Last Modified on 14th April 2018
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
You must agree to this ToU in order to use the Service. BY AGREEING TO THESE TERMS (INCLUDING BY A CLICK-THROUGH OR OTHER AGREEMENT), YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS TOU AND AGREE TO ALL OF ITS RESPECTIVE TERMS AND CONDITIONS. Also, by agreeing to this ToU (including by a click-through or other agreement), you are waiving, to the extent permitted under applicable law, any rights or legal requirements that require an original (non-electronic) signature or the delivery or retention of non-electronic records in order for a contract to be legally binding. If you use any aspect of the Service or click to accept or agree to this ToU if presented to you in a user interface on the Site, we will understand this as your acceptance of this ToU and your agreement to all of its terms and conditions. By accepting this ToU or using any aspect of the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not accept this ToU, then you may not use any aspect of the Service.
BY ACCEPTING THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. With limited exceptions, YOU AGREE TO WAIVE YOUR RIGHT TO GO TO COURT and that all disputes between you and Datasparc arising out of or relating to this ToU or any aspect of the Service will be resolved by BINDING ARBITRATION. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please see the section below entitled “Binding Arbitration” for more details regarding your obligation to resolve any disputes in arbitration.
1. ToU Updates. Datasparc may update this ToU at any time, and Datasparc will post the updated version of this ToU on the Site. You understand and agree that you will be deemed to have accepted the updated ToU if you use any aspect of the Service after the updated ToU is posted. If at any point you do not agree to any portion of this ToU then in effect, you must immediately stop using the Service. If Datasparc makes any material change to this ToU, we will make reasonable efforts to notify you of the change, such as by sending an email to any address you used to register for an account. Disputes arising under this ToU will be resolved in accordance with the version of the ToU in place at the time the dispute arose. We encourage you to review this ToU frequently to stay informed of the latest modifications.
2.Provision of the Service. You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the Service. You acknowledge and agree that Datasparc may make changes to any aspect of the Service at any time without notifying you in advance.
3.Termination of Service. Datasparc reserves the right to deny service to any person or entity at Datasparc’s sole and absolute discretion. You acknowledge and agree that Datasparc may stop providing any aspect of the Service or restrict your use of the Service at any time, without notifying you in advance, for any reason or no reason, including, without limitation, for any violation of this ToU or if Datasparc suspects that you have used any aspect of the Service to conduct any fraudulent or illegal activity. If Datasparc disables your access to your account, you may be prevented from accessing the Service, your account details or any materials contained in your account.
4. Accounts and Security.
4.1. Account. You do not need to create an account to visit the Site, but you must have an account to access and utilize certain aspects of the Service. You can create an account by completing the registration process. You may be required to provide information about yourself as part of the registration process or your continued use of the Service. You agree that any registration information that you submit to Datasparc will be correct, accurate and up to date.
4.3. Account Sharing or Transfers. Accounts are registered to you personally and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances. You may not share your account with, or disclose your password to, anyone else.
4.4. Cancellation by You. You have the right to cancel your account at any time. You may cancel your account by contacting us via email at [email protected] or by following the cancellation link on the Site.
4.5.Termination by Datasparc. Datasparc may at any time terminate your account if:
a. Datasparc determines that you are (i) in breach of or otherwise acting inconsistently with this ToU or (ii) engaging in fraudulent or illegal activities or other conduct that may result in liability to Datasparc;
b. Datasparc determines it is required by law to terminate your account; or
c. Datasparc decides to stop providing the Service or critical portions of the Service.
4.6. Effect of Account Termination or Cancellation. If you voluntarily terminate your account, you may reactivate that account at any time by logging in to the Service through the Site and reactivating the account. Accounts terminated by Datasparc for any type of abuse including, without limitation, a violation of this ToU, may not be reactivated for any reason.
5. Restrictions and Conditions of Use.
5.1. Use of the Service. Subject to the terms and conditions of this ToU, Datasparc hereby grants you a limited, non-exclusive, personal, non-sublicensable, non-assignable license to use the Service solely in accordance with this ToU and any rules, restrictions or documentation set forth by Datasparc from time to time. Datasparc reserves all rights not expressly granted to you. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, materials, data or services obtained from the Service. Datasparc reserves the right to add or remove information, content or Services from the Site at any time at its sole discretion.
5.2.Updates. You acknowledge and agree that Datasparc may update the Service from time to time with or without notifying you, and may add or remove features or functions to the Service at any time in its sole discretion. You acknowledge and agree that Datasparc has no obligation to make the Service available to you, make any subsequent versions of the Site available to you or to continue to support the Service in any way. You acknowledge that your access to the Service may not be continuous, features may change during your use of the Service, and Datasparc may terminate your access to the Service or stop offering the Service at any time.
5.3. Accessing the Service. You agree not to access, or attempt to access, the Service by any means other than through the user interface provided through the Site. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers) and you agree to comply with the instructions contained in any robots.txt file present on the Service.
5.4.No Violation of Laws. You agree that you will not, in connection with your use of the Service, violate any applicable law, ordinance, rule, regulation or treaty. Without limiting the foregoing, you agree that you will not make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
5.5. Use Restrictions. You may not connect to or use the Service in any way that is not expressly permitted by this ToU.
a. Without limiting the generality of the foregoing, you agree that you will not: (i) remove any proprietary notices from the Service; (ii) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service; (iii) sell, assign, rent, lease, act as a service bureau, or grant rights in the Service, including, without limitation, through sublicense, to any other person or entity without the prior written consent of Datasparc; or (iv) make any false, misleading or deceptive statement or representation regarding Datasparc or the Service.
b. Without limiting the generality of the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Service (or any servers, systems or networks connected to the Service) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Service or any other person’s or entity’s use of the Service (or any servers, systems or networks connected to the Service); (ii) attempt to gain unauthorized access to the Site, the Service, accounts registered to other users, or any servers, systems or networks connected to the Service; (iii) use the Service for any commercial purpose unless consistent with this ToU and the intended use of the same, or for the benefit of any third party, or charge any person or entity, or receive any compensation for, the use of the Service, unless you are specifically authorized to do so in a separate written agreement with Datasparc; (iv) use the Service to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; (iv) use the Service to perform any unsolicited commercial communication not permitted by applicable law; or (v) use the Service to engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.
c. Without limiting the generality of the foregoing, you agree that you will not use the Service for any other unlawful, prohibited, abnormal or unusual activity as determined by Datasparc in its sole discretion.
5.6. No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service including, without limitation, email addresses or phone numbers of other account holders or other data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, any aspect of the Service.
5.7. Violation of this ToU. You acknowledge and agree that you are solely responsible, and Datasparc has no responsibility or liability to you or any other person or entity, for any breach by you of this ToU or for the consequences of any such breach. Datasparc may at its option, terminate its relationship with you, or may suspend your account immediately if it determines you are using the Service contrary to the restrictions found in this Section 5 or any other terms of this ToU.
6.1.Links from the Service. The Service may contain links to websites operated by independent third parties. Datasparc provides these links to other websites as a convenience and use of these websites is at your own risk. The linked websites are not under the control of Datasparc and Datasparc is not responsible for the content available on the other websites or services. Such links do not imply Datasparc’s endorsement of information or material on any other website and Datasparc disclaims all liability with regard to your access to and use of such linked websites. You understand and acknowledge that your access and use of linked websites and the services provided through these websites is governed by the terms of service and other agreements posted on such websites.
6.2.Links to the Service. Unless otherwise set forth in a written agreement between you and Datasparc, you must adhere to Datasparc’s linking policy as follows: (a) the appearance, position and other aspects of any link to the Service may not be such as to damage or dilute the goodwill associated with Datasparc’s or its licensors’ names and trademarks; (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Datasparc; and (c) when selected by a User, the link to the Site must display the Site on full-screen and not within a “frame” on the linking website. Datasparc reserves the right to revoke its consent to the link at any time and in its sole discretion.
7. Intellectual Property.
7.1.Trademarks. The Datasparc name and logo are trademarks and service marks of Datasparc. Unless permitted in a separate written agreement with Datasparc, you do not have the right to use any of Datasparc’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
7.2. Ownership. You acknowledge and agree that Datasparc, or its licensors, owns all right, title and interest in and to the Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Service is protected by U.S. and international copyright laws. Further, you acknowledge that the Service may contain information that Datasparc has designated as confidential and you agree not to disclose such information without Datasparc’s prior written consent.
9. Location. The Service is operated by Datasparc in the United States. If you choose to access the Service from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws.
10. Children. The Service is not directed toward children under 13 years of age, and Datasparc does not knowingly collect information from children under the age of 13 or allow them to create an account or access account features. If you are under the age of 13, please do not submit any personal information about yourself to Datasparc.
11. Disclaimer of Warranties.
11.1. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
11.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATASPARC EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
11.3. DATASPARC MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SERVICE.
11.4. DATASPARC DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE SERVICE WILL BE CORRECTED; OR (e) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
11.5. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
12. Limitation of Liability; SOLE AND EXCLUSIVE REMEDY.
12.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATASPARC AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) SHALL NOT BE LIABLE TO YOU UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR:
a. ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE, EVEN IF DATASPARC OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;
b. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR
c. THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE SERVICE.
12.2. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF DATASPARC OR ANY OF THE RELATED PARTIES EXCEED ONE HUNDRED DOLLARS ($100).
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Datasparc and the Related Parties shall be limited to the fullest extent permitted by law.
13. Indemnification. You agree to defend, indemnify and hold Datasparc and the Related Parties harmless from and against any and all claims, demands, liabilities damages and losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (a) your use of the Service or (b) your breach of this ToU or any other policies that Datasparc may issue for the Service from time to time. You further agree to cooperate as required by Bestow in the defense of any claim. Bestow reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Bestow.
14. Governing Law; Jurisdiction. This ToU is governed by California law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and Datasparc agree that, except as otherwise provided in Section 15 below, the state and federal courts located in the County of San Diego, California will have exclusive jurisdiction of all disputes arising out of or related to this ToU or your use of the Service and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, Datasparc shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
15. Binding Arbitration.
15.1. Arbitration Procedures. You and Datasparc agree that, except as provided in Section 15.4 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 15 and the JAMS Rules, the terms in this Section 15 will control and prevail.
Except as otherwise set forth in Section 15.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and Datasparc will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (a) you and Datasparc may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
15.2. Location. The arbitration will take place in San Diego, California, unless the parties agree to video, phone or internet connection appearances.
15.3. Limitations. You and Datasparc agree that any arbitration shall be limited to the Claim between Datasparc and you individually. YOU AND DATASPARC AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
15.4. Exceptions to Arbitration. You and Datasparc agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of Datasparc’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
15.5. Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
15.6. Severability. You and Datasparc agree that if any portion of this Section 15 is found illegal or unenforceable (except any portion of Section 15.4), that portion shall be severed and the remainder of the section shall be given full force and effect. If Section 15.4 is found to be illegal or unenforceable then neither you nor Datasparc will elect to arbitrate any Claim falling within that portion of Section 15.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the San Diego County, California, United States of America, and you and Datasparc agree to submit to the personal jurisdiction of that court.
15.7. Survival. This Section 15 shall survive any termination of your relationship with Datasparc.
16.1. ToU Revisions. This ToU may only be revised in a writing signed by Datasparc or published by Datasparc on the Site.
16.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Datasparc as a result of this ToU or your use of the Service.
16.3. Assignment. Datasparc may assign its rights under this ToU to any person or entity without your consent. The rights granted to you under this ToU may not be assigned without Datasparc’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
16.4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
16.5. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, except as otherwise provided in Section 15.5, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
16.6. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by Datasparc of any provision, condition or requirement of this ToU shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
16.7. Notices. All notices given by you or required under this ToU shall be in writing and sent to [email protected]
16.8. Export Administration. You must comply with all export laws and regulations of the United States or any other country (“Export Controls”) and you shall not export, direct or transfer any portion of the Service, or any direct product thereof, to any destination, person or entity restricted or prohibited by applicable Export Controls.
16.9. U.S. Government Rights. If you are, or are entering into this ToU on behalf of, any agency or instrumentality of the United States Government, all software provided by Datasparc is “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable.
16.10. Equitable Remedies. You acknowledge and agree that Datasparc would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
16.11. Entire Agreement. This ToU, including the documents referenced in this ToU, constitutes the entire agreement between you and Datasparc with respect to the Service and supersedes any and all prior agreements between you and Datasparc relating to the Service.