Last Updated: 12/31/2018
THESE Spark Membership LLC MASTER TERMS AND CONDITIONS (THIS “AGREEMENT”) CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN YOU AND Spark Membership LLC AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES BY YOU AND YOUR END-USERS, WHETHER OR NOT IN CONNECTION WITH AN ACTIVE SUBSCRIPTION TO THE SERVICES.
Capitalized terms used in this Agreement are defined below in Section 1 and/or generally in the context in which they are first used.
This Agreement applies to any use of, and access to the Services by You and Your End Users.
This Agreement is effective on the earlier of (a) the date You execute an Order Form, or (b) the date You first access or use any Services (“Effective Date”). By either accessing or using a Service, or authorizing or permitting an End-User to access or use a Service, You accept and agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company or another legal entity (an “Entity”), You are agreeing to this Agreement for and on behalf of that that Entity and representing to Spark Membership LLC that You have the authority to bind such Entity to this Agreement. You may not use or access the Services or accept this Agreement if You are not at least 18 years old, You do not have authority to bind the Entity on behalf of which you purport to act, or You do not agree with any part of this Agreement.
Spark Membership LLC RESERVES THE RIGHT AT ANY TIME TO MODIFY, ADD, OR DELETE (COLLECTIVELY, “CHANGE”) PORTIONS OF THIS AGREEMENT WITHOUT NOTICE TO YOU. Spark Membership LLC WILL, HOWEVER, MAKE COMMERCIALLY REASONABLE EFFORTS TO NOTIFY YOU PRIOR TO MAKING SUCH CHANGES, IF PRACTICABLE TO DO SO, AND WILL POST THE CHANGES TO THE SERVICE. IT IS YOUR RESPONSIBILITY TO CHECK PERIODICALLY FOR SUCH CHANGES. YOUR CONTINUED USE OF THE SERVICES AFTER ANY CHANGES ARE POSTED (OR, IF APPLICABLE, AFTER Spark Membership LLC HAS INDICATED TO YOU IN WRITING THAT SUCH CHANGES WILL BECOME EFFECTIVE), CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT AS SO CHANGED.
You and Spark Membership LLC are sometimes referred to in this Agreement each individually as a “Party,” and collectively as the “Parties.”
1.1 “Affiliate” means any person or entity that directly or indirectly controls, is controlled by, or is under common control with, the indicated person or Entity.
1.2 “Authorized Party” means Your employees and third-party providers whom You have authorized to access and/or to receive Your Data, whether (i) in writing, (ii) through the Service’s security designations, or (iii) by system integration or other data exchange process.
1.3 “Aggregated Data” means anonymized, aggregated data derived by or through the operation of the Services that is created by or on behalf of Spark Membership LLC and that does not reveal any personally identifying information.
1.4 “Agreement” means these ‘Spark Membership LLC Master Terms and Conditions’ governing the terms and conditions of use of the Services between and binding upon Spark Membership LLC and a Customer.
1.5 “Cardholder Data” means credit card numbers (including CVV and security codes), expiration dates, billing addresses, and cardholder names as entered by You and Your End Users, and is a sub-set of Customer Data.
1.6 “Location” means the individual location(s) set forth in the Order Form for which You are accepting this Agreement.
1.7 “Confidential Information” shall mean all written or oral information, disclosed by any Party to the other, related to the operations of any Party or a third party that has been identified as confidential, or that by the nature of the information or the circumstances surrounding disclosure, ought reasonably to be treated as confidential.
1.8 “Customer,” “You,” (and “Your,” as applicable) means and refers to a person who, or an Entity that by or through such person, has executed an Order Form or has commenced using the Services, and includes all of Your Locations.
1.9 “Customer Data” means all data, information or other material about an End User that You and Your End Users provide or submit to the Services, and includes Cardholder Data and such portions of Your Data that relates to specific End Users.
1.10 “End Users” means any and all users of the Services, including, without limitation, Your employees, members, consultants, contractors and agents, and third parties with whom You transact business.
1.11 “Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship, including but not limited to copyrights and moral rights, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights (of every kind and nature however designated) (including logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
1.12 “Malicious Code” means viruses, worms, time bombs, Trojan horses and any other harmful or malicious code, files, scripts, agents or programs now existing or hereinafter devised.
1.13 “Non-Spark Membership LLC Application” means a Web-based, mobile, offline or other software application functionality that is provided by You or a third party and that interoperates with the Service, including, for example, an application that is developed by or for You, by a third party other than by Spark Membership.
1.14 “Order Form” means the documents for purchasing Services hereunder, including all addenda, supplements and attachments thereto, that are entered into between You and Spark Membership LLC from time to time. All Order Forms are deemed to be incorporated into this Agreement by reference. This Agreement shall rule in the event of any conflicts between this Agreement and any such Order Form to the extent of such conflict unless the Order Form specifically references such conflict and provides that the conflict should be governed by the Order Form to the extent of the conflict.
1.15 “PCI DSS” means the requirements of the Payment Card Industry Data Security Standard, as detailed on https://www.pcisecuritystandards.org/, as may be updated from time to time.
1.16 “Personally Identifiable information” (or “PII”) means information, including Customer Data, that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context.
1.18 “Service(s)” means (i) the Website owned and operated by Spark Membership LLC through which Spark Membership LLC offers the Spark Membership LLC web application and other Spark Membership LLC products and services, including https://app.sparkmembership.com, spakpages.io, sparkuniversity.co, (ii) those products and services themselves, (iii) any other features, products and services generally marketed by Spark Membership LLC, whether or not through the Website, under the name “Spark Membership,” and (iv) all products and services You order and/or purchase from time to time from Spark Membership LLC under an Order Form or otherwise.
1.19 “Technical Support” means Spark Membership LLC’s Services which provide End-User support, technical support, fixes, patches and occasional updates to the Services.
1.20 “Spark Membership” means Spark Membership LLC and its Affiliates.
1.21 “Usage Data” means all non-Personally Identifiable Information data regarding the use of the Services by End-Users.
1.22 “Website” means sparkmembership.com, app.sparkmembership.com and any other website or URL through which Spark Membership LLC offers the Services.
1.23 “Your Data” means any data, information or material provided or submitted by You and Your End Users to and/or through the Services. Your Data includes Customer Data and Cardholder Data, but excludes Usage Data and Aggregated Data.
2.1 Grant of License to You. Subject to the provisions of this Agreement, including your timely payment of all Fees for the Services, Spark Membership LLC grants You a limited, non-exclusive, non-transferable, non-sub license, revocable license and right to use the Services selected by You in an Order Form, during the Service Term (as defined in Your Order Form) set forth therein solely for Your internal business operations purposes. You will not: (a) modify, copy or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Your End Users as permitted herein; (c) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by Spark Membership LLC in the provision of the Services; (d) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the Services; or (f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.
3.1 Usage Limitations. Use of the Services is subject to such limitations as are set forth in the Order Form and as are otherwise set forth herein.
3.2 Use Disclaimer. Except as set forth in in Section 7.1, Your use of and access to the Services and all contents associated therewith are at Your sole risk. To the extent Spark Membership LLC requires Your Location’s to each individually accept this Agreement, and any such Location does not so agree in the manner prescribed by Spark Membership, then Spark Membership LLC may immediately suspend use of the Services for any Location unless and until such acceptance is obtained to Spark Membership LLC’s satisfaction. For avoidance of doubt, failure of a Location to so agree shall not limit or reduce Your financial liability to Spark Membership LLC for the Fees set forth in the applicable Order Form, which shall not be reduced.
3.3 Provision of Services. Spark Membership LLC shall make the Services available to You in accordance with (i) the ‘Service Levels and Support Terms’ set forth in Exhibit “A” and Exhibit “B,” respectively, (ii) this Agreement and (iii) the relevant Order Forms, during the Service Term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Spark Membership, except as provided herein, regarding potential future functionality or features. The Service is provided in U.S. English only.
3.4 Location Subscriptions. Unless otherwise specified in the applicable Order Form, (i) the Services are purchased as per Location subscriptions and may be accessed by no more than the specified number of Locations in the Order Form, (ii) additional Location subscriptions may be added during the applicable Service Term by executing a new Order Form for such purpose as prescribed by Spark Membership. Location subscriptions are for designated Locations only and cannot be shared or used by more than one Location, unless otherwise specifically permitted in writing by Spark Membership.
3.5 Service Availability and Access. The Service Level Terms set forth in Exhibit “A” are hereby incorporated into this Agreement by reference as if fully set forth at length herein. While Spark Membership LLC intends that the Services should be available in accordance with the Service Level Terms set forth in Exhibit “A,” it is possible that on occasion the Services may be unavailable to permit maintenance or other development activity to take place. In such an event, Spark Membership LLC will use reasonable efforts to provide advance written notice to You. Spark Membership LLC has the right in it’s sole discretion to block access to any of the Services, with or without notice, if and for so long as Spark Membership LLC deems Your access to, or use of, the Services is damaging to Spark Membership LLC reputation, the functioning of the Services, or prohibited under applicable law.
3.6 Help Desk. In the case of technical problems, You must make all reasonable efforts to investigate and diagnose problems before contacting Spark Membership. If You still need technical help after making such reasonable effort, you may consult the trouble-shooting and support materials provided online by Spark Membership LLC on the Website, or chat with Spark Membership Support team once you log into Spark, find the chat icon on the lower right side of your Spark Dashboard.
3.7 No Development. EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY UNDER THIS AGREEMENT AND NONE OF THE SERVICES SHALL BE DEEMED “WORK MADE FOR HIRE.” Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate written agreement between Spark Membership LLC and You prior to the commencement of any such activities.
3.8 Pilot Services. If Spark Membership LLC provides the Services to you during a pilot period, Spark Membership LLC will make one or more Services available to You until the earlier of the end of the pilot period or the start date of any commercial (i.e. non-pilot) subscriptions ordered by You for such Services. Notwithstanding any provision herein to the contrary, during any pilot period the Services are unsupported and are provided “as-is” without any warranties or indemnity whatsoever, and Spark Membership LLC will have no liability for any harm or damage arising out of or in connection with the Services during the pilot period. Any data You enter during a pilot period will be lost if You do not purchase a commercial subscription to the Services at the end of the pilot period.
4.1 Reservation of Rights by Spark Membership. Subject to the limited rights expressly granted hereunder, Spark Membership LLC and its licensors and third-party providers each reserve all of Spark Membership LLC’s and Spark Membership LLC’s licensors’ right, title and interest in and to the Services and Implementation Services (as defined in the Order Form) and related products, including all of Spark Membership LLC’s and Spark Membership LLC’s licensors’ related Intellectual Property Rights. No rights are granted to You hereunder other than as expressly set forth herein and any rights not so expressly granted are hereby reserved.
4.3 User Content. You and Your End Users may transmit or publish content created by You and/or Your End-users, using any of the Services or otherwise. However, You shall be solely Responsible to Spark Membership LLC for such content and the consequences of its transmission or publication. You agree not to use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit such content for any purpose other than in connection with the performance of Your obligations hereunder in accordance with this Agreement, without the express written consent of the person who owns the rights to such content. In the course of using any of the Services, if You come across any content with copyright notice(s) or any copy protection feature(s), You agree not to remove such copyright notice(s) or disable such copy protection feature(s) as the case may be. By making any copyrighted/copyrightable content available on any of the Services, You affirm that You have the consent, authorization or permission, as the case may be from every person who may claim any rights in such content to make such content available in such manner. Further, by making any content available in the manner aforementioned, You expressly agree that Spark Membership LLC will have the right to block access to, or remove such content made available by You, if Spark Membership LLC receives complaints concerning any illegality or infringement of third-party rights in such content. By using any of the Services and transmitting or publishing any content using the Services, you expressly consent to determination of questions of illegality or infringement of third-party rights in such content by the agent designated by Spark Membership LLC for this purpose. Notwithstanding anything to the contrary, Spark Membership LLC shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (specifically excluding information concerning Your Data and data derived therefrom) by You and Your End Users, and Spark Membership LLC will be free (during and after the Service Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and Spark Membership LLC’s other offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with Spark Membership LLC’s business.
4.5 Usage Data Information. Notwithstanding the foregoing, Spark Membership LLC maintains exclusive ownership of Usage Data and hereby grants You access to the Usage Data during the Service Term, to utilize data capture, syndication, and analysis tools, and other similar tools, to track, extract, compile, synthesize, aggregate, and analyze any Usage Data. You may not, however, sell or license access to the Usage Data to a third-party. Furthermore, Spark Membership LLC shall have the right during the Service Term and any renewal or extension thereof to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (excluding information concerning Your Data and data derived therefrom), and Spark Membership LLC will be free (during and after the Service Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Spark Membership LLC offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
4.6 License to Use Feedback. You grant to Spark Membership LLCa worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Spark Membership LLC’s Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Your End Users relating to the Services.
4.7 License to Customer Marks. You hereby grant Spark Membership LLC a license to use any and all of Your names and trademarks (“Customer Marks”) to (i) perform the Services hereunder; (ii) to promote Spark Membership LLC’s services to third parties and to the public; and (iii) to develop and host the Services for You. Spark Membership LLC acknowledges and agrees that all use of the Customer Marks by Spark Membership LLC shall accrue to the benefit of the Customer.
4.8 Cardholder Data. You are solely responsible for any liability resulting from Your transmission, handling, and/or storage of Cardholder Data. You agree that You will comply with all applicable laws and regulations relating to the handling and protection of Cardholder Data, including PCI DSS, anytime the Services are used to process credit cards. Spark Membership LLC does not store credit card numbers or CVV numbers in our database or software. Upon entering payment information, Spark Membership requests a token to be created by the payment gateway for all future charges. This token is only valid for your specific merchant account. Spark Membership can not export credit card information, as we never store that data.
4.9 Unauthorized Disclosure. If either Party believes that there has been a disclosure of Your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party, providing such details concerning the disclosure as the Party who did not cause or allow the disclosure may request, and shall cooperate with non-disclosing Party, its regulators and law enforcement to assist in regaining possession of Your Data and prevent its further unauthorized use, and take all commercially reasonable remedial actions as may be requested or required by the non-disclosing Party to prevent other or further incidents. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure and if a disclosure under this Section arises from one Party’s breach of its obligations under this Agreement, such breaching Party shall bear the reasonable cost, if any, of providing such notification to the affected individuals.
4.11 Data Disputes. Disputes between You and Your End Users are Your responsibility. You are solely responsible for resolving disputes regarding ownership of or access to Your Data, including those involving any current or former owners, co-owners, employees or contractors of Your business. You acknowledge and agree that Spark Membership LLC has no obligation whatsoever to resolve or intervene in such disputes.
USE OF SERVICES.
5.1 Customer Representations and Covenants. As a condition of this Agreement, when accessing and using the Services, You must (i) not transmit, or input into the Services (including into the Website), any files that may damage any other person’s computing devices or software, content that may be offensive, or material or data in violation of any law (including data or other material that violates privacy rights and/or intellectual property rights); (ii) not transmit or conduct business in a manner which violates any privacy rights (including, without limitation, the Telephone Consumer Protection Act of 1991 (the “TCPA”) adopted rules, including those set forth in 47 C.F.R. Sect. 64.1200, (together with the TCPA, the “TCPA Rules,” as the same may be amended from time to time), prohibiting the initiation of telephone calls (other than a call made for emergency purposes or made with the prior express consent of the called party) using automatic telephone dialing systems or an artificial or prerecorded voice to telephone numbers assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call (referred to herein as “TCPA Prohibited Conduct”)), (ii) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation, (iii) only use the Services for Your own lawful internal business purposes, in accordance with this Agreement and any other Spark Membership LLC policies as may be adopted from time to time, (iv) ensure that all persons who access the Services comply with and accept all terms of this Agreement that apply to You, (v) ensure that You are authorized to act on behalf of Your Locations in providing the Service to End-Users, (vi) not attempt to undermine the security or integrity of Spark Membership LLC’s computing systems or networks or, where the Services are hosted by a third-party, that third-party’s computing systems and networks, (vii) not use, or misuse, the Services in any way which may impair the functionality of the Services, or other systems used to deliver the Services or impair the ability of any other user to use the Services, and (viii) not attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access, or to the computer system on which the Services are hosted.
5.2 General Customer Responsibilities. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You are, and at all times shall remain, in full compliance with all regulations and applicable laws; including, without limitation, those concerning privacy, telemarketing and otherwise relating to Your use of the Services. You may enable access of the Service for use only by Authorized Parties solely for Your internal business purposes in accordance with this Agreement and not for the benefit of any third parties. You shall (a) have sole responsibility for the accuracy, quality, and legality of all Your Data; and (b) prevent unauthorized access to, or use of, the Service, and notify Spark Membership LLC promptly of any such unauthorized access or use.
5.3 Federal Regulations. You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in Federal Acquisition Regulation (“FAR”) section 2.101, the Services and documentation are “commercial items” and according to Defense Federal Acquisition Regulation (“DFAR”) section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
5.4 Spark Membership LLC Obligations. Spark Membership LLC shall: (a) provide applicable basic support for the Services to You at no additional charge as set forth in Exhibit “B,” and such additional support as You may purchase from Spark Membership LLC from time to time; (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for (i) planned downtime (of which Spark Membership LLC will provide reasonable notice to You in advance through the Website or via e-mail, or (ii) any unavailability caused by circumstances beyond Spark Membership LLC’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Spark Membership LLC’s employees), internet service provider failures or delays, or denial of service attacks (collectively “Force Majeure”), and shall provide the Services only in accordance with applicable laws and government regulations.
5.5 Non-Spark Membership LLC Providers. Spark Membership LLC or third-parties may make available third-party products or services, including, for example, Non-Spark Membership LLC applications and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any Non-Spark Membership LLC provider, product or service is solely between You and the applicable Non-Spark Membership LLC provider. Spark Membership LLC does not warrant or support Non-Spark Membership LLC applications or other Non-Spark Membership LLC products or services, whether or not they are designated by Spark Membership LLC as “certified” or otherwise, unless expressly provided otherwise in an Order Form.
5.6 Non-Spark Membership LLC Applications and Your Data. If You choose to use a Non-Spark Membership LLC application with the Service, you grant Spark Membership LLC permission to allow the Non-Spark Membership LLC application and its provider to access Your Data as required for the interoperation of that Non-Spark Membership LLC application with the Service. Spark Membership LLC is not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-Spark Membership LLC application or its provider.
5.7 Integration with Non-Spark Membership LLC applications. The Services may contain features designed to interoperate with Non-Spark Membership LLC applications. To use such features, you may be required to obtain access to such Non-Spark Membership LLC applications from their providers, and may be required to grant Spark Membership LLC access to Your account(s) on such Non-Spark Membership LLC applications. Spark Membership LLC cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Spark Membership LLC application ceases to make the Non-Spark Membership LLC application available for interoperation with the corresponding Service features in a manner acceptable to Spark Membership.
PAYMENT AND FEES.
6.1 Generally. In consideration for the licenses and rights granted under this Agreement, you shall pay all Fees specified in all Order Forms for Services and Implementation Services (together “Fees”) hereunder using a designated payment processor. Except as otherwise specified herein or in an Order Form or upgrade Order Form, (i) Payment obligations are non-cancellable and Fees paid are non-refundable and (ii) quantities purchased cannot be decreased during the relevant Service Term. By entering into this Agreement, you acknowledge that Your subscription to the Services has recurring payments and you accept responsibility for all recurring charges prior to cancellation or termination of this Agreement and authorize Spark Membership LLC to levy such charges. Spark Membership LLC reserves the right to modify and increase Fees and to institute new charges and Fees at any time upon thirty (30) days prior written notice to Customer (which may be sent by e-mail). All Fees are set in U.S. Dollars.
6.2 Overdue Charges. If any charges are not received from You by the due date, and You fail to pay such charges to Spark Membership LLC before the expiration of ten (10) business days following Spark Membership LLC’s issuance of written notice to You, then, in Spark Membership LLC’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) Spark Membership LLC may condition future subscription renewals and Order Forms on shorter payment terms.
6.3 Upgrades. If You choose to upgrade Your Service or increase the number of Locations authorized to access and use a Service during Your Service Term (an “Account Upgrade”), any incremental subscription Fees associated with such Account Upgrade will be prorated over the remaining period of Your then current Service Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Service Term, Your Fees will reflect any such Account Upgrades.
6.4 Suspension of Services and Acceleration. If any amount owing by You under this Agreement is 30 or more days overdue, and You fail to pay such amounts before the expiration of five (5) business days following Spark Membership LLC’s issuance of written notice to You, Spark Membership LLC may, without limiting its other rights and remedies, accelerate Your unpaid Fee obligations under such agreement (including any interest for late payments as specified above) so that all such obligations become immediately due and payable, and suspend Your access to the Services until such amounts are paid in full. Spark Membership LLC will give You at least five (5) business days prior written notice that Your account is overdue, in accordance with Section 11.2 (‘Notices’), before suspending Your access to the Services pursuant to this Section 6.4.
6.5 Taxes. Unless otherwise stated, Spark Membership LLC’s Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If Spark Membership LLC has the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You on demand, unless You provide Spark Membership LLC with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.6 Payment Disputes. Spark Membership LLC will not exercise its rights under Section 6.2 (‘Overdue Charges’) or 6.4 (Suspension of Services and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.7 Refunds or Credits. For the avoidance of any doubt, no refunds or credits for Fees or payments will be provided to You if You elect to downgrade Your Service plan. Downgrading Your Service plan may cause loss of content, features, or capacity of the Service as available to You under Your account, and Spark Membership LLC does not accept any liability for such loss.
WARRANTY & DISCLAIMERS.
7.1 Spark Membership LLC Warranties. Spark Membership LLC warrants only that (i) Spark Membership LLC has validly entered into this Agreement and has the legal power to do so and (ii) Spark Membership LLC will use commercially reasonable efforts consistent with industry standards to maintain the Services in a manner which minimizes errors and interruptions and shall perform the Implementation Services in a professional and workmanlike manner. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Spark Membership LLC or by third-party providers, or because of other causes beyond Spark Membership LLC’s reasonable control, but Spark Membership LLC shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Spark Membership LLC does not represent or endorse the accuracy or reliability of any opinion, advice or statement made through the Services, nor does Spark Membership LLC assume any liability for claims concerning unsolicited fax, e-mail, or voice messages sent by You or others under Your account or control through the Services (including those that violate the privacy rights of any person).
7.2 WARRANTY DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 7.1 AND 7.5 AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, Spark Membership LLCDOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR USE BY CUSTOMER; EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS.” SPARK MEMBERSHIP LLC FURNISHES THE ABOVE LIMITED WARRANTIES IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS AND MARTIAL ARTS FOR A PARTICULAR PURPOSE. EXCEPT AS SET FORTH IN SECTION 7.1 AND 7.5, SPARK MEMBERSHIP LLC WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY (i) A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, (ii) VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR COMPUTER PROGRAMS, OR (iii) YOUR DATA OR OTHER PROPRIETARY MATERIAL RESULTING FROM YOUR USE OF THE SERVICES.
7.3 Mutual Representations. Each Party represents and warrants (i) that such Party is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) that such Party has the legal right and authority to enter into and perform its obligations under this Agreement; (iii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iv) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
7.4 Customer’s Indemnity Obligations. You agree to indemnify, defend, and hold harmless Spark Membership LLC from and against any and all third-party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys’ fees and costs of investigations, experts and defense) arising from or relating to: (a) any actual or alleged breach by You of any provisions of this Agreement; (b) any access to or use of the Services by You; (c) any actual or alleged violation by You of the intellectual property, privacy or other rights of a third party; and (d) any dispute between You and another party regarding ownership of or access to Your Data; (e) Your violation of privacy rights and regulations including, without limitation, the TSR and TCPA, respectively, and (f) the infringement of any intellectual property rights of a third-party by You.
7.5 Spark Membership LLC’s Indemnity Obligations. Spark Membership LLC will indemnify and hold You harmless, from and against any claim against You by reason of Your use of a Service as permitted hereunder, brought by a third party alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). Spark Membership LLC shall at its own expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Spark Membership LLC for such defense, provided that (a) You promptly notify Spark Membership LLC of the threat or notice of such IP Claim; (b) Spark Membership LLC will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim; and (c) You fully cooperate with Spark Membership LLC in connection therewith. If use of a Service by You or Your End-Users has become, or, in Spark Membership LLC’s sole discretion, is likely to become, the subject of any such IP Claim, Spark Membership LLC may, at Spark Membership LLC’s option and expense, (i) procure for You the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Spark Membership, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Fees previously paid to Spark Membership LLC for the corresponding unused portion of Your Service Term for such Service(s). Spark Membership LLC will have no liability or obligation under this Section 7.5 with respect to any IP Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by You; (y) modification of the Service(s) by anyone other than Spark Membership; or (z) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section 7.5 state the sole, exclusive and entire liability of Spark Membership LLC to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You and Your End-Users.
7.6 Exclusive Remedy. This Section 7 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any types of claims described in this Section 7.
8.1 Generally. A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party’s prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (c) was independently developed by a Party without reliance on Confidential Information or as a result of a breach of any obligation owed to the other Party; or (d) was or is received from a third party without breach of any obligation owed by such third party to the other Party. For clarity, nothing in this Section 8.1 will restrict Spark Membership LLC with respect to Spark Membership LLC data or aggregated Data, which is not deemed to constitute Confidential Information hereunder.
TERM AND TERMINATION.
9.1 The Service Term shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, provision of the Services hereunder will automatically renew for additional periods equal to the expiring Service Term, or one year (whichever is shorter), unless either Party gives the other notice of non-renewal at least 30 days before the end of the relevant Service Term.
9.2.1 Termination Only for Breach. A Party may terminate this Agreement upon 30 days written notice to the other Party of a material breach of such Party if the breach remains uncured at the expiration of the prescribed cure period, or immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. For avoidance of doubt, Your termination other than for a material breach (i.e., for ‘convenience’) is not permitted hereunder.
9.2.2 Effect of Termination. Upon request by You within thirty (30) days following termination or expiration of this Agreement, and provided that You have paid Spark Membership LLC all amounts owed under this Agreement, Spark Membership LLC will make all Customer Data available to You for electronic retrieval for a period of thirty (30) days. After such thirty (30) day period, Spark Membership LLC will have no obligation to retain or provide Your Data, except as required by applicable law. If at any time during the Service Term You require Spark Membership LLC’s assistance in retrieving Your Data, additional charges may apply. UPON CANCELLATION OR TERMINATION, YOU AGREE THAT YOU WILL NOT BE ENTITLED TO A REFUND FOR ANY PROPORTIONAL UNUSED PORTION OF THE APPLICABLE SERVICE TERM.
9.2.3 Payment upon Termination. If this Agreement is terminated by Spark Membership LLC in accordance with this Section 9.2, You will pay any unpaid Fees covering the remainder of the term of all Order Forms and Upgrade Order Forms. In no event will termination relieve You of Your obligation to pay any Fees payable to Spark Membership LLC for the period prior to the effective date of termination.
9.3 Surviving Provisions. All provisions in this Agreement that should be deemed to survive termination in order to effectuate the intent of the Parties shall be deemed to so survive. Without limitation, the sections titled “Fees and Payment,” “Confidentiality,” “Warranty’s/Disclaimers,” “Indemnification,” “Limitation of Liability,” “Payment upon Termination,” “Removal of Content and Non-Spark Membership LLC applications,” “Surviving Provisions” and “Miscellaneous” will survive any termination or expiration of this Agreement.
LIMITATION OF LIABILITY
10.1 Generally. EXCEPT IN CONNECTION WITH CLAIMS FOR INDEMNIFICATION PURSUANT TO SECTION 7.4 OF THIS AGREEMENT, UNDER NO OTHER CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF, OR COULD HAVE FORESEEN SUCH DAMAGES.
10.2 Spark Membership LLC Limitation Amounts. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF Spark Membership LLC TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES, INCLUDING SUBSCRIPTION CHARGES, PAID BY YOU HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE SIX (6) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF Spark Membership LLC WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. YOU ACKNOWLEDGE THAT Spark Membership LLCHAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT.
10.3 Exceptions. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, Spark Membership LLC’s LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10.4 Rights only against Spark Membership LLC. Any claims or damages that You may have against Spark Membership LLC shall only be enforceable against Spark Membership LLC and not against any other entity or against Spark Membership LLC or such other entity’s officers, directors, representatives or agents.
11.1 Entire Agreement. This Agreement, together with any Order Forms, the API Terms and Conditions (if applicable), and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and supersede any prior agreements between You and Spark Membership LLC with respect to the subject matter hereof. In the event of a conflict between an Order Form and this Agreement, the Order Form will control. Except as provided herein, this Agreement supersedes and replaces all other prior and contemporaneous agreements, proposals or representations, written or oral, between Spark Membership LLC and You.
11.2 Notices. Any notices provided by Spark Membership LLC under this Agreement may be delivered to You within the Services platform or to the email address(es) Spark Membership LLC has on file for Your account. You hereby consent to receive notice from Spark Membership LLC through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to Spark Membership LLC under this Agreement must be delivered via first class registered U.S. mail, or reputable national overnight courier (e.g., Fed/Ex UPS, etc.), to Spark Membership LLC., Attn: Spark Membership LLC Customer Support, 10630 Wiles Road Coral Springs, FL 33067.
11.3 Force Majeure. Except for Customer’s obligations to pay money under this Agreement, neither Party shall be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the control of such Party, such as a war, act of terrorism, riot, natural disaster, or failure or diminishment of power or telecommunications or data networks or services, provided that such failure or diminishment is not solely attributable to Spark Membership, its Affiliates, employees, contractors or representatives; provided, that the Party whose performance or obligation is affected by any such event gives the other Party written notice thereof as soon as possible following the occurrence of such event.
11.4 No Third-party Beneficiaries. Nothing in this Agreement, whether express or implied, will confer upon any person or entity, other than the Parties and their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
11.5 Independent Contractors. The Parties are independent contractors. Except as otherwise expressly provided herein, nothing herein creates any joint venture, partnership, agency, employment, fiduciary or other relationship among the Parties, and no Party is authorized to make contracts or commitments in the name of or on behalf of any other without such Party’s prior written approval.
11.6 Amendments; Modifications. Spark Membership LLC may, in its sole discretion, make changes to this Agreement from time to time. Any changes Spark Membership LLC makes will become effective when a modified version of the Agreement is posted to the Website or Spark Membership LLC platform, and Spark Membership LLC agrees the changes will not be retroactive. If Spark Membership LLC makes any material changes to the Agreement, Spark Membership LLC will make commercially reasonable efforts to notify You within the Spark Membership LLC platform or by sending You an email. If You continue using the Services after any changes (or, if applicable, after Spark Membership LLC has indicated to You in writing that such changes will become effective), it shall mean that You have accepted them. If You do not agree to any changes, you must stop using the Services immediately, and You can terminate your account by emailing email@example.com.; provided, that such termination shall not terminate this Agreement or otherwise release You from Your obligations under this Agreement. It is Your obligation to ensure that You read, understand and agree to the latest version of this Agreement that has been posted on our Website and/or within the Spark Membership LLC platform. The legend at the top of the Agreement indicates when it was last changed and the current version.
11.7 Assignment; Delegation. No Party may assign any of its rights hereunder, nor delegate any of its duties hereunder, without the prior written consent of the other Party, except that: (a) any Party shall be entitled to transfer its interests to a third-party with which such Party is merged or which acquires all or substantially all of the assets or capital stock of such Party; and (b) You may assign Your rights and obligations under this Agreement to an Affiliate that Spark Membership LLC has approved in advance in writing. For avoidance of doubt, all uses of the word “You” and “Your” in this Agreement shall include your Spark Membership-approved Affiliate, as applicable.
11.8 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
11.9 Waiver. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by any Party in exercising any right hereunder shall not be deemed a waiver of that right.
11.10 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO ITS PRINCIPLES REGARDING CONFLICTS OF LAW, AND WITHOUT REGARD TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO, AND WAIVES ANY OBJECTION TO, THE EXCLUSIVE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF FLORIDA. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Broward County, Florida and both Parties hereby submit to the personal jurisdiction of such courts.
11.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which, when taken together shall constitute one Agreement.
11.12 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.
11.13 Survival. The provisions of this Agreement, which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination or expiration of this Agreement.
11.14 Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any Spark Membership LLC employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will promptly notify Spark Membership LLC’s Legal Department at firstname.lastname@example.org.
11.15 Attorney’s Fees and Costs. The prevailing Party on a net recovery basis in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
11.16 Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
11.17 Changes. Spark Membership LLC reserves the right at any time to modify, edit, adapt and update the Service or to discontinue any Spark Membership LLC products, including any part of the Services, with or without notice. You agree that Spark Membership LLC will not be liable to You or to any End User or third party for any such discontinuance, modification, editing, adaptation or updating of the Service, or of the Spark Membership LLC platform. You are free in your discretion to download Your User Content at any time to provide backup. Your failure to do so will not create any liability for Spark Membership LLC hereunder. By continuing to access or use the Services after those revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, please stop using the Services.
Service Level Terms
The Services shall be available 99%, measured monthly, excluding scheduled maintenance or upgrade periods. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Spark Membership LLC’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and Spark Membership LLC’s entire liability, in connection with Service availability, shall be that if (a) there is one or more periods of downtime lasting longer than one hour (each a “Qualifying Downtime Period”) and (b) You notify Spark Membership LLC in writing of the downtime promptly (but in no event longer than within 24 hours from the beginning of a downtime), Spark Membership LLC will credit Customer 5% of the monthly Service Fees for such period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day; provided, further that no more than [four] such credits may accrue per month regardless how many Qualifying Downtime Periods occur in any such month. Any one Qualifying Downtime Period shall begin to accrue as soon as You recognize (with prompt notice to Spark Membership) that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Spark Membership LLC in writing within 24 hours from the beginning of downtime, and failure to provide such notice will forfeit the right to receive downtime credit for a Qualifying Downtime Period. Spark Membership LLC’s blocking of data communications or other Services in accordance with this Agreement or its other policies shall not be deemed to be a failure of Spark Membership LLC to provide adequate service levels under this Agreement. Qualifying Downtime Period does not include any downtime that results from (i) events of Force Majeure, (ii) acts or omissions of Customer; (iii) acts or omissions beyond the exclusive control of Spark Membership, (iv) Amazon Web Services related downtime; (v) scheduled maintenance, upgrade periods, and (vi), customer requested maintenance.
Spark Membership LLC will provide Technical Support to Customer via Live Chat on weekdays during the hours of 8:00 am through 5:00 pm EST time, with the exclusion of US Federal Holidays and Florida State Holidays (“Support Hours”)