Effective May 1st, 2024
This Terms of Service Agreement ("Agreement") forms a binding contract between you ("Customer") and SPRKR Technologies Inc. ("SPRKR", "we", "us"). By clicking "I ACCEPT" or by accessing or using our Services, you agree to be bound by this Agreement, which governs your use of our Services.
Please read this Agreement carefully. It includes an arbitration agreement and a class action/jury trial waiver that require using arbitration on an individual basis to resolve disputes, unless you opt out as described in Section 11(b).
Effective Date: This Agreement is effective upon your acceptance or your use of the Services. Acceptance: By accepting this Agreement or by using the Services, you confirm that you have read and understood this Agreement, you have the authority to enter into this Agreement (including binding an organization if applicable), and you agree to all terms. If you do not agree to these terms, do not use the Services.
Contact Information: If you have any questions or concerns regarding these Terms or the Site, please contact us at: Hello@sprkr.it
These Terms of Service ("Agreement") constitute a binding contract between you ("Customer") and SPRKR Technologies Inc. ("SPRKR," "we," or "us"). This Agreement governs your access to and use of our Services.
Please read this Agreement carefully to ensure you fully understand each provision. This Agreement includes an arbitration agreement and a class action/jury trial waiver. Unless you opt out following the instructions in Section 11(b), you agree to resolve any disputes with us through final and binding arbitration on an individual basis. You also waive your rights to seek relief in a court of law, to a jury trial, and to participate in any class, collective, or representative proceedings to the fullest extent permitted by law.
Effectiveness of Agreement: This Agreement becomes effective when you click the "I ACCEPT" button or access or use our Services ("Effective Date"). By doing so, you:
If you do not agree to these terms, please select the “i decline” button below or do not access or use the services. if you do not accept these terms, you may not access or use the services.
1. DEFINITIONS
"Aggregated Statistics" refers to data and information about your use of the Services, which SPRKR collects and uses in an aggregated and anonymized format. This includes compiling statistical and performance information about the operation and efficacy of our Services.
"Arbitration Agreement" refers to the mandatory arbitration provision found in Section 11(b) of this Agreement.
"Authorized User" means any of your employees, consultants, contractors, or agents who: (i) Are authorized by you to access and use the Services under the rights granted to you by this Agreement. (ii) Have had access to the Services procured on their behalf under this Agreement.
"Class Action/Jury Trial Waiver" refers to the waiver provision found in Section 11(c) of this Agreement, which limits the ability to undertake class action or jury trials.
"Confidential Information" encompasses any information related to either party's business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information. This can be communicated orally, in written, electronic, or any other form or media, regardless of whether it is marked as "confidential" at the time of disclosure. Confidential Information does not include information that, at the time of disclosure, is:
"Customer," "you," or "your" refers to you, the subscriber, and any of your Authorized Users as defined in this Agreement.
"Customer Account" refers to the specific account created for you to access our Services.
"Customer Property" refers to:
Input: The information you provide directly via our platform.
Output: The results generated by the Services based on your input.
Additional Content: Any other content, including text, images, illustrations, charts, tables, and other materials or data you supply to SPRKR, either directly through the Service or indirectly through integration with a Third Party Product, for processing on your behalf.
"Documentation" includes all user manuals, handbooks, guides, FAQs and instructional content and videos provided by SPRKR to you electronically, pertaining to the Services. These are available on our website at www.sprkr.it.
"Feedback" encompasses all communications or materials sent to us by mail, email, telephone, or otherwise that suggest or recommend changes to the Services. This includes new features or functionality, as well as any comments, questions, suggestions, ideas, or similar feedback about the Services.
"Input" refers to the information you provide through prompts when using the Services, including any data over which you hold or have been granted Intellectual Property Rights. It's important to clarify that Input does not include any SPRKR Property.
"Intellectual Property Rights" encompass all forms of intellectual property rights recognized by law, including: Patent rights, Copyright rights, Mask work rights, Moral rights, Rights of publicity, Trademark, trade dress, and service mark rights, Goodwill,Trade secret rights.
These rights may exist now or established later, and include all applications, registrations, renewals, and extensions under the laws of any state, country, territory, or other jurisdiction.
"SPRKR Property" includes:
The Services: All online and/or mobile services, websites, and software provided by SPRKR under this Agreement.
The Documentation: All user manuals, handbooks, guides, FAQs, and instructional videos relating to the Services.
Additional Materials: All content, materials, and software supplied by SPRKR in connection with, or used by SPRKR in providing, the Services. For clarity, SPRKR Property includes Aggregated Statistics and any data or content derived from monitoring your access to or use of the Services. It does not include Customer Property or the Output.
"Output" refers to the results or data generated by the Services and delivered to you based on your Input. It's important to clarify that Output does not include any SPRKR Property.
"Privacy Policy" is the document outlining how we handle your personal data, available at SPRKR's Privacy Policy URL.
"Services" encompasses the online and/or mobile services, website, and software provided by SPRKR, as detailed on the SPRKR website at www.sprkr.it.
"Term" refers to the duration of this Agreement, beginning on the Effective Date and continuing for the length of time that the Customer maintains an active subscription to the Services.
"User Accounts" represents the various account types available within the Services, tailored to different user needs and functionalities.
"User" or "Users" encompasses all individuals and entities that access or use the Services.
"Third-Party Products" include any products, content, services, information, websites, or other materials that are owned by third parties and that are integrated with or accessible through the Services.
2. USAGE AND ACCESS
(a) Eligibility: This Agreement forms a binding contract between you and SPRKR. You must read and agree to this Agreement before using the Services. If you do not agree to these terms, you are not permitted to use the Services. You are only eligible to use the Services if you are capable of forming a legally binding contract with SPRKR and only if you comply with this Agreement and all applicable local, state, national, and international laws, rules, and regulations. The Services must not be accessed or used by anyone under the age of 13, or under the age of 16 in Europe. Furthermore, individuals who have been previously removed from the Services by SPRKR are not permitted to access the Services.
(b) Provision of Access: Subject to your payment of Fees and compliance with all terms and conditions of this Agreement, SPRKR grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services during the Term solely for your internal business operations by Authorized Users. SPRKR will provide you with the necessary passwords and access credentials to allow you to access the Services.
(c) Documentation License: Under the terms and conditions of this Agreement, SPRKR grants you a non-exclusive, non-sublicensable, non-transferable license to allow Authorized Users to use the Documentation during the “Term” solely for your internal business purposes in connection with the use of the Services.
(d) Accounts: Your Customer Account provides access to the services and functionalities that SPRKR may establish and maintain from time to time, at our sole discretion. We may also maintain various types of User Accounts. If you open a Customer Account on behalf of a company, organization, or other entity, then “you” includes both you and that entity. By connecting to SPRKR with a third-party service, you authorize us to access and use your information from that service as permitted by that service, and to store your login credentials for that service.
You are prohibited from using other Users' User Accounts without permission. When creating your Customer Account, you must provide accurate and complete information and keep this information current. You are solely responsible for all activities that occur under your Customer Account, and you must keep your account password secure. We recommend using “strong” passwords (a combination of upper and lower case letters, numbers, and symbols). You must immediately notify SPRKR of any security breach or unauthorized use of your Customer Account. SPRKR is not liable for any losses arising from unauthorized use of your Customer Account.
You can manage your Customer Account profile and your interactions with the Services through your settings page. By providing SPRKR with your email address, you consent to us using this email to send you service-related notices, including any required by law, as an alternative to postal mail. We may also use your email address to send you other communications, such as changes to the features of the Services and special offers. If you prefer not to receive such messages, you can opt out or adjust your preferences on your settings page. Opting out may prevent you from receiving updates about new features, improvements, or offers.
(e) Restrictions on Use: You are prohibited from, and must ensure that Authorized Users do not engage in, the following restricted activities: (i) Reproducing, distributing, selling, or revealing any part of the Services in any format, including but not limited to any form of automated or manual “scraping”. (ii) Utilizing automated systems such as 'robots,' 'spiders,' or 'offline readers' to access the Services in a way that sends more request messages to the SPRKR servers than a human could reasonably produce in the same period using a standard web browser. However, SPRKR allows public search engines to use such tools to create searchable indices of publicly available materials from the Services, though not for creating caches or archives of such materials.
(iii) Sending spam, chain letters, or any other unsolicited emails.
(iv) Attempting to disrupt or compromise the integrity or security of the Services's systems, or decoding any transmissions to or from the servers operating the Services.
(v) Breaching SPRKR's Fair Use Policy, available at [SPRKR's legal webpage URL].
(vi) Uploading invalid data, viruses, worms, or other harmful software agents through the Services.
(vii) Collecting or harvesting any personally identifiable information, including account names, from the Services.
(viii) Engaging in any unlawful commercial solicitation using the Services.
(ix) Impersonating another individual or misrepresenting your affiliation with any person or entity, committing fraud, or attempting to conceal your identity.
(x) Interfering with the proper functioning of the Services.
(xi) Accessing any content on the Services via any technology or means other than those provided or approved by SPRKR.
(xii) Circumventing any access or use restrictions put into place to prevent certain uses of the Services or content therein.
(f) Aggregated Statistics: Despite any other provision in this Agreement, SPRKR may observe and analyze your usage of the Services to gather and compile Aggregated Statistics. All rights, title, and interest in these Aggregated Statistics, including any intellectual property rights, remain exclusively with SPRKR. You recognize that SPRKR may develop Aggregated Statistics based on the Customer Property you provide through the Services.
You consent to SPRKR: (i) Disclosing Aggregated Statistics publicly in accordance with applicable laws. (ii) Utilizing Aggregated Statistics as allowed by law, ensuring that such statistics do not reveal any identifiable Customer or Confidential Information.
(g) Reservation of Rights: SPRKR retains all rights not explicitly granted to the Customer within this Agreement. Except for the specific rights and licenses granted hereunder, nothing in this Agreement confers, whether by implication, waiver, estoppel, or otherwise, any intellectual property rights or other titles or interests in the SPRKR Property to the Customer or any third party.
(h) Suspension and Termination: Despite any provisions to the contrary in this Agreement, SPRKR reserves the right, at its sole discretion and without prior notice, to temporarily suspend or permanently terminate the Customer's or any Authorized User's access to all or any part of the Services at any time for any reason, including but not limited to circumstances where:
(i) SPRKR determines that: (i) There is a threat or actual attack on SPRKR Property; (ii) The use of SPRKR Property by the Customer or any Authorized User disrupts or poses a security risk to SPRKR Property, or any other customer or vendor; (iii) The SPRKR Property is being used for illegal or fraudulent activities; (iv) Following applicable law, the Customer has stopped conducting business in the usual course, has made an assignment for the benefit of creditors, or has become the subject of bankruptcy, reorganization, liquidation, dissolution, or similar proceedings; (v) The provision of Services to the Customer or any Authorized User is prohibited by law. (vi) Any third-party service or product provider crucial for accessing the Services suspends or terminates SPRKR's use of their services or products. (vii) As specified under Section 5 of this Agreement.
(j) Modifications to the Services: SPRKR reserves the right to modify the Services, discontinue any Services or features, or set limits on the use of the Services at any time without prior notice. We may also, either permanently or temporarily, terminate or suspend your access to the Services without prior notice or liability, for any reason, or for no reason at all. This may occur particularly if it is determined at our sole discretion that you have breached any part of this Agreement. Even after termination, the provisions of this Agreement will continue to apply.
(k) Processing of Personal Data: The parties recognize that using the Services does not inherently require SPRKR to process any information that constitutes or could be considered 'Personal Data' — which refers to data that identifies or can be used to identify, contact, or locate a natural person. Customers are not obligated to provide Personal Data as part of their Input to effectively use the Services.
(l) In-Product Cookies: SPRKR utilizes First Party Cookies to collect data when Customers or Users engage with the Services. This collection helps ensure that the Services are secure, efficient, and reliable. The information gathered through cookies is used solely for the purpose of providing the Services and is aggregated in a manner that does not personally identify any Customers or Users.
(m) Processing of Personal Data: The parties recognize that using the Services does not inherently require SPRKR to process any information that constitutes or could be considered 'Personal Data' — which refers to data that identifies or can be used to identify, contact, or locate a natural person. Customers are not obligated to provide Personal Data as part of their Input to effectively use the Services.
3. INTELLECTUAL PROPERTY RIGHTS
(a) Customer Property: SPRKR does not claim any ownership rights over Customer Property; ownership remains solely with you, the Customer. SPRKR reserves the right, but not the obligation, to remove any Customer Property processed via the Services at our discretion. When you submit, post, display, provide, or otherwise make available any Customer Property through the Services, you grant SPRKR a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and create derivative works from all such Customer Property—including your name, voice, and/or likeness as contained in your Customer Property—in whole or in part, and in any form, media, or technology, whether now known or later developed. This is for the purpose of operating, promoting, and improving the Services, and developing new ones. This includes using Customer Property to enhance artificial intelligence models and potentially promoting and redistributing parts or all of the Services (including derivative works) in any media formats through any channels. Additionally, for the duration of the Term, you also grant SPRKR a non-exclusive, irrevocable license to use the Customer's name, trademarks, and logos to identify you as a subscriber of the Services.
Regarding Your Customer Property, you agree and confirm the following: (i) The use of your Customer Property by SPRKR, as described in this Agreement and through the Services, will comply with all applicable laws and not infringe on any third-party rights, including intellectual property and privacy rights. (ii) You possess the necessary written permissions from every identifiable individual in the Customer Property to use their names or likenesses as envisioned by the Services and this Agreement, and each individual has absolved you of any liability related to such use. (iii) You are responsible for acquiring all necessary consents required by law for including third-party content in your Customer Property. (iv) SPRKR is authorized to use your Customer Property as granted under this Agreement without any obligation to pay guild fees, residuals, payments, fees, or royalties that might typically be due under any collective bargaining agreements or other arrangements.
SPRKR disclaims all responsibility and assumes no liability for any Customer Property submitted, posted, or otherwise made available through the Services by you or any other user or third party. You bear sole responsibility for your Customer Property and the repercussions of making it available on the Services. SPRKR acts only as a passive channel for the online distribution and publication of your Customer Property. You acknowledge and accept that you may encounter Customer Property that may be misleading, offensive, or unsuitable for children or your specific use, and SPRKR will not be liable for any damages you might claim as a result of interacting with such content.
(b) SPRKR Property: All Intellectual Property Rights related to SPRKR Property are the exclusive property of SPRKR and its licensors, which includes other Users who may post content to the Services. Except as explicitly stated in this Agreement, no license or right is granted directly or by implication, estoppel, or otherwise. You are prohibited from selling, licensing, renting, modifying, distributing, copying, reproducing, transmitting, publicly displaying, publicly performing, publishing, adapting, editing, or creating derivative works from any SPRKR Property. Any use of SPRKR Property not expressly permitted by this Agreement is strictly forbidden. SPRKR Property includes, but is not limited to, Aggregated Statistics and any other data or content derived from monitoring your access and use of the Services, but does not include Customer Property. Moreover, you unconditionally and irrevocably assign to SPRKR all right, title, and interest in and to the Aggregated Statistics, including all Intellectual Property Rights contained therein.
Feedback Submission: You may opt to provide or we may ask you for feedback regarding the Services. By submitting any feedback, you acknowledge that your input is provided voluntarily, without restrictions, and will not place SPRKR under any fiduciary or other obligations. We may use this feedback without any obligation to compensate you, and may disclose it on a non-confidential basis or otherwise to anyone. You also recognize that SPRKR retains the right to utilize any ideas, concepts, know-how, or techniques contained in your feedback for any purpose, including, but not limited to, enhancing our services, without any obligation to you, even if similar ideas were previously known to SPRKR, developed by its employees, or gathered from other sources. All feedback provided will be considered non-confidential, and you agree to cause all Authorized Users to assign all rights, title, and interest in any feedback they provide to SPRKR, which SPRKR may use freely, without attribution or compensation.
(c) Copyright Notice: At SPRKR, we respect the rights of artists and content owners, and it is our policy to respond to alleged infringement notices that comply with Canada's Copyright Modernization Act.
If you believe that your copyrighted work has been copied in a manner that constitutes copyright infringement and is accessible via the Services, please notify SPRKR's copyright agent with the following information: (i) A physical or electronic signature of a person authorized to act on behalf of the copyright owner. (ii) Identification of the copyrighted work you claim has been infringed. (iii) Identification of the material that is claimed to be infringing and its location on the Services. (iv) Contact information for you, such as your address, telephone number, and email address. (v) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or applicable law. (vi) A statement, made under penalty of perjury, that the information provided is accurate, and that you are the copyright owner or authorized to act on their behalf. (vii) Please send all such notices to the following contact, designated as SPRKR's Copyright Agent: Attn: Legal Department, SPRKR, Email: legal@sprkr.it
Under Canadian law, if you knowingly misrepresent that online material is infringing, you may be subject to legal consequences, including potential criminal prosecution and civil penalties such as monetary damages, court costs, and attorneys' fees.
Please note that this procedure is exclusively for informing SPRKR and its affiliates about infringements of your copyrighted material. The requirements outlined above are designed to ensure compliance with SPRKR's obligations under Canada's Copyright Modernization Act, but they do not constitute legal advice. It may be advisable to consult with a legal professional regarding your rights and obligations under the Copyright Modernization Act and other applicable laws as per the provisions on digital locks (technological protection measures) in sections 41.1 to 41.21 of the Copyright Act as amended by the Copyright Modernization Act.
The safe harbour provisions that protect service providers are mainly outlined in sections 41.25 to 41.27 of the Copyright Act. In line with the Copyright Modernization Act and applicable laws, SPRKR has established a policy to terminate, under appropriate circumstances, the accounts of users who are repeat infringers. SPRKR may also, at its sole discretion, limit access to the Services or terminate the accounts of any users who infringe the intellectual property rights of others, regardless of whether there is any repeat infringement.
4. CUSTOMER RESPONSIBILITIES
(a) Acceptable Use Policy: You must adhere to SPRKR's Acceptable Use Policy, which is available at SPRKR's legal webpage URL, as well as all applicable laws, rules, and regulations.
(b) Account Use: You are accountable for all activities conducted through the Services and Documentation that result from access you provide, whether directly or indirectly, and whether such access is authorized by or in violation of this Agreement. This includes all actions and failures to act by Authorized Users. Any breach of this Agreement by an Authorized User will be considered a breach by you. You are obligated to inform all Authorized Users about the relevant terms of this Agreement and ensure their compliance with these terms.
(c) Passwords and Access Credentials: You are responsible for maintaining the confidentiality of all passwords and access credentials associated with the Services. You must not sell or transfer these credentials to anyone else. You are required to notify us promptly of any unauthorized access to or use of your passwords or access credentials.
(d) Third-Party Products: The Services may provide access to Third-Party Products. Such products are governed by their own terms and conditions, which will be made available to you within the Services through a website link or other means. You must agree to these terms before installing, accessing, or using any Third-Party Products. SPRKR does not endorse or take responsibility for any Third-Party Products. Your use of any Third-Party Product accessed via the Services or any sharing of your Customer Property through third-party websites or services is at your own risk, and neither this Agreement nor SPRKR's Privacy Policy applies to such use. You hereby release SPRKR from any liability arising from your use of any Third-Party Products, including but not limited to any Customer Property submitted by other users.
Additionally, any interactions or transactions with advertisers found on the Services, including payment and delivery of goods and any other terms such as warranties, are strictly between you and the advertisers. SPRKR is not liable for any loss or damage arising from your dealings with such advertisers.
5. FEES AND PAYMENT
(a) Billing Policies: Some features of the Services may require payment. If you choose to use these paid aspects, you agree to adhere to our Pricing and Payment Terms, which are available at SPRKR's pricing and may be updated periodically. SPRKR reserves the right to introduce new services for additional fees and to modify existing fees and charges at any time at its sole discretion. Any changes to our Pricing and Payment Terms will take effect in the billing cycle following the notification of such changes as outlined in this Agreement.
(b) No Refunds:You may cancel your Customer Account at any time; however, no refunds will be issued for cancellations. Should SPRKR suspend or terminate your Customer Account or this Agreement for any reason, you acknowledge that you are not entitled to refunds or exchanges for any unused subscription time, license fees, or any other fees for parts of the Services, or any content or data associated with your Customer Account.
(c) Free Trials:SPRKR or our third-party service providers may offer free trials for certain Services. At the conclusion of the free trial, your payment method will be charged automatically either on the day the free trial ends or when you begin a paid subscription, whichever comes later. Billing will continue on each subsequent billing date according to Section 5(d). You will not receive a separate notice when your free trial ends, and payments for subscriptions begin. To avoid charges, you must cancel your subscription before midnight Pacific Standard Time on the final day of your free trial. If you cancel during the free trial period, the cancellation may take effect immediately.
(d) Automatic Renewal of Subscription Fees:WHEN YOU SUBSCRIBE TO A SERVICE, THE FEES, AS SPECIFIED IN YOUR USER ACCOUNT AND/OR ON THE CHECKOUT PAGE, WILL AUTOMATICALLY RENEW EACH MONTH ON A CONTINUOUS BASIS. THIS AUTOMATIC RENEWAL WILL CONTINUE UNLESS YOU NOTIFY US THAT YOU WISH TO CANCEL YOUR SUBSCRIPTION. ALL CANCELLATION REQUESTS MUST BE SUBMITTED EITHER THROUGH YOUR SETTINGS PAGE OR IN WRITING AND SENT TOSUPPORT@SPRKR.IT EMAIL, AND WILL BECOME EFFECTIVE IN THE BILLING CYCLE FOLLOWING THE ONE IN WHICH YOU PROVIDE NOTICE.
YOU ACKNOWLEDGE THAT YOUR SUBSCRIPTION AND THE ASSOCIATED FEES WILL AUTOMATICALLY RENEW UNTIL YOU NOTIFY US OF YOUR CANCELLATION. BY SUBSCRIBING, YOU AUTHORIZE SPRKR OR OUR AUTHORIZED THIRD-PARTY PAYMENT PROCESSOR TO CHARGE THE SUBSCRIPTION FEES AND ANY APPLICABLE TAXES TO THE PAYMENT METHOD WE HAVE ON FILE FOR YOU, WITHOUT ADDITIONAL NOTICE TO YOU, UNLESS SUCH NOTICE IS REQUIRED BY APPLICABLE LAW.
(e) Risk of Loss:All products available for purchase through the Services are delivered by independent carriers not associated with SPRKR. Ownership and the risk of loss of these products transfer to you when SPRKR or our supplier hands over the items to the carrier.
(f) Payment Information; Taxes:SPRKR accepts various payment methods through Stripe, including Mastercard, Visa, and American Express. By transacting on our Services, you agree to comply with theStripe Services Agreement. You must ensure that all information provided for a transaction is accurate, complete, and up-to-date. You are responsible for all charges incurred through your payment methods at the prices active at the time these charges are made. Additionally, you are responsible for any applicable taxes related to your transactions.
6. CONFIDENTIAL INFORMATION
From time to time, SPRKR and the Customer may exchange Confidential Information. The party receiving Confidential Information agrees not to disclose it to anyone except as necessary to its employees who require the information to perform their duties under this Agreement, and who are obligated to protect it with no less stringent measures than those outlined in this Agreement.
However, Confidential Information may be disclosed to the extent necessary to: (i) Comply with a legal obligation such as a court order, provided that the disclosing party notifies the other party in advance and makes a reasonable effort to obtain a protective order or equivalent legal protection. (ii) Assert or defend the rights of the party under this Agreement, including in legal proceedings.
The obligations to protect Confidential Information take effect from the initial disclosure and last for five years post-disclosure, except for trade secrets, which are protected for as long as they remain classified as trade secrets under applicable Canadian laws, such as the Uniform Trade Secrets Act or other provincial regulations that align with the Personal Information Protection and Electronic Documents Act (PIPEDA), ensuring the information retains confidentiality indefinitely unless otherwise disclosed through lawful means.
SPRKR is committed to maintaining the integrity and security of your personal information. Despite our efforts, we cannot guarantee complete security against breaches by unauthorized third parties who may use your personal information improperly. By providing your personal information, you acknowledge that you do so at your own risk.
7. PRIVACY POLICY
SPRKR adheres to its Privacy Policy in delivering the Services, which reflects compliance with the Personal Information Protection and Electronic Documents Act (PIPEDA) and other applicable Canadian privacy laws. Our Privacy Policy is subject to modifications as outlined within the document itself.
By accessing, using, and submitting information through the Services, you confirm that you have reviewed and consented to our Privacy Policy. You also agree to SPRKR's actions regarding your information, which will be handled in accordance with the most recent version of our Privacy Policy available on our website.
8. WARRANTY DISCLAIMER
The Services are provided on an “AS IS” and “AS AVAILABLE” basis. Your use of the Services is at your own risk. To the maximum extent permitted by applicable Canadian law, the Services are offered without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from SPRKR or through the Services will create any warranty not expressly stated in this Agreement. Without limiting the foregoing, SPRKR, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable, or correct; that the Services will meet your requirements; that the Services will be available at any particular time or location, uninterrupted, or secure; that any defects or errors will be corrected; or that the Services are free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Services is done at your own discretion and risk, and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from the download or use of any such content. Furthermore, SPRKR does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Services or any hyperlinked website or service, and SPRKR will not be a party to or in any way monitor any transaction between you and third- party providers of products or services.
Certain jurisdictions, including some Canadian provinces, do not allow the exclusion of certain warranties or the limitation of liability for incidental or consequential damages, so the above limitations may not apply to you. These disclaimers do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable law, including Quebec consumer protection laws.
9. INDEMNIFICATION
You agree to defend, indemnify, and hold harmless SPRKR and its subsidiaries, agents, licensors, managers, and other affiliated companies, as well as their employees, contractors, agents, officers, and directors, from any and all claims, damages, obligations, losses, liabilities, costs, or debts, and expenses (including but not limited to legal fees) arising from: (i) Your or your Authorized Users' use of and access to the Services, including any data or content transmitted or received by you or your Authorized Users; (ii) Your or your Authorized Users' breach of any term of this Agreement, including, but not limited to, any breach of the representations and warranties made herein; (iii) Your or your Authorized Users infringement of any third-party right, including, but not limited to, any rights of privacy or Intellectual Property Rights; (iv) Your or your Authorized Users' violation of any applicable laws, regulations, or rules; (v) Any Customer Property or content that is submitted through your or your Authorized Users' accounts, including, but not limited to, any misleading, false, or inaccurate information; (vi) Any willful misconduct by you or your Authorized Users; (vii) Any use of the Services by any other party accessing them using your or your Authorized Users' unique usernames, passwords, or other security measures.
10. LIMITATIONS OF LIABILITY
To the fullest extent permitted by applicable Canadian law, SPRKR will not be liable under any legal or equitable theory, including but not limited to breach of contract, tort (including negligence), or strict liability, for any:
(i) Indirect, incidental, consequential, special, exemplary, or punitive damages; (ii) Increase in costs, decrease in property value or lost business opportunities, production, revenue, or profits; (iii) Loss of goodwill or damage to reputation; (iv) Inability to use, loss, interruption, or delays of data, or breaches of data or system security; (v) Costs of procurement of substitute goods or services.
Under no circumstances will SPRKR be responsible for any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access or use of the Services or your account, or the information contained therein.
SPRKR assumes no liability for: (i) Errors, mistakes, or inaccuracies of content; (ii) Personal injury or property damage of any kind resulting from your access to or use of the Services; (iii) Unauthorized access to or use of our secure servers and/or any personal information stored therein; (iv) Interruptions or cessation of transmission to or from the Services; (v) Bugs, viruses, trojan horses, or the like which may be transmitted to or through our Services by any third party; (vi) Errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Services; (vii) Customer Property or the defamatory, offensive, or illegal conduct of any third party.
In no event shall SPRKR's, its affiliates, agents, directors, employees, suppliers, or licensors' total liability for all damages arising out of or related to this Agreement exceed the lesser of the total amount paid to SPRKR under this Agreement in the twelve (12) months prior to the incident that gave rise to the claim, or $79.00
11. GOVERNING LAW, ARBITRATION, AND CLASS ACTION/JURY TRIAL WAIVER
(a) Governing Law: You agree that: (i) The Services shall be deemed to be based solely in Montreal, Quebec, Canada; and (ii) The Services do not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Quebec.
This Agreement shall be governed by the laws of the Province of Quebec and the federal laws of Canada applicable therein, without regard to conflict of law principles. The parties acknowledge that this Agreement involves transactions interprovincially and internationally.
Notwithstanding the above, any disputes arising under or related to this Agreement shall be governed by the applicable arbitration laws of Quebec. If the provincial arbitration laws are found not to apply to any issue that arises under this Agreement, then that issue shall be resolved under the laws of Canada. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
You agree to submit to the exclusive jurisdiction of the courts located in Montreal, Quebec, for any legal actions for which we retain the right to seek injunctive or other equitable relief in a competent court to prevent the actual or threatened infringement, misappropriation, or violation of our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below. This includes any provisional relief required to prevent irreparable harm. You agree that Montreal, Quebec, is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
(b) Arbitration.Please read this section carefully as it involves the agreement to arbitrate disputes and limits the way in which relief can be sought from SPRKR. This Arbitration Agreement covers any dispute, controversy, or claim arising from or related to, directly or indirectly: (a) This Agreement, including its formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability; (b) Your access to or use of the Services, including any advertising or marketing communications; (c) Any transactions conducted through, by, or using the Services; (d) Any other aspect of your relationship or transactions with SPRKR, directly or indirectly, as a consumer ("Claim" or collectively, "Claims"). This Arbitration Agreement applies to all Claims, regardless of when they arose or were asserted. If you are new to SPRKR, you may opt-out of this Arbitration Agreement within 30 days of accepting this Agreement by sending an email to SPRKR at support@sprkr.it with your full name and your intent to opt-out. Opting out of this Arbitration Agreement does not affect any other part of this Agreement.
For any Claim, you agree to first contact us at support@sprkr.it to attempt to resolve the dispute informally. If SPRKR has not resolved a Claim after sixty (60) days, both parties agree to resolve any Claim exclusively through binding arbitration in Montreal, Quebec, using a single arbitrator under the rules of the Canadian Arbitration Association (CAA), except as provided herein. The CAA's rules are available online, and arbitration will be conducted in the province where you reside or Montreal, Quebec, unless agreed otherwise. Costs of arbitration, including administrative and arbitrator fees, will be shared equally by both parties, and the arbitrator's award may include the cost of arbitration, reasonable legal fees, and reasonable costs for experts and other witnesses.
Any judgment on the arbitrator's award may be entered in any court of competent jurisdiction. You and SPRKR agree that the arbitrator will have exclusive authority to resolve any disputes related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will also handle all threshold issues, including those relating to the unconscionability or applicability of this Agreement. Exception to Arbitration and Severability: Nothing in this Arbitration Agreement shall prevent SPRKR from seeking injunctive or other equitable relief from the courts as required to prevent actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights, or other proprietary rights. Similarly, this Agreement does not prevent you from bringing claims in small claims court, provided that your claims qualify and remain in such court on an individual (non-class, non- representative) basis.
Should any part of this Arbitration Agreement be found void, unenforceable, or unlawful, such part will be severed from this Agreement. The severance of any void, unenforceable, or unlawful parts shall not affect the remaining provisions of the Arbitration Agreement, which will continue to be valid and enforceable. Moreover, if the prohibition against class actions and other claims brought on behalf of third parties contained herein is found to be unenforceable, then all of the preceding language in this Arbitration Agreement will be null and void. However, the arbitration agreement will remain binding. If the provision waiving class action and jury trials is deemed unenforceable or unlawful, any claims seeking public injunctive relief will be excised from this arbitration provision. Such claims may be reviewed in a civil court of competent jurisdiction, while other disputes will be resolved through arbitration according to this Agreement. Litigation on disputes seeking public injunctive relief will be stayed, pending the resolution of any individual claims in arbitration
(c) Class Action/Jury Trial Waiver: FOR ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THE SERVICES WERE USED FOR PERSONAL, COMMERCIAL, OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE INDIVIDUAL CAPACITY OF THE PARTIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDINGS. THIS WAIVER EXTENDS TO CLASS ARBITRATION; UNLESS OTHERWISE AGREED BY BOTH PARTIES, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AND SPRKR AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO THE INDIVIDUAL CLAIMANT, AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL CLAIM. ANY RELIEF AWARDED CANNOT AFFECT OTHER SPRKR USERS. BY ENTERING INTO THIS AGREEMENT, YOU AND SPRKR EACH WAIVE ANY RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL, OR OTHER REPRESENTATIVE PROCEEDINGS IN ANY CAPACITY. THIS WAIVER IS BINDING AND ENCOMPASSES ALL CLAIMS BROUGHT UNDER FEDERAL, PROVINCIAL, OR LOCAL LAWS, INCLUDING CLAIMS RELATED TO PRIVACY AND DATA SECURITY.
12. MISCELLANEOUS
(a) Entire Agreement/Severability: This Agreement, along with any amendments and additional agreements you may enter into with SPRKR in connection with the Services, constitutes the entire agreement between you and SPRKR concerning the Services. Except as specifically modified in Section 11(b), if any provision of this Agreement is deemed invalid by a court of competent jurisdiction, such invalidity will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect. The invalidity, illegality, or unenforceability of any provision in this document does not affect any other provision, nor does it affect
(b) Modifications:SPRKR reserves the right, at our sole discretion, to modify this Agreement at any time. Changes will take effect immediately upon posting on our website. We will notify you of significant modifications through direct email or a prominent notice on the Services. It is your responsibility to review these changes and familiarize yourself with them. Your continued use of the Services after changes are posted constitutes your acceptance of these modified terms. SPRKR will provide at least 30 days' advance notice before changes that we reasonably believe will result in a material reduction in the quality or level of the Services.
(c) Export Regulation:The Services and the technology that supports them are governed by Canadian export control laws and regulations, including but not limited to the Export and Import Permits Act. You agree not to export, re-export, or release the Services or related software or technology to, or make them accessible from, any jurisdiction or country where such export, re-export, or release is prohibited by law. You must comply with all applicable Canadian laws, regulations, and rules, and obtain all necessary governmental approvals before exporting, re-exporting, releasing, or otherwise making the Services or related software or technology available outside Canada.
(d) Quebec and Canadian Government Rights:Each of the software components that constitute the Services and the Documentation is considered "commercial computer software" and "commercial computer software documentation" under Quebec and Canadian public sector procurement guidelines. Accordingly, if you are an agency of the Canadian Government or any contractor for such an agency, you receive only those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with Canadian federal and provincial procurement laws and regulations.
(e) No Waiver:No waiver by SPRKR of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of SPRKR to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision. This means that SPRKR's failure to enforce any provision of this Agreement after a breach by you does not waive our right to enforce the same provision after any subsequent breach.
(f) Notices:Unless otherwise specified in this Agreement, any notices to us must be sent to our corporate headquarters at 4767 rue Dagenais, suite 101, Montreal H4C 1L8, and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. SPRKR may provide notifications, whether required by law or for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by SPRKR in our sole discretion. SPRKR reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. SPRKR is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You shall also send an electronic copy of any notice tolegal@sprkr.it.
(g) Assignment:This Agreement, and any rights and licenses granted hereunder, is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent. Any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.
Please contact us at support@sprkr.it with any questions regarding this Agreement.