements provided by Sparkze onto this User Content and transmit this User Content through the Services. The information and materials in the User Content, including User Content that includes Sparkze Elements, have not been verified or approved by us. The views expressed by other users on the Services (including through use of the virtual gifts) do not represent our views or values.
Whenever you access or use a feature that allows you to upload or transmit User Content through the Services (including via certain third party social media platforms such as Instagram, Facebook, YouTube, or TikTok), or to make contact with other users of the Services, you must comply with the Term, including the standards set out at “Your Access to and Use of Our Services” above. You may also choose to upload or transmit your User Content (but not that of any other user), including User Content that includes Sparkze Elements, on sites or platforms hosted by third parties. If you decide to do this, you must comply with their content guidelines as well as with the Term (including the standards set out at “Your Access to and Use of Our Services” above). As noted above, these features may not be available to all users of the Services, and we have no liability to you for limiting your right to certain features of the Services.
You warrant that any such contribution does and will comply with the Terms.
Any User Content will be considered non-confidential and non-proprietary. You must not post any User Content on or through the Services or transmit to us any User Content that you consider to be confidential or proprietary. When you submit User Content through the Services, you represent that you own all rights in and to that User Content, or you have received all necessary permissions or clearances from, or are authorized by, the owner(s) of the content to submit it to the Services and grant the license set forth herein.
If you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not post such sound recordings to the Services unless you have all permissions, clearances from, or are authorized by, the owner of any part of the content to submit it to the Services
By submitting User Content via the Services, you hereby grant us an unconditional, irrevocable, non-exclusive, royalty-free, fully transferable, perpetual worldwide license to use, modify, adapt, reproduce, make derivative works of, publish and/or transmit, and/or distribute and to authorize other users of the Services and other third-parties to view, access, use, download, modify, adapt, reproduce, make derivative works of, publish, transmit and otherwise use such User Content in any format and on any platform, either now known or hereinafter invented (including, without limitation, those rights that are granted to you in these Terms with respect to the User Content of others).
You further grant us a royalty-free license to use your username, image, voice, videos, and likeness to identify you as the source of any of your User Content.
For the avoidance of doubt, the rights granted in the preceding paragraphs of this Section include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform and communicate to the public sound recordings (and the musical works embodied therein), all on a royalty-free basis. This means that you are granting us the right to use your User Content without the obligation to pay royalties to any third party, including, but not limited to, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a performing rights organization (e.g., ASCAP, BMI, SESAC, etc.) (a “PRO”), a sound recording PRO (e.g., SoundExchange), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of User Content.
Specific Rules for Musical Works and for Recording Artists. If you are a composer or author of a musical work and are affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through these Terms in your User Content to us. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in these Terms in your User Content or have such music publisher enter into these Terms with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in these Terms. If you are a recording artist under contract with a record label, then you are solely responsible for ensuring that your use of the Services is in compliance with any contractual obligations you may have to your record label, including if you create any new recordings through the Services that may be claimed by your label.
Through-To-The-Audience Rights. All of the rights you grant in your User Content in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of third party services will not have any separate liability to you or any other third party for User Content posted or used on such third party service via the Services.
Waiver of Rights to User Content. By posting User Content to or through the Services, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Services.
We also have the right to disclose your identity to any third party who is claiming that any User Content posted or uploaded by you to our Services constitutes a violation of their intellectual property rights, or of their right to privacy.
We, or authorized third parties, reserve the right to cut, crop, edit or refuse to publish your content at our or their sole discretion. We have the right to remove, disallow, block or delete any posting or upload you make on our Services if, in our opinion, your post or upload does not comply with the content standards set out at “Your Access to and Use of Our Services” above or any other Terms. In addition, we have the right – but not the obligation – in our sole discretion to remove, disallow, block or delete any User Content (i) that we consider to violate these Terms, or (ii) in response to complaints from other users or third parties, with or without notice and without any liability to you. As a result, we recommend that you save copies of any User Content that you post to the Services on your personal device(s) in the event that you want to ensure that you have permanent access to copies of such User Content. We do not guarantee the accuracy, integrity, appropriateness or quality of any User Content, and under no circumstances will we be liable in any way for any User Content.
You control whether your User Content is made publicly available on the Services to all other users of the Services or only available to people you approve. To restrict access to your User Content, you should select the privacy setting available within the Platform.
We accept no liability in respect of any content submitted by users and published by us or by third parties.
If you wish to file a complaint about information or materials uploaded by other users, contact us at: firstname.lastname@example.org
If the complaint involves a claim of copyright or trademark infringement, please see our Copyright Policy.
While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending us or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to us, you agree that:
Sparkze has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
Feedback is provided on a non-confidential basis, and we are not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and You irrevocably grant us perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
You agree to defend, indemnify, and hold harmless Sparkze, its parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees, agents and advisors from any and all claims, liabilities, costs, and expenses, including, but not limited to, attorneys’ fees and expenses, arising out of or in connection with a breach by you (or any user of your account) of these Terms; a breach of your obligations, representation and warranties under these Terms; or your User Content (including, without limitation, any claims that your User Content infringes the intellectual property or other proprietary rights of any third party, including any rights of privacy or right of publicity).
10. EXCLUSION OF WARRANTIES
NOTHING IN THESE TERMS SHALL AFFECT ANY STATUTORY RIGHTS THAT YOU CANNOT CONTRACTUALLY AGREE TO ALTER OR WAIVE AND ARE LEGALLY ALWAYS ENTITLED TO AS A CONSUMER.
THE SERVICES ARE PROVIDED “AS IS” AND WE MAKE NO WARRANTY OR REPRESENTATION TO YOU WITH RESPECT TO THEM. IN PARTICULAR WE DO NOT REPRESENT OR WARRANT TO YOU THAT:
YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS;
YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR;
ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND
DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
NO CONDITIONS, WARRANTIES OR OTHER TERMS (INCLUDING ANY IMPLIED TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE OR CONFORMANCE WITH DESCRIPTION) APPLY TO THE SERVICES EXCEPT TO THE EXTENT THAT THEY ARE EXPRESSLY SET OUT IN THE TERMS.
WE MAY CHANGE, SUSPEND, WITHDRAW OR RESTRICT THE AVAILABILITY OF ALL OR ANY PART OF OUR SERVICES FOR BUSINESS AND OPERATIONAL REASONS AT ANY TIME WITHOUT NOTICE
11. LIMITATION OF LIABILITY
NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
SUBJECT TO THE PARAGRAPH ABOVE, WE SHALL NOT BE LIABLE TO YOU FOR:
(I) ANY LOSS OF PROFIT OR BUSINESS (WHETHER INCURRED DIRECTLY OR INDIRECTLY);
(II) ANY LOSS OF GOODWILL OR BUSINESS REPUTATION;
(III) ANY LOSS OF OPPORTUNITY;
(IV) ANY LOSS OF DATA SUFFERED BY YOU;
(V) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES WHICH MAY BE INCURRED BY YOU;
ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF:
ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICE;
ANY CHANGES WHICH WE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
YOUR FAILURE TO PROVIDE US WITH ACCURATE ACCOUNT INFORMATION; OR
YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
IF, NOTWITHSTANDING THE FOREGOING, WE ARE FOUND LIABLE FOR AN LOSS OR DAMAGE RELATING TO THE SERVICES, ANY SUCH LOSS OR DAMAGES WILL BE LIMITED TO THE GREATER OF (1) THE AMOUNT PAID BY YOU TO SPARKZE WITHIN THE LAST 12 MONTHS, OR (2) $[X].
IF DEFECTIVE DIGITAL CONTENT THAT WE HAVE SUPPLIED DAMAGES A DEVICE OR DIGITAL CONTENT BELONGING TO YOU AND THIS IS CAUSED BY OUR FAILURE TO USE REASONABLE CARE AND SKILL, WE WILL EITHER REPAIR THE DAMAGE OR PAY YOU COMPENSATION. HOWEVER, WE WILL NOT BE LIABLE FOR DAMAGE THAT YOU COULD HAVE AVOIDED BY FOLLOWING OUR ADVICE TO APPLY AN UPDATE OFFERED TO YOU FREE OF CHARGE OR FOR DAMAGE THAT WAS CAUSED BY YOU FAILING TO CORRECTLY FOLLOW INSTALLATION INSTRUCTIONS OR TO HAVE IN PLACE THE MINIMUM SYSTEM REQUIREMENTS ADVISED BY US.
THE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. THESE LIMITATIONS ON OUR LIABILITY TO YOU SHALL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICES, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE US AND OUR AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
12. Other Terms
Entire Agreement. The Terms constitute the whole legal agreement between you and Sparkze and govern your use of the Services and completely replace any prior agreements between you and Sparkze in relation to the Services.
Links. You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link to our Services in any website that is not owned by you. The website in which you are linking must comply in all respects with the content standards set out in the Terms, including at “Your Access to and Use of Our Services” above. We reserve the right to withdraw linking permission without notice.
No Waiver. Our failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right.
Security. We do not guarantee that our Services will be secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programs and platform to access our Services. You should use your own virus protection software.
Severability. If any court of law, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.
ARBITRATION AND CLASS ACTION WAIVER. This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.
Informal Process First. You agree that in the event of any dispute between you and Sparkze, you will first contact Sparkze and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
Arbitration Agreement. After the informal dispute resolution process any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of Sparkze’s services and/or products, including the Services, or relating in any way to the communications between you and Sparkze or any other user of the Services, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and Sparkze. However, notwithstanding anything to the contrary in the Terms, this agreement to arbitrate does not (a) govern any Claim by Sparkze for infringement of its intellectual property or access to the Services that is unauthorized or exceeds authorization granted in these Terms or (b) bar you from making use of applicable small claims court procedures in appropriate cases. If you are an individual you may opt out of this arbitration agreement within thirty (30) days of the first of the date you access or use this Services by following the procedure described below.
You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Sparkze are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive any termination of these Terms.
If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to:
Alchemi Interactive Communication Group Int’l Inc.
8721 Santa Monica Blvd
West Hollywood CA 90069
The arbitration will be administered by the American Arbitration Association (AAA) under its rules including, if you are an individual, the AAA’s Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Services on behalf of an entity, the AAA’s Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. If you are an individual and have not accessed or used the Services on behalf of an entity, we will reimburse those fees for claims where the amount in dispute is less than $10,000, unless the arbitrator determines the claims are frivolous, and we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this agreement to arbitrate agreement, including any claim that all or any part of the Terms arbitration agreement are void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.
IF YOU DO NOT WANT TO ARBITRATE DISPUTES WITH SPARKZE AND YOU ARE AN INDIVIDUAL, YOU MAY OPT OUT OF THIS ARBITRATION AGREEMENT BY SENDING AN EMAIL TO SUPPORT@SPARKZE.APP WITHIN THIRTY (30) DAYS OF THE FIRST OF THE DATE YOU ACCESS OR USE THE SERVICES.
Class Action Waiver. Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
If this class action waiver is found to be unenforceable, then the entirety of the arbitration provisions of these terms, if otherwise effective, will be null and void.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and Sparkze each waive any right to a jury trial.
California Consumer Rights Notice. Under California Civil Code Section 1789.3, California users of the Services receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at the contact information set forth at: https://www.dca.ca.gov/about_us/contactus.shtml.
Exports. You agree that you will not export or re-export, directly or indirectly the Services and/or other information or materials provided by Sparkze hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List.
U.S. Government Restricted Rights. The Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
To the extent permitted by applicable law, the following supplemental terms shall apply when accessing the Platform through specific devices:
Notice regarding Apple.
By downloading the Platform from a device made by Apple, Inc. (“Apple”) or from Apple’s App Store, you specifically acknowledge and agree that:
These Terms are between Sparkze and you; Apple is not a party to these Terms.
Apple is not responsible for the Platform or the content thereof and has no obligation whatsoever to furnish any maintenance or support services with respect to the Platform.
In the event of any failure of the Platform to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Platform, if any, to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Platform, or any responsibility for any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any applicable warranty.
Apple is not responsible for addressing any claims by you or a third party relating to the Platform or your possession or use of the Platform, including without limitation (a) product liability claims; (b) any claim that the Platform fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Platform or your possession and use of the Platform infringes such third party’s intellectual property rights, Apple is not responsible for the investigation, defense, settlement or discharge of such intellectual property infringement claim.
You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
You agree to comply with applicable third party terms when using the Platform (e.g., data service agreements).
Apple and its subsidiaries are third party beneficiaries of these Terms and upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary hereof.
Sparkze expressly authorizes use of the Platform by multiple users through the Family Sharing or any similar functionality provided by Apple.