This Agreement sets forth the Terms and Conditions governing your use and subscription to the Spark1-2-1 System (the “System”). By using the information, tools, features and functionality located on Spark1-2-1 you agree to be bound by this Agreement. No representation, warranty, term or condition, and no statements or agreements by an employee or agent or dealer of Spark1-2-1, other than as specifically set forth in this Agreement, shall be binding on Spark1-2-1. The System has maximum data storage limits. You acknowledge and agree that Spark1-2-1 has the right to monitor the amount of data you have stored at any time and on an on-going basis. Spark1-2-1 shall have the right at any time to add to, modify or delete any aspect, feature or requirement of the System, including but not limited to equipment and system requirements.
2. SERVICES PROVIDED
The services provided by Spark1-2-1 is the transmission of “Chat” or “Text” communication as well as various file formats. Spark1-2-1 shall have no responsibility for any of the content of its users or any third party, privacy policies, or practices. Spark1-2-1 does not censor or edit any of the content of its users or third party.
3. GRANT OF LICENSE
As long as you are in compliance with this Agreement, Spark1-2-1 hereby grants you a limited, non-exclusive, non-transferable, revocable, non-sublicenseable right and license to access and use the Services, solely in accordance with the terms and conditions of this Agreement. Unless explicitly stated otherwise, any new features provided by Spark1-2-1 that augment the current Services shall also constitute “Services” and shall be subject to these terms and conditions. You may not, allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Services for any purpose whatsoever. You may not allow any unauthorized third party to access the Services for any purpose whatsoever. All rights not expressly granted under this Agreement are retained by Spark1-2-1.
4. SERVICE CHARGES
You understand and acknowledge that in the event that you utilize the Spark1-2-1 Service through your mobile phone, your wireless service provider may charge you additional fees for accessing the Internet.
5. TRIAL OR PROMOTIONAL OFFERS
From time to time Spark1-2-1 or its’ representatives may offer a free trial promotional offer. Spark1-2-1 may provide the services of the Spark1-2-1 system at no charge. Any promotional or trial period offer may not be combined with any other. If you or another member of your company or household has been a Spark1-2-1 subscriber within the last 12 months, you are not eligible to receive a free trial.
6. PROHIBITED USES
You may not use the Spark1-2-1 system to transmit, any material that harasses, threatens, or abuses another person; is libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, indecent or otherwise objectionable; violates any applicable law restricting the export or import of data, software, or any other content, or encourages conduct that would constitute a criminal offense; gives rise to civil liability; that advertises any illegal service or the sale of any items the sale of which is prohibited or restricted by any applicable law; or otherwise violates any applicable local, state, national or foreign law or regulation.
You understand and agree that any alerts provided to you through the Services may be delayed or prevented by a variety of factors. Spark1-2-1 does its best to provide alerts in a timely manner with accurate information. However, we neither guarantee the delivery nor the accuracy of the content of any alert. You also agree that Spark1-2-1 (or any of its resellers, Agents or Dealers) shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert.
8. YOUR CONDUCT
8.1 You may not resell or redistribute the System or the use of the System.
8.2 You assume all risks with respect to materials and content recorded and stored, or otherwise made available, through the use of the System.
8.3 You agree to comply with all applicable laws in your use of the System without limitation.
8.4 You are solely responsible for the protection and secrecy of any password providing access to the System and its services.
9. DISCLAIMER OF WARRANTY
YOU AGREE THAT THE SYSTEM AND THE SERVICES PROVIDED THROUGH USE OF THE SYSTEM ARE, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. YOU AGREE THAT ALL USE OF THE SYSTEM ARE AT YOUR SOLE RISK.
10. LIMITATION OF LIABILITY
10.1 IN NO EVENT (INCLUDING NEGLIGENCE) WILL Spark1-2-1 OR ANY OF ITS AUTHORIZED DEALERS, AGENTS, SUBCONTRACTORS OR REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE OR THE BREACH OF ANY WARRANTY OR AGREEMENT.
10.2 SOME PROVINCES/STATES DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless Spark1-2-1 and its affiliates, and its and their officers, directors, employees, subcontractors and agents, from and against any and all claims and expenses, including reasonable attorneys fees, arising out of or related in any way to (i) the use of the System by you or otherwise arising out of the use of your account or any equipment or facilities in connection therewith or (ii) any breach of this Agreement by you.
12. SUSPENSION OR CANCELLATION OF THIS AGREEMENT
You understand that Spark1-2-1 may stop or suspend service if the following occur:
12.1 There is an interruption or unavailability of the Internet service for your System.
12.2 You do not pay ANY subscription fee related to the Services, after Spark1-2-1 or any of it’s Authorized Agents, has given you ten (10) days notice of its intent to s cancel service because of nonpayment. Spark1-2-1 or its’ Authorized Agents may charge a re-connection fee if service is suspended for non-payment.
12.3 Spark1-2-1 is unable to provide service because of some action or ruling by any governmental authority.
13. ASSIGNEES AND SUBCONTRACTORS
Spark1-2-1 may transfer or assign this Agreement, or any right or obligation hereunder, to any other company. You may not transfer this Agreement to someone else (including someone who purchases or rents your premises) unless Spark1-2-1 first approves the transfer in writing.
14. LIMITATION ON LAWSUITS; WAIVER OF JURY TRIAL
Both Spark1-2-1 and you agree that no lawsuit or any other legal proceeding connected with this Agreement shall be brought or filed more than one (1) year after the incident giving rise to the claim occurred. In addition, any such legal proceeding shall not be before a jury. EACH PARTY GIVES UP ANY RIGHT TO A JURY TRIAL.
15. FORCE MAJEURE
Spark1-2-1 shall have no liability for failure of the System due to circumstances beyond its control, including without limitation, acts of God, flood, natural disaster, regulation or governmental acts, fire, civil disturbance, strike or weather.
16. User of Spark1-2-1
User Information and related metadata is the sole property of Spark1-2-1 including user lists and User ID’s associated to any Merchant.
16. ENTIRE AGREEMENT
The entire and only agreement between you and Spark1-2-1 and its’ Authorized Agents is written in this Agreement. If any provision of this Agreement is found to be invalid or illegal by a court, the balance of the Agreement will remain in force. Canadian Subscribers agree that the sole venue for any action brought under this agreement, by either party, shall be the court with appropriate jurisdiction in Calgary, Alberta, Canada; U.S. Subscribers agree that this Agreement is performed in the state of Florida and shall be governed by the Laws of Florida. You agree that the sole venue for any action brought under this agreement, by either party, shall be the court with appropriate jurisdiction in Miami-Dade County.