Effective Date: October 1, 2019

These Terms of Use Highlights summarizes important sections of SparX Works’ Terms of Use which is an agreement between visitors to and users of our Site and Services. Please read our full Terms of Use below for defined terms and the terms and conditions governing your use of our Site and Services.

To make it easier for you to review those parts of Terms that are relevant to you we have provided Terms of Use Highlights below.

HOWEVER PLEASE READ THE FULL TERMS OF USE CAREFULLY BEFORE USING THE SERVICES BECAUSE THEY ARE A LEGALLY BINDING DOCUMENT AND AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS.

SPARX WORKS TERMS OF USE

Effective Date: October 1, 2019

 

SparX Works Inc. (“SparX Works” “us”, “our”, or “we”) has created these Terms of Use (“Terms”) to govern the use of our online websites and mobile websites that connect to these Terms, such as sparxworks.com (collectively, “Sites”), mobile applications, such as SparX Works that connect to these Terms (“Apps”) and the augmented and mixed reality platform and services provided by us (collectively, “Software”). All services, provided by us through or in connection with the Sites, the Apps and your use of our Software is collectively referred to as the “Services.”

 

1. ABOUT SPARX WORKS

SparX Works™ is an augmented and mixed reality platform and service that utilizes an integrated cloud-based system allowing business entities as well as content creators to upload, store, and deliver augmented reality content through SparX Works’ universal app, cloud based custom apps, and apps that do not use the cloud for content delivery (these apps use SparX Works for content updates, analytics retrieval, and application updates). For more information about our Services click here.

 

2. ACCEPTANCE OF TERMS OF USE

Binding Terms. Please read these Terms carefully. It is a legal document that explains your rights and obligations related to your use of our Services and applies anytime you access or make a purchase through the Services. Each time that you access our Services you signify that you have read, understand, and agree to be bound by these Terms and our Privacy Policy incorporated herein by reference. If you do not agree to any of the terms of the Privacy Policy or these Terms, you must discontinue using the Services and terminate your access to the Services. By using the Services, you represent and warrant that you have the right, authority and capacity to enter into and to abide by these Terms for yourself or on behalf of a company or other legal entity and represent that you have the authority to bind such entity to these Terms. You agree that you will be liable to us for any breach of these Terms by anyone accessing your SparX Works account.

Updates to Terms. SparX Works reserves the right to update or otherwise change these Terms at any time by posting the most current version of the Terms on our Services with a new Effective Date shown. All changes are effective from the posted Effective Date. Your continued use of the Services after the new Effective Date signifies your agreement to any such changes.

Electronic Communications. By accessing or using the Services, you consent to having these Terms provided to you in electronic form and that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirements that such communications be in writing.

Non-Electronic Copy. You have the right to receive this Agreement in non-electronic form. To receive a non-electronic copy of these Terms, please email us at support@sparxworks.com or send a letter and self- addressed stamped envelope to the address set forth in the Contact Us Section of these Terms.

 

3. BILLING/CONTACT INFORMATION

Use of App. Use of the SparX Works App is free.

Purchasing our Services. The list of license fees is included in the license package information and will be subject applicable sales tax. It includes a one-time fee for a license to publish. A monthly maintenance fee and recurring fees for features the publisher uses. Please refer to rate card for the fees charged for our ready-made Services which may be updated without notice. NOTE THERE ARE NO REFUNDS FOR LICENSE FEES.

Custom Built Applications and Customized Services. Any custom-built applications or other customized services will be subject to a separate agreement. Contact us at support@sparxworks.com for more information and pricing.

Billing Information. When you provide payment information to SparX Works or its authorized processor, you represent that you are an authorized user of the payment card, PIN, key, account or other payment method specified by you (“Payment Method”), and you authorize SparX Works to charge such Payment Method for the full amount of the transaction. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, debit/credit card issuer or other provider of your chosen Payment Method (the “Payment Method Provider”). If SparX Works does not receive payment from your Payment Method Provider, you agree to pay all amounts due on your account upon demand. In the event we are advised of insufficient funds in your account or credit to cover your payment by your Payment Method, we may re-present such un-cleared or rejected payment to your Payment Method Provider. In the event we have to collect unpaid amounts you owe us, you will be liable for all collection costs, including attorneys’ and collection agency fees. SparX Works reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment and to update your information from available third-party sources. In the event SparX Works cannot charge the Payment Method you provide, we reserve the right to terminate your order and invoice you for any unpaid amounts.

Contacting You. When you provide us with contact information in connection with a particular activity or when using our Services, such as an email address or telephone number, you agree that this action constitutes a purchase or inquiry establishing a business relationship with us. You expressly consent to our communicating with you using contact information obtained directly from you or which is provided to us with your consent. You attest that you have the legal authority over any contact information provided to us and can provide us and/or third parties with the authorization to contact you. This means you may be contacted in person or by recorded message, by e-mail, telephone and/or mobile telephone number (including use of automated dialing equipment), text (SMS) message, IM messaging, or any other means of communication that your wireless or other telecommunications device may be capable of receiving), in accordance with applicable law. Please keep your contact information up to date as you are solely responsible for any contact information you provide to us.

 

4. USE OF THE SERVICES.

License Grant. SparX Works grants you a personal, non-exclusive, non-transferable, non-sublicensable limited right and license to install and use the Software pursuant to the license you choose to accept and subject to payment as provided herein or when you access or use our Sites, Apps, or other Services (“SparX Works License”). The rights that SparX Works grants you under the SparX Works License are subject to these Terms, and you may only make use of the SparX Works License if you comply with all applicable terms. The SparX Works License becomes effective on the date you accept this Agreement. The use of the Software is licensed, not sold, to you under the SparX Works License and does not grant you any title or ownership in our Services, including our Software. All rights granted to you under this Agreement are granted by express license only and not by sale. No license or other rights shall be created hereunder by implication, estoppel, or otherwise.

Modification to Services. SparX Works has the right to modify its Services (and products and services accessible through its Services) at any time in its sole discretion. Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of SparX Works in providing its Services is to stop using our Services.

License to User Content. All content you provide to SparX Works in conjunction with the use of our Software or services (“User Content”) must comply with these Terms. By submitting, transmitting, or displaying your User Content on or through the Services, you automatically grant (and you represent and warrant that you have the right to grant) to SparX Works, its licensees, and their respective successors in business and assigns, officers, directors, employees, licensees, agents, representatives a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, and sublicensable license to use, copy, modify, adapt, distribute, and publicly display your User Content (“User License”). You may not create, generate, or make available through the Services, including the Software, any User Content to which you do not have the right to grant SparX Works such license. SparX Works reserves the right to take down or delete any User Content in its discretion.

Responsibility for User Content and Access and Use of Services. You are entirely responsible for maintaining the confidentiality of your password and account. You may not use anyone else’s account at any time. You understand that you are personally responsible for the use of and access to the Services by any employee or agent of yours, or any person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if such use or access was not authorized by you, as well as any and all results of any such use or access. By submitting User Content to any of our servers you agree to use best efforts to scan and remove any viruses or other contaminating or destructive features before submitting any material.

Representation of Ownership. You retain copyright and other intellectual property rights with respect to any User Content that you submit or distribute through the Services to the extent that you have such rights under applicable law. By uploading User Content on the Services you represent and warrant that (i) you own such User Content or otherwise have the right to grant us the User License set forth in these Terms; (ii) the User Content is accurate and not confidential and the distribution, submission, transmission, posting and use of your User Content on the Services is not in violation of any applicable laws or contractual restrictions or other third party rights (including, without limitation, privacy, publicity, and intellectual property rights); and (iii) you are solely responsible for, and SparX Works will have no liability in connection with, your User Content or any other User Content you access through or use in conjunction with the Services. Your ownership in your User Content does not confer any rights to the Services other than the limited SparX Works License set forth herein and agree not to take action against us in relation to any material you submit.

Feedback. All comments or materials submitted to us, including testimonials, images, reviews, questions, comments, suggestions or ideas (collectively, “Feedback”), is received and treated by us on a non- confidential and unrestricted basis. If you provide SparX Works with any Feedback, you hereby grant SparX Works a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, sublicensable license to reproduce, distribute, modify, prepare derivative works based on, publicly perform, publicly display, make, have made, use, sell, offer to sell, import, and otherwise exploit that Feedback for any purposes, for all current and future methods and forms of exploitation throughout the world. If any such rights may not be licensed under applicable law (such as moral and other personal rights), you hereby waive and agree not to assert all such rights. You understand and agree that SparX Works is not required to make any use of any Feedback that you provide. You agree that if SparX Works makes use of your Feedback, SparX Works is not required to credit or compensate you for your contribution. You represent and warrant that you have sufficient rights in any Feedback that you provide to SparX Works to grant SparX Works and other affected parties the rights described above. This includes but is not limited to intellectual property rights and other proprietary or personal rights.

User Requirements. You agree that you may not access or use the Services in order to:

• use account information of any other user of the Services or sell, buy, license or transfer access to your account;
• copy, reproduce, distribute, display, or use the Services in a way that is not expressly authorized in these Terms;
• sell, rent, lease, license, distribute, or otherwise transfer the Services to a third party;
• reverse engineer, derive source code from, modify, adapt, translate, decompile, or disassemble or make derivative works based on it;
• develop a product which is competitive with any of SparX Works’ products or services;
• remove, disable, circumvent, or modify any proprietary notice or label or security technology included in it;
• use, export, or re-export it in violation of any applicable law or regulation;
• use any automated software or devices, such as spiders, robots or data mining techniques such as scraping, spidering, crawling or any other techniques to download, store, distribute or otherwise reproduce SparX Works content or to manipulate the Services;
• interfere with, interrupt, destroy or limit the functionality of the Services or any computer software or hardware or telecommunications equipment;
• damage, disable, overburden, or impair any SparX Works server, or networks connected to any SparX Works server, or interfere with any other party’s use and enjoyment of any Services;
• gain unauthorized access to any Services, other accounts, computer systems or networks connected to any SparX Works server or to any of the Services, through hacking, cracking, and distribution of counterfeit software, password mining or any other means;
• infringe any copyright, trademark, patent, trade secret, publicity or privacy right or any other proprietary right or disclose any trade secret of or violate any confidential obligation of any person or entity;
• upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files or data, or any other similar software or programs that may damage the operation of any Services or any user’s computer;
• exploit, distribute or publicly communicate any error, miscue or bug which gives an unintended advantage;
• for any unlawful purpose or any illegal activity;
• to post or submit any content whatsoever that is false, defamatory, libelous, implicitly or explicitly offensive, vulgar, obscene, threatening, abusive, hateful, racist, discriminatory, of a menacing character or likely to cause annoyance, inconvenience, embarrassment, anxiety or could cause harassment to any person or include any links to pornographic, indecent or sexually explicit material of any kind, as determined in SparX Works’ sole discretion;
• post content that contains links to other sites that contain the kind of content, which falls within the descriptions prohibited by this Section;
• post content that is likely to cause reputational harm to SparX Works as determined in its sole discretion.

 

Injunctive Relief. You expressly acknowledge and agree that there may be no adequate remedy at law for a breach of this Section, that such a breach may irreparably harm SparX Works and SparX Works is entitled, without limiting any of its other remedies at law or equity, to seek injunctive relief (temporary and permanent) from any court of competent jurisdiction immediately upon request and without the need to post a bond or security, with respect to any such breach or potential breach of these Terms.

Indemnification. You agree to defend, indemnify, and hold harmless SparX Works, its affiliates, and licensors, and their respective officers, directors, employees, contractors, agents, licensors, and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) resulting from your User Content or violation of these Terms.

Objectionable Content. SparX Works specifically disclaims any liability with regard to the User Content and any actions resulting from your participation in any posting Services. SPARX WORKS IS NOT RESPONSIBLE FOR ANY USER’S MISUSE OR MISAPPROPRIATION OF ANY USER CONTENT OR INFORMATION YOU POST ON OR THROUGH THE SERVICES. If you encounter something you find objectionable and in violation of these Terms, you can report it to support@sparxworks.com. If you encounter something that is a copyright infringement see the Digital Millennium Copyright Act Notice below.

Termination of Suspension of Services. SparX Works reserves the right to terminate your access to its Services or terminate your account without any liability if it believes in its sole discretion that you have violated or are likely to violate these Terms, you don’t cooperate with our reasonable investigation of any suspected violation of these Terms, there is an there is an event for which we reasonably believe that the suspension of your use of the Services is necessary to protect SparX Works or our other customers; or if required by law. We reserve the right to give you notice of a suspension under this Section and provide you the opportunity to cure any such breach prior to suspension unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect SparX Works or its other customers from imminent legal, reputational, operational or security risk. These Terms which reasonably should survive termination will do so; by way of example but not of limitation, all disclaimers, limitations of liability, obligations regarding SparX Works’ proprietary rights and dispute resolution will survive.

 

5. PROPRIETARY RIGHTS IN SPARX WORKS CONTENT

Ownership of Content and Marks. The Services, including without limitation the Sites, Apps and Software, which includes any patches, updates, and upgrades, and all related content and documentation made available to you by SparX Works under this Agreement, including but not limited to all software code, documentation and methods of operation that are related to the application, and any copies of any of the foregoing and all content published on or accessible through the Services (“SparX Works Content”) is owned by SparX Works or its licensors, and is protected by laws governing copyrights patents, trademarks, trade secrets and/or other proprietary rights. SparX Works owns a copyright in the selection, coordination, arrangement and enhancement of such SparX Works Content and a copyright in the Services. All trademarks, logos, service marks, trade names, and trade dress appearing on the Services (“Marks”), are proprietary to SparX Works or its licensors. You acknowledge that you do not acquire any ownership rights in any SparX Works Content or Marks downloaded or accessed from the Services. You may not frame or utilize framing techniques to enclose any Mark or SparX Works Content (including images, text, page layout, or form) nor use any Meta tags or any other “hidden text” utilizing SparX Works’ or its licensors’ name or Marks without the prior express written consent of SparX Works. You agree not to copy, reproduce, publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, the Sites, Apps or Software of any other Services or any of the Marks or SparX Works Content, in whole or in part, without the prior written consent or SparX Works. SparX Works grants you a limited, revocable, non- sublicenseable license to access (but not through scraping, spidering, crawling or other technology or software used to access data) and display the SparX Works Content (excluding any software code) solely for your use in connection with accessing and using the Services as reasonably necessary to use them for their intended purpose. SparX Works and its licensors reserve all rights not expressly granted in and to its respective Marks and SparX Works Content.

No Other License Granted. Except for allowing you to use the Services for your use as set forth herein, when you use the Services, you are not receiving a license or any other rights from SparX Works, including intellectual property or other proprietary rights of SparX Works. You understand that you have no rights to the SparX Works Content or Services or any other SparX Works property except for the limited SparX Works License as indicated in these Terms.

 

6. DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE

Filing a Complaint. SparX Works has designated an agent with the United States Copyright Office in accordance with the terms of the Digital Millennium Copyright Act (the “DMCA”) and avails itself of the protections under the DMCA. We reserve the right to remove any User Content on the Services which allegedly infringes another person’s copyright. We are under no obligation to scan content posted for any violations of third party rights. However, we respect the copyright interests of others and it is our policy not to permit materials known by us to infringe another party’s copyright to remain on the Services. If you believe any materials on any Services infringes a copyright, you should provide us with a written request to takedown the allegedly infringing material in the form of a written letter, sent by fax or regular mail only, (“DMCA Takedown Notice”) that at a minimum includes:

• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
• Your name, address, telephone number and email address (if available);
• A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
• A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
• The signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Notwithstanding the foregoing, we reserve the right to ignore a DMCA Takedown Notice that is not in compliance with the DMCA.

 

Filing a Counter-Notice. If your material has been removed or blocked by us as a result of our receipt of a DMCA Takedown Notice, you may send us a request asking for the allegedly infringing material to be restored in the form of a written letter, sent by regular mail only, (“DMCA Counter-Notice”) that at a minimum includes:

• Identification of the copyrighted work (or works) that was removed by SparX Works and the location at which the works appeared before they were removed. The information must be reasonably sufficient to permit us to identify the copyrighted work; Your name, address, telephone number and email address (if available);
• A statement that you consent to the jurisdiction of the U.S. Federal District Court for the judicial district in which your address is located, or the State of California if your address is outside of the United States;
• A statement that you will accept service of process from the person (or an agent of such person) who provided the DMCA Takedown Notice to us;
• A statement that you have a good faith belief that the allegedly infringing material identified above as the copyrighted work was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
• A signature of a person authorized to act on behalf of the owner of the copyrighted work that was taken down.

When we receive the DMCA Counter-Notice, we will send a copy of the DMCA Counter-Notice to the party who originally sent us the DMCA Takedown Notice requested the removal of the allegedly infringing material and we will reinstate the allegedly infringing material, unless that party obtains a court order supporting removal of the allegedly infringing material. Notwithstanding the foregoing, we reserve the right to ignore a DMCA Counter-Notice that is not in compliance with the DMCA.

Both the DMCA Takedown Notice and the DMCA Counter-Notice must be sent to our designated DMCA designated agent addressed as follows:

Designated Agent: William Newell
Designated Agent Address: 212 N. Juanita Ave. #2. Redondo Beach, CA 90277

 

7. GENERAL

Age Requirements. You must be at least 18 years old or the age of majority in your state or country of residence, whichever is older, to use the Services.

No Third-Party Beneficiaries. These Terms are intended solely for the benefit of each party hereto and their respective successors and permitted assigns, and the parties do not intend to confer third-party beneficiary rights upon any other person.

International Users. The Services can be accessed from locations around the world. SparX Works makes no representations that the Services, the SparX Works Content or other services available through the Services, is appropriate for use at other locations outside the United States. Access to the Services from locations where the Services or SparX Works Content or User Content is illegal is prohibited. If you access the Services from a location outside the United States, you are responsible for compliance with all local and international laws.

U.S. Export Controls. Our Software is subject to United States export controls. No Software may be downloaded, otherwise exported or re-exported (i) into (or to a national or resident of) any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

Communications from SparX Works. You may receive online communications from our marketing partners or from us. To unsubscribe from any promotional email, click on the “Unsubscribe” link at the bottom of the email. To see how we use your personal information and for other choices go to our Privacy Policy at URL.

Idea Submissions. SparX Works does not accept unauthorized idea submissions. Any ideas disclosed to SparX Works are not confidential and SparX Works may develop, use and freely disclose or publish similar ideas without compensating you or accounting to you.

Links and Other Third-Party Activities. You may be able to access other websites or resources through links accessible through Services. Because SparX Works has no control over such websites you acknowledge and agree SparX Works is not responsible for the availability of such external websites or resources and does not endorse and is not responsible or liable for any content, advertising, products or other materials or available from such websites or resources. You further acknowledge and agree that SparX Works shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such websites or resource.

 

8. LEGAL NOTICES

Disclaimer of Warranties. YOU UNDERSTAND THAT YOUR USE OF THE SERVICES (INCLUDING ANY DOWNLOADS OR ANY LOSS OF DATA OR OTHER DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE YOU EXPERIENCE FROM USING OR ACCESSING THE SERVICES IS AT YOUR SOLE RISK. YOU UNDERSTAND THAT SPARX WORKS DOES NOT WARRANT THAT THE RESULTS OBTAINED FROM YOUR USE OF THE SERVICES WILL MEET YOUR EXPECTATIONS AND THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED. SPARX WORKS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR THAT THE SITE, THE APP, THE SOFTWARE OR THE SERVER THAT MAKES THE SERVICES AVAILABLE, WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. THE DOCUMENTS AND RELATED GRAPHICS PUBLISHED ON THE SERVICES COULD INCLUDE TECHNICAL, TYPOGRAPHICAL OR OTHER INACCURACIES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SPARX WORKS, ITS LICENSORS MAKE NO WARRANTY THAT (1) THE SERVICES WILL OPERATE PROPERLY, (2) THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, (3) THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, BUG FREE, OR ERROR FREE IN ANY OR ALL CIRCUMSTANCES, OR (4) THAT ANY DEFECTS IN THE SERVICES CAN OR WILL BE CORRECTED. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312 OF THE UNIFORM COMMERCIAL CODE OR IN ANY OTHER COMPARABLE STATUTE IS EXPRESSLY DISCLAIMED. THIS PARAGRAPH WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SPARX WORKS MAY AT ITS SOLE DISCRETION REMOVE, REVISE OR CHANGE ANY MATERIAL ON THE SERVICES OR WITHDRAW ACCESS TO IT AT ANY TIME.

IF YOU ARE DISSATISFIED WITH ANY OF THE SERVICES OR CONTENT ACCESSIBLE OR CONTAINED IN THE SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SERVICES.

SPARX WORKS MAY PROVIDE PATCHES, UPDATES, OR UPGRADES TO THE SERVICES, INCLUDING THE SOFTWARE, THAT MUST BE INSTALLED IN ORDER FOR YOU TO CONTINUE TO USE THE SOFTWARE OR SERVICES. SPARX WORKS DOES NOT HAVE ANY MAINTENANCE OR SUPPORT OBLIGATIONS WITH RESPECT TO THE SERVICES.

 

Liability Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SPARX WORKS OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (“RELEASED PARTIES”) BE LIABLE TO YOU (OR ANY THIRD PARTY MAKING CLAIMS THROUGH YOU) FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF USE, PROFITS, DATA, OR OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR UNAUTHORIZED ACCESS TO AND TAMPERING WITH YOUR PERSONAL INFORMATION OR TRANSMISSIONS, ARISING OUT OF OR RELATED TO THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE, OR NON-PERFORMANCE OF THE SERVICES, EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, SOME COUNTRIES, STATES, PROVINCES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OF LIABILITY AS STATED ABOVE, SO THE ABOVE TERMS MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

IF ANY PART OF THESE WARRANTY DISCLAIMERS OR LIMITATIONS OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN SPARX WORKS’ AGGREGATE LIABILITY FOR ALL CLAIMS UNDER SUCH CIRCUMSTANCES FOR LIABILITIES SHALL NOT EXCEED WHAT YOU PAID FOR THE SERVICES FOR THE LAST 30-DAY PERIOD YOU WERE CHARGED.

 

Indemnification. To the maximum extent permitted by law, you agree to indemnify, defend and hold harmless SparX Works Inc., and each of its affiliated companies and their respective directors, officers, employees, agents, representatives, resellers, licensors, suppliers, investors, owners, assigns (“SparX Works Indemnitees”), from and against any and all liabilities, losses, damages (including any special, indirect, incidental, consequential, exemplary or punitive damages), causes of action, claims, settlement payments, interest, actions, suits, awards, judgments, diminution in value, fines, fees or penalties, as well as any other charges, costs or expenses (including, but not limited to, any court filing fee, court cost, arbitration fee, arbitration cost, witness fee, as well as any other fee or cost of investigating, defending or otherwise asserting any claim for indemnification under these Terms, including, without limitation, in each case, any attorneys’ fees, other professionals’ fees or disbursements) (collectively, “loss”), in any way arising from or related to your violation of any of these Terms, including without limitation your User Content and access by anyone through your account. You agree to reimburse SparX Works on demand for any losses incurred by SparX Works whether in a court judgment or settlement, based on any matter covered by these Terms.

California Residents: If you are a California resident and in connection with the foregoing release, you hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

 

9. ARBITRATION / DISPUTE RESOLUTION

Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of California without application of conflict of laws rules, except that the Arbitration provisions shall be governed by the Federal Arbitration Act.

 

Resolution of Any Dispute. In the event a dispute arises between you and SparX Works (“Dispute”), we want to provide you with an efficient, neutral and cost- effective means of resolving the dispute. Most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting our customer care department or calling 310 316 4349 or writing us at SparX Works Inc., 212 N. Juanita Ave. #2. Redondo Beach, CA 90277. If, however, the Dispute cannot be resolved by the personnel directly involved, the parties shall first attempt in good faith to resolve the Dispute promptly by negotiation between duly appointed executive officers or other representatives of such parties, with full authority to negotiate and settle the Dispute. If a Dispute has not been resolved by negotiations within 90 days as provided hereinabove, such Dispute shall be submitted to JAMS, or its successor (collectively, “JAMS”), for mediation as provided hereinbelow. Any party involved in the Dispute may commence mediation by providing to JAMS and each other party involved in the Dispute a written request for mediation, setting forth the subject of the Dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS’ panel of neutrals and in scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator and any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties; provided, however, that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. None of the parties may commence arbitration or a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, or 30 business days after the date of filing the written request for mediation, whichever occurs first. Mediation may continue after the commencement of arbitration or a civil action, if the parties so desire.

Limitation of Legal Remedies. If there is a dispute that remains unresolved, INSTEAD OF SUING IN COURT, YOU AND SPARX WORKS EACH AGREE TO THE FULLEST EXTENT PERMITTED BY LAW TO ARBITRATE DISPUTES THROUGH BINDING ARBITRATION PURSUANT TO THE JAMS ARBITRATION RULES AND PROCEDURES, ON AN INDIVIDUAL BASIS, WITHOUT CLASS RELIEF, EXCEPT FOR DISPUTES PERTAINING TO SPARX WORKS’ INTELLECTUAL PROPERTY RIGHTS; AND STATUTORY CLAIMS THAT PURSUANT TO LAW ARE NOT ARBITRABLE. This agreement to arbitrate is intended to be broadly interpreted. It includes claims based in contract, tort, statute, fraud, misrepresentation or any other legal theory (“Claim(s)”). The arbitrator’s decision and award are final and binding, with some exceptions under the Federal Arbitration Act, 9 U.S.C. 1, et seq., and judgment on the award may be entered in any court with jurisdiction.

Jury Trial Waiver. YOU AND SPARX WORKS EACH VOLUNTARILY WAIVE THE RIGHT TO TRIAL BY JURY IN RESOLVING ANY DISPUTE BETWEEN US ARISING OUT OF THESE TERMS OR THE SERVICES.

Class Action Waiver. YOU AND SPARX WORKS EACH AGREE THAT CLAIMS AGAINST THE OTHER MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND NOT IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING. All arbitrations under these Terms must be conducted on an individual (and not a class-wide) basis, and an arbitrator will have no authority to award class-wide relief. You acknowledge and agree that these Terms specifically prohibit you from commencing any legal proceedings as a representative of others, participating in a class, representative, or collective action as a class representative, class member or an opt-in party, acting as a private attorney general, or joining or consolidating Claims with claims or proceedings brought by any other person (“Class Action Waiver”).

Arbitration Procedures. A party who intends to seek arbitration must first send to the other a written Notice of Dispute describing the nature and basis of the Claim and setting forth the specific relief sought (a “Notice”). All Notices to SparX Works must be sent to the following address: SparX Works Inc. 212 N. Juanita Ave. #2. Redondo Beach, CA 90277. All notices to you will be sent to the email or street address provided in your account, if available. Upon receipt of such Notice, the receiving party will have a 60-day period in which it may satisfy the Claim against it by fully curing the Claim, providing all the relief requested in the Notice, or entering into a settlement to resolve the Claim to the mutual satisfaction of the parties. After the expiration of such 60-day cure period, you or SparX Works may commence an arbitration proceeding. Unless otherwise agreed to by you and SparX Works in writing, the arbitration will be governed and conducted by JAMS before a single arbitrator with substantial experience in the internet industry and shall follow substantive law in adjudicating the dispute. This section shall be construed as a written agreement to arbitrate pursuant to the Federal Arbitration Act (“FAA”). You and SparX Works agree that this section satisfies the writing requirement of the FAA. The arbitration of any claim will be conducted in the State of California, and for any non-frivolous claim that does not exceed $5,000.00, you shall have the choice as to whether the hearing is conducted in person or by telephone. Each party will pay the fees and costs of its own counsel, experts and witnesses. The JAMS rules are available on its website at www.jamsadr.com. To the extent that this dispute resolution section conflicts with JAMS minimum standards for procedural fairness, the JAMS rules and/or minimum standards for arbitration procedures in that regard shall control. Neither party shall sue the other party other than as provided herein or for enforcement of this clause or for the arbitrator’s award; and any such suit may be brought only in Federal District Court or, if any such court lacks jurisdiction, in any state court that has jurisdiction. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, or enforceability of these Terms including any claim that all or any part of these Terms are void or voidable. However, the preceding sentence shall not apply to the clause entitled “Class Action Waiver”.

Exception to Arbitration. Any dispute, or action pertaining to SparX Works’ intellectual property rights and statutory claims that pursuant to law are not arbitrable.

Survival. This arbitration provision shall survive termination of these Terms.

Severability. If any provision of this Section is declared or found by a court of competent jurisdiction or arbitrator to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions will remain fully enforceable, except that if the Class Action Waiver for any Claim cannot be enforced, then the provision to arbitrate will not apply.

 

10. MISCELLANEOUS

These Terms and policies incorporated herein are the entire agreement between you and SparX Works. They supersede any and all prior or contemporaneous agreements between you and SparX Works relating to your use of the Services. You may not assign your rights under your account to any third party without SparX Works’ prior written permission. SparX Works may assign these Terms, in whole or in part, at any time. If any part of these Terms is determined to be invalid or unenforceable, it will not impact any other provision of these Terms, all of which will remain in full force and effect. Headings in the Terms are for convenience of reference only and shall not affect the interpretation or construction of this agreement. The failure of SparX Works to partially or fully exercise any rights or the waiver of SparX Works of any breach of these Terms by you, shall not prevent a subsequent exercise of such right by SparX Works or be deemed a waiver by SparX Works of any subsequent breach by you of the same or any other term of these Terms. The rights and remedies of SparX Works under these Terms and any other applicable agreement between you and SparX Works shall be cumulative, and the exercise of any such right or remedy shall not limit SparX Works’ right to exercise any other right or remedy.

 

11. CONTACT US

Please email us at support@sparxworks.com or contact customer service at 310 316 4349 or write to us at: 212 N. Juanita Ave. #2. Redondo Beach, CA 90277, if you have any questions about these Terms.