Spark Shipping Terms Of Service
TERMS OF SERVICE AGREEMENT
USING OUR SITES AND OUR SERVICES, YOU HEREBY AGREE TO BE BOUND BY THE TERMS AND
ALL TERMS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT EXPRESSLY AGREE TO
ALL OF THE TERMS AND CONDITIONS, THEN PLEASE DO NOT ACCESS OR USE OUR SITES OR
OUR SERVICES. THIS TERMS OF SERVICE AGREEMENT IS EFFECTIVE AS OF 01/01/2015.
The following Terms of Service Agreement (the "TOS") is a legally binding agreement that shall govern the relationship between Sparkwire Solutions Inc. DBA Spark Shipping, also known as Spark Shipping, located at 53 State St. 5th Floor (5E), Boston, Massachusetts 02109 and our subsidiaries and affiliates (“Spark Shipping” or “us” or “we”), and our users and others which may interact or interface with Spark Shipping (“users” or “you”), in connection with the use of the Spark Shipping website, which includes sparkshipping.com (the "Site") and its Services, which shall be defined below.
The Site is a software as a service website providing automation services for ecommerce websites. The “Services” shall include all products, software and services available on the Site.
Any and all visitors to our site , whether registered or not, shall be deemed as "users" of the herein contained Services provided for the purpose of this TOS. Once an individual registers for our Services, through the process of creating an account, the user shall then be considered a "member."
Subject to the terms and conditions of the TOS, including without limitation your payment of all of the fees due hereunder, Spark Shipping will provide you with access to the Service, to be delivered via the Site during the term of the TOS. You may use the Service solely for its intended purpose in accordance with the TOS.
Spark Shipping is a month-to-month, pay-as-you-go service so we don’t provide refunds.
You are billed every 30 days for the service, regardless of usage.
You can cancel the service at any time and you won’t be charged again, but you are responsible for any charges already incurred.
You can cancel your account any time by going to your Spark Shipping profile page.
Note - Cancellation of an account must be done by going to your profile page. The Spark Shipping support team is unable to cancel your account for you.
[You shall pay Spark Shipping for use of the Services in accordance with the pricing set forth on [ ], as may be updated from time to time. YOU AUTHORIZE SPARK SHIPPING TO CHARGE YOUR CREDIT CARD OR OTHER PAYMENT METHOD IN ACCORDANCE WITH THIS AGREEMENT, REPRESENTS THAT YOU HAVE THE RIGHTS TO AUTHORIZE SUCH CHARGES AND PAYMENTS, AND SHALL BE RESPONSIBLE FOR PAYMENT IN THE EVENT THAT THE PAYMENT METHOD IS DECLINED, EXPIRED OR DISCONTINUED. All fees are non-refundable (irrespective of actual usage), and are due and payable in U.S. dollars via the mechanisms made available within the Service (e.g. credit card, PayPal, etc.). Unless otherwise agreed, fees are due in advance for the applicable period. ]
You shall pay, indemnify and hold Spark Shipping harmless from all sales, use, value added or other taxes of any nature, other than personal property or taxes on or measured by our net or gross income, including penalties and interest, and all government permit or license fees assessed upon or with respect to any fees.
You must inform us of any billing problems or discrepancies within 90 days after they first appear on your account statement. If you do not bring them to our attention within 90 days, you agree that you waive your right to dispute such problems or discrepancies. Additionally, if any charges are being collected by us on behalf of a supplier, then such supplier shall be an express third party beneficiary of this provision. If your account is delinquent, we may, at our sole discretion, suspend or cancel your account (and accordingly your use of the Service). If your account is suspended, regular charges will continue to accrue until you cancel your account.
The user and/or member acknowledges and agrees that the Services provided and made available through our website and applications, which may include some mobile applications (and that those applications may be made available on various social media networking sites and numerous other platforms and downloadable programs) are the sole property of Spark Shipping or its suppliers and that Spark Shipping owns all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Product (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
UPDATES AND ADDITIONAL SERVICES
At its discretion, Spark Shipping may offer additional website Services and/or products, or update, modify or revise any current content and Services, and this Agreement shall apply to any and all additional Services and/or products and any and all updated, modified or revised Services unless otherwise stipulated. Spark Shipping does hereby reserve the right to cancel and cease offering any of the aforementioned Services and/or products. You, as the end user and/or member , acknowledge, accept and agree that Spark Shipping shall not be held liable for any such updates, modifications, revisions, suspensions or discontinuance of any of our Services and/or products. Your continued use of the Services provided, after such posting of any updates, changes, and/or modifications shall constitute your acceptance of such updates, changes and/or modifications, and as such, frequent review of this Agreement and any and all applicable terms and policies should be made by you to ensure you are aware of all terms and policies currently in effect. Should you not agree to the updated, modified, revised or modified terms, you must stop using the provided Services.
We reserve the right at any time we may deem fit, to modify, alter and or discontinue, whether temporarily or permanently, our service, or any part thereof, with or without prior notice. In addition, we shall not be held liable to you or to any third party for any such alteration, modification, suspension and/or discontinuance of our Services, or any part thereof.
To register and become a "member" of the Site, you must be 18 years of age and possess the legal right to enter into and form a legally binding contract. In addition, you must be in good standing and not an individual that has been previously barred from receiving Spark Shipping's Services under the laws and statutes of the United States or other applicable jurisdiction.
Furthermore, the registering party hereby acknowledges, understands and agrees to:
a) furnish factual, correct, current and complete information with regards to yourself as may be requested by the data registration process, and
b) maintain and promptly update your registration and profile information in an effort to maintain accuracy and completeness at all times.
If anyone knowingly provides any information of a false, untrue, inaccurate or incomplete nature, Spark Shipping will have sufficient grounds and rights to suspend or terminate the member in violation of this aspect of the Agreement, and as such refuse any and all current or future use of Spark Shipping Services, or any portion thereof.
[It is Spark Shipping's priority to ensure the safety and privacy of all its visitors, users and members, especially that of children. Therefore, it is for this reason that the parents of any child under the age of 13 that permit their child or children access to the Spark Shipping website platform Services must create a "family" account, which will certify that the individual creating the "family" account is of 18 years of age and as such, the parent or legal guardian of any child or children registered under the "family" account. As the creator of the "family" account, s/he is thereby granting permission for his/her child or children to access the various Services provided, including, but not limited to, message boards, email, and/or instant messaging. It is the parent's and/or legal guardian's responsibility to determine whether any of the Services and/or content provided are age-appropriate for his/her child.]
MEMBER ACCOUNT, USERNAME, PASSWORD AND SECURITY
After completion of the registration data and creation of your username, you will receive a random password—which you can later change—and account designation. You shall be responsible for maintaining the secrecy and confidentiality of your password and for all activities that transpire on or within your account. It shall be your responsibility to notify Spark Shipping immediately if you notice any unauthorized access or use of your account or password or any other breach of security. Spark Shipping shall not be held liable for any loss and/or damage arising from any failure to comply with this term and/or condition of the TOS.
RESTRICTIONS ON METHOD OF ACCESS
You promise not to access (or attempt to access) the Services by any means other than through the interface(s) that are provided by us. Without limiting the generality of the foregoing, you specifically promise not to access (or attempt to access) any of the Services through any automated means (including use of scripts or crawlers) other than customary indexing of content by search engines. Similarly, you promise that you will not provide any third party access to material on the Services (or facilitate their attempt to access) by any means other than through the interface that is provided by us.
As a member of the Site, you herein acknowledge, understand and agree that all information, text, software, data, photographs, music, video, messages, tags or any other content, whether it is publicly or privately posted and/or transmitted, is the sole responsibility of the individual from whom the content originated. You are solely responsible for any and all content posted, uploaded, emailed, transmitted or otherwise made available by you on the Site, and as such, we do not guarantee the accuracy, integrity or quality of such content. It is expressly understood that by use of our Services, you may be exposed to content including, but not limited to, any errors or omissions in any content posted, and/or any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted or otherwise made available by Spark Shipping.
Furthermore, you herein agree not to make use of Spark Shipping's Services for the purpose of:
a) uploading, posting, emailing, transmitting, or otherwise making available any content that shall be deemed unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or invasive of another's privacy or which is hateful, and/or racially, ethnically, or otherwise objectionable;
b) causing harm to minors in any manner whatsoever;
c) impersonating any individual or entity, including, but not limited to, any Spark Shipping officials, forum leaders, guides or hosts or falsely stating or otherwise misrepresenting any affiliation with an individual or entity;
d) forging captions, headings or titles or otherwise offering any content that you personally have no right to pursuant to any law nor having any contractual or fiduciary relationship with;
e) uploading, posting, emailing, transmitting or otherwise offering any such content that may infringe upon any patent, copyright, trademark, or any other proprietary or intellectual rights of any other party;
f) uploading, posting, emailing, transmitting or otherwise offering any content that you do not personally have any right to offer pursuant to any law or in accordance with any contractual or fiduciary relationship;
g) uploading, posting, emailing, transmitting, or otherwise offering any unsolicited or unauthorized advertising, promotional flyers, "junk mail," "spam," or any other form of solicitation, except in any such areas that may have been designated for such purpose;
h) uploading, posting, emailing, transmitting, or otherwise offering any source that may contain a software virus or other computer code, any files and/or programs which have been designed to interfere, destroy and/or limit the operation of any computer software, hardware, or telecommunication equipment;
i) disrupting the normal flow of communication, or otherwise acting in any manner that would negatively affect other users' ability to participate in any real time interactions;
j) interfering with or disrupting any Spark Shipping Services, servers and/or networks that may be connected or related to our website, including, but not limited to, the use of any device software and/or routine to bypass the robot exclusion headers;
k) intentionally or unintentionally violating any local, state, federal, national or international law, including, but not limited to, rules, guidelines, and/or regulations decreed by the U.S. Securities and Exchange Commission, in addition to any rules of any nation or other securities exchange, that would include without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law;
l) providing informational support or resources, concealing and/or disguising the character, location, and or source to any organization delegated by the United States government as a "foreign terrorist organization" in accordance to Section 219 of the Immigration Nationality Act;
m) "stalking" or with the intent to otherwise harass another individual; and/or
n) collecting or storing of any personal data relating to any other member or user in connection with the prohibited conduct and/or activities which have been set forth in the aforementioned paragraphs.
Spark Shipping herein reserves the right to pre-screen, refuse and/or delete any content currently available through our Services. In addition, we reserve the right to remove and/or delete any such content that would violate the TOS or which would otherwise be considered offensive to other visitors, users and/or members.
Spark Shipping herein reserves the right to access, preserve and/or disclose member account information and/or content if it is requested to do so by law or in good faith belief that any such action is deemed reasonably necessary for:
a) compliance with any legal process;
b) enforcement of the TOS;
c) responding to any claim that therein contained content is in violation of the rights of any third party;
d) responding to requests for customer service; or
e) protecting the rights, property or the personal safety of Spark Shipping, its visitors, users and members, including the general public.
Spark Shipping herein reserves the right to include the use of security components that may permit digital information or material to be protected, and that such use of information and/or material is subject to usage guidelines and regulations established by Spark Shipping or any other content providers supplying content services to Spark Shipping. You are hereby prohibited from making any attempt to override or circumvent any of the embedded usage rules in our Services. Furthermore, unauthorized reproduction, publication, distribution, or exhibition of any information or materials supplied by our Services, despite whether done so in whole or in part, is expressly prohibited.
USE AND EXPORT AND IMPORT COMPLIANCE
You hereby agree to use the Services only for purposes permitted by the TOS and in accordance with all applicable federal, foreign, state and local rules relating to online conduct and that which is considered acceptable content. Uploading, posting and/or transferring of software, technology and other technical data may be subject to the export and import laws of the United States and possibly other countries. Through the use of our network, you thus agree to comply with all applicable export and import laws, statutes and regulations, including, but not limited to, the Export Administration Regulations (http://www.access.gpo.gov/bis/ear/ear_data.html), as well as the sanctions control program of the United States (http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx). Furthermore, you hereby represent, state and pledge that you:
a) are not on the list of prohibited individuals which may be identified on any government export exclusion report (http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm) nor a member of any other government which may be part of an export-prohibited country identified in applicable export and import laws and regulations;
b) agree not to transfer any software, technology or any other technical data through the use of our network Services to any export-prohibited country;
c) agree not to use our website network Services for any military, nuclear, missile, chemical or biological weaponry end uses that would be a violation of the U.S. export laws; and
d) agree not to post, transfer nor upload any software, technology or any other technical data which would be in violation of the U.S. or other applicable export and/or import laws.
CONTENT PLACED OR MADE AVAILABLE FOR COMPANY SERVICES
Spark Shipping shall not lay claim to ownership of any content submitted by any visitor, member or user, or make such content available for inclusion on our website Services. Therefore, you hereby grant and allow for Spark Shipping the below listed worldwide, royalty-free and non-exclusive licenses, as applicable:
a) The content submitted or made available for inclusion on the publicly accessible areas of Spark Shipping's sites, the license provided to permit to use, distribute, reproduce, modify, adapt, publicly perform and/or publicly display said content on our network Services is for the sole purpose of providing and promoting the specific area to which this content was placed and/or made available for viewing. This license shall be available so long as you are a member of Spark Shipping's sites, and shall terminate at such time when you elect to discontinue your membership.
b) Photos, audio, video and/or graphics submitted or made available for inclusion on the publicly accessible areas of Spark Shipping's sites, the license provided to permit to use, distribute, reproduce, modify, adapt, publicly perform and/or publicly display said content on our network Services are for the sole purpose of providing and promoting the specific area in which this content was placed and/or made available for viewing. This license shall be available so long as you are a member of Spark Shipping's sites and shall terminate at such time when you elect to discontinue your membership.
c) For any other content submitted or made available for inclusion on the publicly accessible areas of Spark Shipping's sites, the continuous, binding and completely sub-licensable license which is meant to permit to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and/or publicly display said content, whether in whole or in part, and the incorporation of any such content into other works in any arrangement or medium current used or later developed.
Those areas which may be deemed "publicly accessible" areas of Spark Shipping's sites are those such areas of our network properties which are meant to be available to the general public, and which would include message boards and groups that are openly available to both visitors and members . However, those areas which are not open to the public, and thus available to members only, would include our mail system and instant messaging .
CONTRIBUTIONS TO COMPANY WEBSITE
Spark Shipping provides for our users and members to contribute feedback to our website. When you submit ideas, documents, details about vendor API/integration, suggestions and/or proposals ("Contributions") to our site, you acknowledge and agree that:
a) your Contributions do not contain any type of confidential or proprietary information and do not infringe on the intellectual property rights of any party;
b) Spark Shipping shall not be liable or under any obligation to ensure or maintain confidentiality, expressed or implied, related to any Contributions;
c) Spark Shipping shall be entitled to make use of and/or disclose any such Contributions in any such manner as they may see fit;
d) the contributor's Contributions shall automatically become the sole property of Spark Shipping; and
e) Spark Shipping is under no obligation to either compensate or provide any form of reimbursement in any manner or nature to you or any third party.
All users and/or members herein agree to indemnify and hold Spark Shipping, our subsidiaries, affiliates, agents, employees, officers, partners and/or licensors blameless or not liable for any claim or demand, which may include, but is not limited to, loss of revenue or monies owe to any business, and/or reasonable attorney fees made by any third party, which may arise from (i) any content a member or user of our site may submit, post, modify, transmit or otherwise make available through our Services (ii) the use of Spark Shipping Services (including, but not limited to inventory management and order fulfillment) or your connection with these Services (iii) unauthorized use of the Services or use or disclosure of any confidential information by you, (iv) your violation of any applicable law or (v) your violations of the Terms of Service and/or your violation of any such rights of another person.
COMMERCIAL REUSE OF SERVICES
The member or user herein agrees not to replicate, duplicate, copy, trade, sell, resell nor exploit for any commercial reason any part, use of, or access to Spark Shipping's sites.
USE AND STORAGE GENERAL PRACTICES
You herein acknowledge that Spark Shipping may set up any such practices and/or limits regarding the use of our Services, without limitation of the maximum number of days that any email, message posting or any other uploaded content shall be retained by Spark Shipping, nor the maximum number of email messages that may be sent and/or received by any member, the maximum volume or size of any email message that may be sent from or may be received by an account on our Service, the maximum disk space allowable that shall be allocated on Spark Shipping's servers on the member's behalf, and/or the maximum number of times and/or duration that any member may access our Services in a given period of time. In addition, you also agree that Spark Shipping has absolutely no responsibility or liability for the removal or failure to maintain storage of any messages and/or other communications or content maintained or transmitted by our Services. You also herein acknowledge that we reserve the right to delete or remove any account that is no longer active for an extended period of time. Furthermore, Spark Shipping shall reserve the right to modify, alter and/or update these general practices and limits at our discretion.
As a member of sparkshipping.com, you may cancel or terminate your account, associated email address and/or access to our Services by submitting a cancellation or termination request to firstname.lastname@example.org. Processing this request may take up to 7 days.
As a member, you agree that Spark Shipping may, without any prior written notice, immediately suspend, terminate, discontinue and/or limit your account, any email associated with your account, and access to any of our Services. The cause for such termination, discontinuance, suspension and/or limitation of access shall include, but is not limited to:
a) any breach or violation of our TOS or any other incorporated agreement, regulation and/or guideline;
b) by way of requests from law enforcement or any other governmental agencies;
c) the discontinuance, alteration and/or material modification to our Services, or any part thereof;
d) unexpected technical or security issues and/or problems;
e) any extended periods of inactivity;
f) any engagement by you in any fraudulent or illegal activities; and/or
g) the nonpayment of any associated fees that may be owed by you in connection with your sparkshipping.com account Services.
Furthermore, you herein agree that any and all terminations, suspensions, discontinuances, and or limitations of access for cause shall be made at our sole discretion and that we shall not be liable to you or any other third party with regards to the termination of your account, associated email address and/or access to any of our Services.
The termination of your account with sparkshipping.com shall include any and/or all of the following:
a) the removal of any access to all or part of the Services offered within sparkshipping.com;
b) the deletion of your password and any and all related information, files, and any such content that may be associated with or inside your account, or any part thereof; and
c) the barring of any further use of all or part of our Services.
Any correspondence or business dealings with, or the participation in any promotions of, advertisers located on or through our Services, which may include the payment and/or delivery of such related goods and/or Services, and any such other term, condition, warranty and/or representation associated with such dealings, are and shall be solely between you and any such advertiser. Moreover, you herein agree that Spark Shipping shall not be held responsible or liable for any loss or damage of any nature or manner incurred as a direct result of any such dealings or as a result of the presence of such advertisers on our website.
Either Spark Shipping or any third parties may provide links to other websites and/or resources. Thus, you acknowledge and agree that we are not responsible for the availability of any such external sites or resources, and as such, we do not endorse nor are we responsible or liable for any content, products, advertising or any other materials, on or available from such third party sites or resources. Furthermore, you acknowledge and agree that Spark Shipping shall not be responsible or liable, directly or indirectly, for any such damage or loss which may be a result of, caused or allegedly to be caused by or in connection with the use of or the reliance on any such content, goods or Services made available on or through any such site or resource.
You do hereby acknowledge and agree that Spark Shipping's Services and any essential software that may be used in connection with our Services ("Software") shall contain proprietary and confidential material that is protected by applicable intellectual property rights and other laws. Furthermore, you herein acknowledge and agree that any content which may be contained in any advertisements or information presented by and through our Services or by advertisers is protected by copyrights, trademarks, patents or other proprietary rights and laws. Therefore, except for that which is expressly permitted by applicable law or as authorized in writing by Spark Shipping or such applicable licensor, you agree not to alter, modify, lease, rent, loan, sell, distribute, transmit, broadcast, publicly perform and/or created any plagiaristic works which are based on Spark Shipping Services (e.g. content or Software), in whole or part.
In general, the Services are provided in a manner which does not result in your downloading or using any of our software (“Software”). In the event that we do, however, provide you with Software (such as a plug-in or similar item), we grant you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on the single computer to which it is provided in connection with your access to the Services; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software.
You may not modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Services. You may not rent, lease, loan, sell, distribute or create derivative works based on the Software, in whole or in part.
Certain portions of the website contain proprietary arrangements and content which you agree not to share publicly without our consent. This means among other things you may not provide copies of screen shots to third parties without our consent. Providing screen shots to us for help, maintenance and error correction purposes is, of course, not restricted.
YOU HEREIN EXPRESSLY ACKNOWLEDGE AND AGREE THAT:
a) THE USE OF SPARK SHIPPING SERVICES AND SOFTWARE ARE AT THE SOLE RISK BY YOU. OUR SERVICES AND SOFTWARE SHALL BE PROVIDED ON AN "AS IS" AND/OR "AS AVAILABLE" BASIS. SPARK SHIPPING AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b) SPARK SHIPPING AND OUR SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICESNSORS MAKE NO SUCH WARRANTIES THAT (i) SPARK SHIPPING SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS; (ii) SPARK SHIPPING SERVICES OR SOFTWARE SHALL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THAT SUCH RESULTS WHICH MAY BE OBTAINED FROM THE USE OF THE SPARK SHIPPING SERVICES OR SOFTWARE WILL BE ACCURATE OR RELIABLE; (iv) QUALITY OF ANY PRODUCTS, SERVICES, ANY INFORMATION OR OTHER MATERIAL WHICH MAY BE PURCHASED OR OBTAINED BY YOU THROUGH OUR SERVICES OR SOFTWARE WILL MEET YOUR EXPECTATIONS; AND (v) THAT ANY SUCH ERRORS CONTAINED IN THE SOFTWARE SHALL BE CORRECTED.
c) ANY INFORMATION OR MATERIAL DOWNLOADED OR OTHERWISE OBTAIN BY WAY OF SPARK SHIPPING SERVICES OR SOFTWARE SHALL BE ACCESSED AT YOUR SOLE DISCRETION AND SOLE RISK, AND AS SUCH YOU SHALL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER AND/OR INTERNET ACCESS, DOWNLOADING AND/OR DISPLAYING, OR FOR ANY LOSS OF DATA THAT COULD RESULT FROM THE DOWNLOAD OF ANY SUCH INFORMATION OR MATERIAL.
d) NO ADVICE AND/OR INFORMATION, WHETHER WRITTEN OR ORAL, THAT MAY BE OBTAINED BY YOU FROM SPARK SHIPPING OR BY WAY OF OR FROM OUR SERVICES OR SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
LIMITATION OF LIABILITY
YOU EXPLICITY ACKNOWLEDGE, UNDERSTAND AND AGREE THAT SPARK SHIPPING AND OUR SUBISDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTIAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES WHICH MAY BE RELATED TO THE LOSS OF ANY PROFITS, GOODWILL, USE, DATA AND/OR OTHER INTANGIBLE LOSSES. IN NO EVENT SHALL SPARK SHIPPING’S TOTAL COLLECTIVE LIABILITY FOR ALL CLAIMS UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH THEY ARE ADVANCED, EXCEED THE AGGREGATE FEES PAID BY YOU UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE CLAIM.
THIRD PARTY BENEFICIARIES
You herein acknowledge, understand and agree, unless otherwise expressly provided in this TOS, that there shall be no third-party beneficiaries to this agreement.
Spark Shipping may furnish you with notices, including those with regards to any changes to the TOS, including but not limited to email, regular mail, MMS or SMS, text messaging, postings on our website Services, or other reasonable means currently known or any which may be herein after developed. Any such notices may not be received if you violate any aspects of the TOS by accessing our Services in an unauthorized manner. Your acceptance of this TOS constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed our Services in an authorized manner.
You herein acknowledge, understand and agree that all of the Spark Shipping trademarks, copyright, trade name, service marks, and other Spark Shipping logos and any brand features, and/or product and service names are trademarks and as such, are and shall remain the property of Spark Shipping. You herein agree not to display and/or use in any manner the Spark Shipping logo or marks.
COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS NOTICE
Spark Shipping will always respect the intellectual property of others, and we ask that all of our users do the same. With regards to appropriate circumstances and at its sole discretion, Spark Shipping may disable and/or terminate the accounts of any user who repeatedly violates our TOS and/or infringes the rights of others. If you feel that your work has been duplicated in such a way that would constitute copyright infringement, or if you believe your intellectual property rights have been otherwise violated, you should provide to us the following information:
a) The electronic or the physical signature of the individual that is authorized on behalf of the owner of the copyright or other intellectual property interest;
b) A description of the copyrighted work or other intellectual property that you believe has been infringed upon;
c) A description of the location of the site which you allege has been infringing upon your work;
d) The physical address, telephone number, and email address;
e) A statement, in which you state that the alleged and disputed use of your work is not authorized by the copyright owner, its agents or the law;
f) And finally, a statement, made under penalty of perjury, that the aforementioned information in your notice is the truth and accurate, and that you are the copyright or intellectual property owner, representative or agent authorized to act on the copyright or intellectual property owner's behalf.
The Spark Shipping Agent for notice of claims of copyright or other intellectual property infringement can be contacted as follows:
Sparkwire Solutions Inc. DBA Spark Shipping
Attn: Copyright Agent
53 State St. 5th Floor (5E)
Boston, Massachusetts 02109
Telephone: (617) 934-6559
You agree that Spark Shipping may include your name, logo, and success stories on Spark Shipping’s website, press releases, promotional and sales literature, and advertising materials.
In performing under this Agreement, each party is acting as independent contractor, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect.
This TOS constitutes the entire agreement between you and Spark Shipping and shall govern the use of our Services, superseding any prior version of this TOS between you and us with respect to Spark Shipping Services. You may also be subject to additional terms and conditions that may apply when you use or purchase certain other Spark Shipping Services, affiliate Services, third-party content or third-party software.
CHOICE OF LAW AND FORUM
It is at the mutual agreement of both you and Spark Shipping with regard to the TOS that the relationship between the parties shall be governed by the laws of the state of Massachusetts.
WAIVER AND SEVERABILITY OF TERMS
At any time, should Spark Shipping fail to exercise or enforce any right or provision of the TOS, such failure shall not constitute a waiver of such right or provision. If any provision of this TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
RESTRICTIONS ON ASSIGNMENT
These TOS and all of the rights, interest or obligations hereunder may not be assigned, directly or indirectly, including, without limitation, by operation of law, by either of us, without the prior written consent of the non-assigning party, not to be unreasonably withheld, delayed or conditioned; provided, however, that we may assign these TOS without any such requirement of consent, in whole or in part to any affiliate, subsidiary or successor in interest in the event of a merger, consolidation, acquisition, reorganization, change in control or otherwise.
Please report any and all violations of this TOS to Spark Shipping as follows:
Sparkwire Solutions Inc. DBA Spark Shipping
Attn: Copyright Agent
53 State St. 5th Floor (5E)
Boston, Massachusetts 02109
Telephone: (617) 934-6559