TERMS OF SERVICE
Effective Date: May 25, 2018
- Binding Agreement; Updates or Modifications to Agreement.
- Eligibility to Use the Services; Licenses; Termination.
2.1. Subject to the terms and conditions of the Agreement, the Services are available only to those individuals who have received an invitation email to use the Services or a participation link from which to register. The invitation email may be sent directly from the Organization or through the Services by the individual user who acts as the organizer for the group of individuals who wish to use the Services (the “Organizer”). You are only eligible to use the Services for the group for which you are invited, and subject to you being a member in good standing of such group. All individuals registering for and/or using the Services must be at least eighteen (18) years of age, or such greater age of majority as may be required for an individual to agree to the terms and conditions of the Agreement. By registering for or using the Services, you represent and warrant that you meet such age requirement.
2.2. As part of your obligations under the Agreement, and as a condition to your eligibility to use the Services at any time, you represent, warrant and covenant that you are in full compliance with all of the terms and conditions of the Agreement and that your use of the Services has not been previously terminated by us.
2.3. The only way we use data is to make the introductions that are inherent in the very purpose of the platform (providing introductions to other participants), and conceivably to make platform improvements.
By submitting anything to us, you represent, warrant, acknowledge and agree that (a) you are entitled to submit it to us, that it is accurate and not confidential or in violation of any contractual restrictions or third party rights.
2.4. On the condition that you comply with the terms and conditions of the Agreement, we grant you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access the Services, through a generally available web browser or mobile device, to view information and use the Services that we provide on and in accordance with the Agreement. Any other use of the Services is strictly prohibited and a violation of the Agreement. We reserve all rights not expressly granted in the Agreement, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in the Services and all related items, including any and all copies made of the SparkCollaboration.com website.
2.5. We have the right, in our sole discretion, to terminate your use of the Services and/or the Agreement at any time, for any or no reason and with or without notice including, but not limited to, for your actual or suspected breach of the Agreement. You may terminate your use of the Services upon notice to us pursuant to Section 12.1. In the event of the termination of your use of the Services and/or the Agreement, you agree not to use or attempt to use all or any part of the Services without our prior written permission. You agree that we will have no liability to you for our termination of the Agreement and/or your access to or use of the Services.
- The Services and Changes to the Services; Fees;
3.1. Through the Services, we provide, among other things, functionality that enables users to initiate contact and arrange physical meetings with other individuals, organizations and businesses at public or private venues, residences or other locations (each of such interactions and meetings, whether electronic, in-person or otherwise, an “Interaction” and, collectively, the “Interactions”). We reserve the right to change the Services from time to time, in whole or in part and in our sole discretion. For the purposes of the Agreement, “Services” means and includes all of such changes made by us from time to time. We reserve the right to temporarily or permanently discontinue all or part of the Services at any time and in our sole discretion. You agree that we are not liable to you or any third party for any changes to, or discontinuations of, all or any part of the Services.
3.2. While we do not currently charge a fee to users relating to their use of the Services, we reserve the right to charge a fee for all or part of the Services in the future. Any such fees would apply only to Services provided after the fee(s) were put into effect.
3.3. You agree that in connection with your use of the Services and any Interactions:
3.3.1.You will (a) comply with the Agreement, (b) comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, export control laws, tax laws, and regulatory requirements, (c) comply with all notices sent by us concerning the Services, and (d) act in a professional manner. In addition, in connection with your use of the Services, you consent to receiving email communications from the Company and/or other users as part of the functionality of the Services including, without limitation, relating to the coordination of any participation in interactions with other users.
3.3.2.You will not:
(a) Engage in any unprofessional behavior or activity;
(b) Misrepresent or conceal your identity;
(c) Submit or distribute any inappropriate, inaccurate, or objectionable content through the Services;
(d) Upload or submit any materials or information including, without limitation, email addresses, for which you do not have express consent to do so;
(e) Use the Services or any functionality of the Services to contact any individual without their prior written consent;
(f) Harass, abuse or harm another person, including sending unwelcomed communications to others;
(g) If you are an Organizer or other member of a group, only invite individuals to use the Services who are members of your group in good standing;
(h) Use the Services other than as permitted by the Agreement as part of the group of which you are a member and only if you were invited to do so;
(i) Upload or transmit any images other than your own personal head-shot photo as part of your own profile;
(j) Engage in any unlawful, libelous, abusive, obscene, discriminatory or otherwise objectionable behavior or activity;
(k) Infringe, violate or misappropriate any copyright, patent, trademark, trade secret, right of publicity, right of privacy or other intellectual property or proprietary right;
(l) Distribute or disclose information or materials that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships (such as insider information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(m) Distribute or promote any advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
(n) Distribute or upload any software viruses, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment of the Company, any users of the Services or any third parties;
(o) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services, or any part thereof;
(p) Duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, or otherwise transfer information found on or through the Services;
(q) Utilize or copy information, content or any data you view on or obtain from or through the Services to provide any service that is competitive, in our sole discretion, with the Services or any part thereof;
(r) Adapt, modify or create derivative works based on the Services or technology underlying the Services, or other users’ content, in whole or part;
(s) Sell, sponsor, or otherwise monetize the Services or any part thereof, without our prior written consent;
(t) Remove any copyright, trademark or other proprietary rights notices contained in or on the Services;
(u) Collect, use, copy, or transfer any information, including, but not limited to, personally identifiable information obtained from or through the Services except as permitted under the Agreement or as the owner of such information may permit;
(v) Attempt to or actually override any security component included in or underlying the Services; and/or
(w) Engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on the Services or the Services’ infrastructure, including, but not limited to, sending unsolicited communications to other users, attempting to gain unauthorized access to the Services, or transmitting or activating computer viruses through or on the Services.
SERVICES PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”; YOUR ASSUMPTION OF ALL RISK; LIMITATION OF LIABILITY.
5.1. THE SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. WE DO NOT PROVIDE ANY EXPRESS WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SERVICES OR ANYTHING ARISING OUT OF OR RELATING TO THE SERVICES. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE AND OUR SUPPLIERS DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, NONINFRINGEMENT, SECURITY, FREEDOM FROM VIRUSES, OR FREEDOM FROM UNAUTHORIZED ACCESS OR USE OF YOUR INFORMATION OR MATERIALS. WE MAKE NO WARRANTY OR REPRESENTATION THAT YOUR ACCESS TO OR USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR CONTINUE FOR ANY PERIOD OF TIME.
5.2. WE DO NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF, CONDUCT BACKGROUND CHECKS ON OR SCREEN ANY OF THE USERS OF THE SERVICES OR ANY INFORMATION PROVIDED BY SUCH USERS, NOR DO WE HAVE ANY OBLIGATION TO MONITOR THE USAGE OF THE SERVICES BY ANY USERS. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL INTERACTIONS THAT YOU MAY HAVE WITH OTHER INDIVIDUALS THROUGH THE SERVICES, AND THAT YOU WILL TAKE ALL PRECAUTIONS THAT YOU DEEM APPROPRIATE IN CONNECTION WITH ANY SUCH INTERACTIONS AND NO LESS THAN ALL REASONABLE PRECAUTIONS. YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK INCLUDING WITH RESPECT TO ANY LOSSES OR DAMAGES INCURRED OR SUFFERED BY YOU OR ANY THIRD PARTY.
5.3. FOR THE AVOIDANCE OF DOUBT, WE MAKE NO WARRANTY OR REPRESENTATION AS TO ANY THIRD PARTY INFORMATION, GOODS OR SERVICES THAT MAY BE PART OF, DISTRIBUTED THROUGH, LINKED TO, AVAILABLE AT, FROM OR THROUGH THE SERVICES OR ANY INTERACTIONS (AS APPLICABLE).
5.4. IN NO EVENT SHALL THE COMPANY, ITS SUBCONTRACTORS, OR ITS OR THEIR EMPLOYEES, SUBCONTRACTORS, OFFICERS, DIRECTORS, MANAGERS, AGENTS OR REPRESENTATIVES BE LIABLE FOR ANY LOST PROFITS, LOST REVENUE, LOSS OF GOODWILL, OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, IN EACH INSTANCE ARISING OUT OF OR RELATED IN ANY WAY TO THE AGREEMENT, THE USE OF THE SERVICES OR ANY INTERACTIONS. IF THE COMPANY OR ANY OF SUCH THIRD PARTIES IS FOUND TO BE LIABLE TO YOU ARISING OUT OF OR RELATED TO THE AGREEMENT, THE SERVICES OR THE INTERACTIONS, THE AGGREGATE AND CUMULATIVE LIABILITY OF THE COMPANY AND SUCH THIRD PARTIES SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE GREATER OF (A) THE AMOUNT OF FEES, IF ANY, YOU HAVE PAID US FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (B) US$100.
5.5. YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATING TO THE AGREEMENT, THE SERVICES OR THE INTERACTIONS MUST BE ASSERTED BY YOU WITHIN ONE (1) YEAR OF THE ACCRUAL OF SUCH CAUSE OF ACTION, OR SUCH CAUSE OF ACTION SHALL BE FOREVER BARRED AND, IF SO BARRED, YOU AGREE NOT TO ASSERT SUCH CAUSE OF ACTION THEREAFTER.
5.6. YOU AGREE AND ACKNOWLEDGE THAT THE DISCLAIMERS, LIMITATION ON DAMAGES, LIMITATION OF LIABILITY, LIMITATION ON ACTIONS AND RELATED PROVISIONS (COLLECTIVELY, THE “LIMITATIONS”) FORM AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN OF THE PARTIES, AND THAT THE COMPANY WOULD NOT HAVE ENTERED INTO THE AGREEMENT OR PROVIDED YOU WITH ACCESS TO THE SERVICES IN THE ABSENCE OF THE LIMITATIONS, OR WOULD HAVE DONE SO ON DIFFERENT TERMS AND CONDITIONS. YOU AGREE THAT THE LIMITATIONS SHALL APPLY EVEN IF THE COMPANY OR ANY THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY DAMAGES OR LOSSES OR IF SUCH DAMAGES OR LOSSES ARE OTHERWISE FORESEEABLE, AND REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION OR THEORY ASSERTED (E.G., WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND EMOTIONAL DISTRESS), STRICT LIABILITY OR OTHERWISE).
5.7. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE EXCLUSIONS OR LIMITATIONS CONTAINED IN THIS SECTION 5 MAY NOT APPLY TO YOU. YOU AGREE TO USE YOUR BEST EFFORTS TO PREVENT AND MITIGATE ANY DAMAGES OR LOSSES YOU OR ANY OTHER USERS OF THE SERVICES MAY SUFFER IN CONNECTION WITH ACCESS TO AND USE OF THE SERVICES.
6.1. Interactions may be initiated by you, an Organizer, another user or another individual. We do not supervise these Interactions and are not involved in any way with the actions of any individuals, organizations or businesses at or in connection with these Interactions. We have no control over the identity or actions of the individuals, organizations and businesses who initiate, participate in, attend or are otherwise involved with any Interactions. As a user of the Services, you agree to exercise caution and good judgment when using the Services, deciding whether or not to participate in any Interaction, attend any Interaction or interact with any individual, organization or business involved with, participating in or present at any Interaction.
6.2. Because we do not supervise or control Interactions, and because we are not involved in any way with physical transportation involving Interactions (if applicable) or with the actions of any individuals, organizations and businesses at Interactions, and because we have very limited control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of various aspects of the Services or information or materials provided to us by users or other third parties, you agree that you bear all risk and you agree to release us and our subcontractors (and our and their employees, subcontractors, officers, directors, managers, agents or representatives) and Organizers and their designees from claims, demands, causes of action, losses and damages (actual, consequential and otherwise) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, now and in the future, arising out of or in any way connected with your use of the Services, the Interactions, your attendance at and/or transportation to and from Interactions (as applicable), or the actions of you or other individuals, organizations and businesses at or as part of the Interactions. You further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver. You waive and relinquish all rights and benefits which you have or may have under Section 1542 of the Civil Code of the State of California or any similar provision of the statutory or non-statutory law of any other jurisdiction to the full extent that you may lawfully waive all such rights and benefits.
- Indemnification. You agree to indemnify and hold harmless the Company and its subcontractors (and our and their employees, subcontractors, officers, directors, managers, agents and representatives) for all damages, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees and costs) related to all third party claims, demands, charges and investigations caused by, arising out of or related to (a) your failure to comply with the Agreement; (b) your violation of applicable laws or third party rights including, but not limited to, intellectual property rights; (c) your breach of any representations, warranties, covenants or agreements in the Agreement; (d) your use of the Services and any activity in which you engage in connection with the Services including, but not limited to, any Interactions.
- Proprietary Rights and Certain Restrictions.
8.1. You agree that the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as consented to by us, you agree not to modify, rent, lease, loan, sell distribute or create derivative works based on our Services, in whole or in part. You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purpose all or any portion of, or access to, the Services. You agree not to use the Services for the benefit or promotion of any for-profit business or organization, or for the promotion or sale of any good or service.
8.2. “Spark Collaboration”, “SparkCollaboration.com” and our other trademarks, service marks, logos, products and service names, are trademarks of Trackmind Solutions, LLC (the “Spark Collaboration Marks”). Except as otherwise permitted by law, you agree not to display or use any of the Spark Collaboration Marks in any manner without our prior written consent.
- Claims Regarding Copyright Infringement, Notices of Copyright Infringement.
9.2. Please note that whether or not we disable access to or remove content, we may make a good faith attempt to forward the written notification, including the complainant’s contact information, to the user who posted the content and/or take other reasonable steps to notify the user that we have received notice of an alleged violation of third party copyrights. It is also our policy, in appropriate circumstances and in our discretion, to disable and/or terminate the accounts of users, or groups of users as the case may be, who infringe or repeatedly infringe the copyrights of others.
9.3. Please note that any notice you submit must be truthful and must be submitted under penalty of perjury. A false notice may give rise to personal liability. You may therefore want to seek the advice of legal counsel before submitting a notice.
9.4. Pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512), we have implemented procedures for receiving written notification of claimed infringements. We have also designated an agent to receive notices of claimed copyright infringement. If you believe in good faith that your copyright has been infringed, you may provide a written communication to us which contains:
9.4.1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
9.4.2. A description of the copyrighted work that you claim has been infringed;
9.4.3. A description specifying the location on our website of the material that you claim is infringing;
9.4.4. Your telephone number and e-mail address;
9.4.5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
9.4.6. A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
9.5. Please submit your notice to our Copyright Agent by mail as follows:
409 Joyce Kilmer Avenue, Suite 316
New Brunswick, NJ 08901
- Governing Law and Forum for Legal Disputes; Optional Arbitration.
10.1.Governing Law and Forum for Legal Disputes. The Agreement or any claim, cause of action or dispute (“claim”) arising out of or related to the Agreement and/or the Services shall be governed by the laws of the State of New Jersey regardless of your country of origin or where you access the Services, and notwithstanding any conflicts of law principles and the United Nations Convention on Contracts for the International Sale of Goods. You and the Company agree that all claims arising out of or related to the Agreement and/or the Services must be resolved exclusively by a state or federal court located in Middlesex County, New Jersey or Mercer County, New Jersey, except as otherwise agreed by the parties or as described in the Section 10.2 below (“Arbitration Option”). You and the Company agree to submit to the personal jurisdiction of the courts located within Middlesex County, New Jersey and Mercer County, New Jersey for the purpose of litigating all such claims. Notwithstanding the above, you agree that the Company shall still be allowed to apply for injunctive or equitable relief or remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
10.2.Arbitration Option. For any claim (excluding claims for injunctive or equitable relief or remedies) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction.
- Disclosures; Violations.
The Services are offered by Trackmind Solutions, LLC, 409 Joyce Kilmer Ave, Suite 316, New Brunswick, NJ 08901 USA. You agree to report any violations of the Agreement by notice to us pursuant to Section 12.1.
- Additional Terms.
12.1.Notices. We may provide notice to you of any matter relating to the Agreement through the Services (by posting on a web page, through an email or otherwise) or any reasonable method that we shall determine, and any such notice shall be deemed effective on our transmittal or display thereof. Any notice you provide to us must either be by registered mail or courier to SparkCollaboration.com Notice c/o Trackmind Solutions, LLC, 409 Joyce Kilmer Ave, Suite 316, New Brunswick, NJ 08901 USA, and shall be deemed effective upon our actual receipt and processing of such notice. Any notice by you not in compliance with the preceding sentence shall be deemed void and of no legal force and effect.
12.2.Severability. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision. If a court of competent jurisdiction finds a provision wholly invalid, illegal, void or unenforceable, such provision shall be deemed severed from the Agreement and the remaining provisions of the Agreement will not be affected in any way.
12.3.No Agency. No agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between you and the Company is intended or created by the Agreement.
12.4.No Waiver. Our failure to act or exercise any right we may have with respect to a breach of the Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches.
12.5.Assignment and Delegation. You may not assign or delegate your rights or obligations under the Agreement. Any purported assignment or delegation by you shall be void and of no force and effect. We may freely assign the Agreement, and assign or delegate our rights and obligations under the Agreement, fully or partially and at any time and from time to time, in our sole discretion and without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, Trackmind Solutions, LLC for any third party that assumes our rights and obligations under the Agreement.
12.6.Cumulative Rights and Remedies. All of our rights and remedies under the Agreement (including, without limitation, our termination rights) are cumulative to one another and to all other rights and remedies we have at law and in equity.
12.7.No Injunctive Relief. You agree not to seek, and agree that you are not entitled to, rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Services, or any content or materials contained, displayed or distributed on, as part of or through the Services.
12.8.Export Control. Your use of the Services is subject to export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce and sanctions programs maintained by the Treasury Department’s Office of Foreign Assets Control. You shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Services or any materials or any information from or relating to the Services to any end-user without obtaining the required authorizations from the appropriate government authorities. You also warrant and represent that you are not prohibited from receiving United States origin goods or services including, without limitation, the Services.