THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND WAIVER OF JURY TRIAL. PLEASE READ IT CAREFULLY BEFORE AGREEING.
Terms of Service
Effective Date: April 21, 2022
Sendspark, Inc. (hereinafter “Sendspark,” “we” or “us”) provides this website (https://www.sendspark.com/) (the “Site”), our cloud-based platform (“Software”), and the associated data, services, information, tools, functionality, updates and similar materials delivered or provided by us (collectively, together with the Software, the “Service”), subject to your agreement to and compliance with the conditions set forth in this Terms of Service agreement (the “Agreement”).
This Agreement sets forth the legally binding terms and conditions governing your use of the Service. By using the Service or otherwise entering into this Agreement, you are creating a binding contract with us. If you do not agree to these terms and conditions, you may not use the Service.
This Agreement is subject to change. If this Agreement changes, we will let you know by posting the revised Agreement on the Service and/or otherwise making you aware of the changes. Your continued use of the Service following our notice of changes to this Agreement (or other method of legal acceptance) means you accept such changes. Please refer to the “Effective Date” above to see when this Agreement was last updated.
As long as you are in compliance with the conditions of this Agreement and all incorporated documents, we hereby grant you a limited, revocable, non-assignable, non-transferrable, non-sublicensable, non-exclusive license to access, receive, and use the Service. No rights not explicitly listed are granted.
The following additional terms are incorporated into this Agreement as if fully set forth herein:
The Service, among other functionality, is designed to allow individuals or companies (“Customers”) to create videos and other media, including, but not limited to, for user support, marketing, and tutorials, and other features within the Software designed to improve consumer engagement with the Customer.
To access and use our Service, its content, or its functionality, the Customer shall create an account with us (“Account”), and the Customer may, in its discretion, create an Account for the entire corporate entity, an Account for different business units/teams, and/or an Account for each of its authorized users, as applicable. Subscription Accounts and trial accounts may be available. Each Subscription (as defined below) Account must be paired with one or more payment methods (“Payment Method”), including without limitation your bank account, credit card number, credit card verification or other security code, the expiration date of your credit card, and your address. All information about your Payment Method(s) must be accurate and complete. Verification of information may be required prior to the completion or acknowledgment of setting up any Payment Method. For the purposes of clarity, when using “you” or “your” in this Agreement, we are referring to you if you are acting only for yourself, or the corporate entity that you represent.
Each Account will have one or more administrator users (each an “Administrator”) who may have certain administrative rights, privileges, oversight, and functionality within the Services including, in some instances, over the other users who are linked to the Customer’s Account. Customer shall be responsible for managing, distributing, and safeguarding the credentials to its Administrator(s) and every other authorized user so that they may access Customer’s Account.
Some parts or all of the Service may not be available to the general public, and we may impose eligibility rules from time to time. We reserve the right to amend or eliminate these eligibility requirements at any time.
By requesting to use, registering to use and/or using the Service, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and you commit to abide by all of the terms and conditions herein.
We do not represent or warrant that access to the Service will be error-free or uninterrupted, or without defect, and we do not guarantee that users will be able to access or use the Service, or its features, at all times.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part thereof, with or without notice.
The Service may contain typographical errors or inaccuracies, and may not be complete or current. We reserve the right to correct any such errors, inaccuracies or omissions and to change or update information at any time without prior notice.
The materials appearing on or through the Service including but not limited to data, summaries, descriptions, publications and any other such materials, are for information purposes only, and are not intended to and DO NOT constitute financial, medical, legal, investment, or business advice. Those accessing the materials appearing on the Service should not act upon them without first seeking financial, legal or other counsel, as these materials are general in nature, and may not apply to particular factual or legal circumstances. The materials should not be used as a substitute for consultation with a professional adviser.
Trials, Subscriptions, Cancellations, and Payments
At registration, your Account may be eligible for limited or trial access (“Trial Account”). Trial Accounts are free, last for only thirty (30) days from registration (“Trial Period”), and may offer different levels of functionality compared to a Subscription-based Account. To participate in a Trial Account, you must provide a Payment Method at the time you register for the Account. If you do not terminate your Trial Account before the end of the Trial Period, you agree and acknowledge that Trial Account will be automatically converted to a Subscription-based Account at the end of the Trial Period and your Account will be subject to Subscription terms and billing (using the Payment Method that you provided when registering for the Trial Account) as described below. However, if you terminate your Trial Account at any point during the Trial Period, access to your Trial Account will automatically terminate at the end of the Trial Period, any files, information, or data that you added to your Account will be deleted, and your Payment Method shall not be billed. You can terminate your Trial Account by emailing us at firstname.lastname@example.org from the email address associated with your Account with “Terminate Trial” in the subject line. We will notify you roughly halfway into the Trial Period about the pending conversion and your ability to terminate your Trial Account.
The Service may require the payment of fees for ongoing, self-renewing subscription access to the Service (a “Subscription”). If you have a Subscription Account, your Payment Method may be charged in the amounts and at the times identified in the Subscription you select (“Subscription Fees”). When you sign-up for a Subscription, you will be granted access to the Service for the length of time identified when you sign-up. We reserve the right to change the applicable Subscription Fees or charges and to institute new Subscription Fees and charges at the end of the current Subscription term, which may be sent by email or by posting the revised or new fees to the Service.
Fees and other charges do not include federal, local, foreign, or similar transaction taxes (“Taxes”) now or hereafter levied, all of which shall be your responsibility. If we are required to pay Taxes on your behalf, you shall be invoiced for such Taxes and shall reimburse us for such amounts as described herein.
If you do not pay at the time you order, we will invoice you for the applicable fees at our election (i) on a monthly basis in advance, with all invoices due no less than five (5) days before the start of the month to which the invoice applies, or (ii) when such Fees are due, with such invoice being due within five (5) days of issuance by us.
In addition to other applicable remedies, we reserve the right to suspend and/or terminate your access to the Service and/or terminate this Agreement if your Payment Method is declined or fails and Customer’s account therefore is delinquent. Charges to delinquent accounts are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including reasonable attorneys’ fees and court costs.
UNLESS YOU CANCEL BEFORE RENEWAL AND EXCEPT WHERE PROHIBITED BY LAW, SUBSCRIPTIONS AUTOMATICALLY RENEW FOR AN ADDITIONAL TERM OF THE SAME LENGTH UPON EXPIRATION. FEES OR CHARGES DURING ANY SUCH RENEWAL TERM SHALL BE THE SAME AS THAT DURING THE PRIOR TERM UNLESS WE HAVE GIVEN YOU NOTICE OF AN INCREASE AS DESCRIBED HEREIN, IN WHICH CASE THE INCREASE SHALL BE EFFECTIVE UPON RENEWAL AND THEREAFTER.
YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME, BUT YOU WILL NOT BE ENTITLED TO A REFUND FOR ANY PAST PAYMENTS OR FUTURE PAYMENTS DUE DURING THE REMAINDER OF YOUR CANCELLED TERM. IF YOU CANCEL BEFORE THE END OF YOUR SUBSCRIPTION, YOU WILL BE CHARGED THE ENTIRE REMAINING SUBSCRIPTION FEES AT THAT TIME.
TO CANCEL YOUR SUBSCRIPTION, PLEASE LOGIN TO THE SERVICES AND FOLLOW THE INSTRUCTIONS THEREIN OR EMAIL email@example.com FROM THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT WITH THE SUBJECT “CANCEL MY SUBSCRIPTION.”
To collect and/or process Fees, we use third parties to process payments (each a “Payment Processor”). The processing of payments will be subject to the terms, conditions and privacy policies of the applicable Payment Processor in addition to this Agreement. We are not responsible for error by the applicable Payment Processor. You agree to provide us accurate and complete information about you and your chosen Payment Method. You authorize us to share such information as well as transaction information with the Payment Processor. As a user purchasing a Subscription, you agree to pay us, through the applicable Payment Processor, all charges at the prices then in effect for such Subscription. You agree to make payment using that selected Payment Method, and you authorize us, through the applicable Payment Processor, to charge your Payment Method at the times and in the amounts associated with such Subscription. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment. You represent and warrant that you have the legal right to use any credit card(s) or other payment means used to initiate any transaction.
For any subscription products, you agree that your license to the Service is not a service, repair or maintenance to real or personal property.
Fee rates will be provided for your review prior to you being charged such Fees.
Rules of Conduct
Your use of the Service is conditioned on your compliance with the terms of this Agreement, including but not limited to these rules of conduct.
You represent and warrant:
You agree that you will not violate any applicable law or regulation in connection with your use of the Service. You further agree that you are primarily responsible for, and liable to, us for all the conduct engaged in through your Account.
You agree not to distribute, upload, make available or otherwise publish through the Service any suggestions, information, ideas, comments, causes, promotions, documents, questions, notes, plans, drawings, proposals, or materials similar thereto (“Submissions”) or graphics, text, information, links, profiles, audio, photos, software, music, sounds, video, comments, messages or tags, or similar materials (collectively “Content”) that:
You must keep your username and password and any other information needed to login to the Service, if applicable, confidential and secure. We are not responsible for any unauthorized access to your Account or profile by others.
You further agree that you will not do any of the following:
We reserve the right, in our sole discretion, to protect users from violators and violations of these rules of conduct, including but not limited to restricting your use of the Service, immediately suspending and/or terminating your use of the Service, or terminating your use of the Service by blocking certain IP addresses from accessing the Service. Notwithstanding the foregoing, our unlimited right to suspend and/or terminate your access to the Service shall not be limited to violations of these rules of conduct.
Content Submitted or Made Available to Us
You are under no obligation to submit anything to us, and unless otherwise noted, we will not claim ownership of any Content. However, in order for us to provide the Service, we need your permission to process, display, reproduce and otherwise use content you make available to us.
Therefore, if you choose to submit any Content to the Service, or otherwise make available any Content through the Service, you hereby grant to us a perpetual, irrevocable, transferable, sub-licensable, non-exclusive, worldwide, royalty-free license to reproduce, use, modify, display, perform, transmit, distribute, translate and create derivative works from any such Content for purposes of providing the Service, including without limitation distributing part or all of the Content in any media format through any media channels, including but not limited to the right to commercially use the rights of publicity, persona, trademark, image and name of the individuals and entities depicted in such Content.
You acknowledge that we are under no obligation to maintain the Service, or any information, materials, Submissions, Content or other matter you submit, post or make available to or on the Service. We reserve the right to withhold, remove and or discard any such material at any time.
Our Intellectual Property
Our graphics, logos, names, designs, page headers, button icons, scripts, and service names are our trademarks, trade names and/or trade dress. The “look” and “feel” of the Service (including color combinations, button shapes, layout, design and all other graphical elements) are protected by U.S. copyright and trademark law. All product names, names of services, trademarks and service marks (“Marks”) are our property or the property of their respective owners, as indicated. You may not use the Marks or copyrights for any purpose whatsoever other than as permitted by this Agreement.
You acknowledge that the software used to provide the Service, and all enhancements, updates, upgrades, corrections and modifications to the software, all copyrights, patents, trade secrets, or trademarks or other intellectual property rights protecting or pertaining to any aspect of the software (or any enhancements, corrections or modifications) and any and all documentation therefor, are and shall remain our sole and exclusive property or that of our licensors, as the case may be. This Agreement does not convey title or ownership to you, but instead gives you only the limited rights set forth herein.
Data Collection and Use
Enforcement and Termination
We reserve the right to deny all or some portion of the Service to any user, in our sole discretion, at any time, and to terminate any user at any time. Without limiting the foregoing or assuming additional legal obligations, we have a policy of terminating repeat violators of the Copyright Act, in accordance with applicable law.
All grants of any rights from you to us related to Content, Submissions, or other materials, including but not limited to copyright licenses, shall survive any termination of this Agreement. Further, your representations, defense and indemnification obligations survive any termination of this Agreement.
In the event that we terminate a user without cause, we may waive future charges or issue to such user a pro rata refund of any pre-paid amounts.
Third Party Links
The Service may contain links. Such links are provided for informational purposes only, and we do not endorse any website or services through the provision of such a link.
The Service may contain articles, text, imagery, video, audio, data, information and other similar materials originating from third parties. We do not endorse any third party (including other users) content that may appear on the Service or that may be derived from content that may appear on the Service, even if such content was summarized, collected, reformatted or otherwise edited by us.
You acknowledge and agree that we may make public the execution of this Agreement or your use of the Service for marketing purposes. You agree that we may include your name, logo, and image and likeness (if applicable) on the Site, a list of our customers and in other marketing materials, which may be made public, and grant to us an irrevocable, perpetual, worldwide, royalty free, freely assignable and transferable license to your name, logo, and image and likeness (if applicable) to do so.
Disclaimers and Limitation on Liability
EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE AND ACKNOWLEDGE THAT THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY, AND WE, AND OUR PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY OTHER WARRANTIES OF ANY KIND IN AND TO THE SERVICE. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY.
FURTHER, OPINIONS, ADVICE, STATEMENTS, OFFERS, SUBMISSIONS OR OTHER INFORMATION OR CONTENT MADE AVAILABLE THROUGH THE SERVICE, BUT NOT DIRECTLY BY US, ARE THOSE OF THEIR RESPECTIVE AUTHORS, AND SHOULD NOT BE RELIED UPON. WE HAVE NO CONTROL OVER THE QUALITY, SAFETY, OR LEGALITY OF SUCH CONTENT, AND MAKE NO REPRESENTATIONS ABOUT SUCH CONTENT. THE RESPECTIVE AUTHORS ARE SOLELY RESPONSIBLE FOR SUCH CONTENT. YOU ARE SOLELY RESPONSIBLE FOR ANY DECISIONS THAT YOU MAKE BASED UPON SUCH CONTENT.
USE OF THE SERVICE IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT DATA TRANSMISSION OR STORAGE IS SECURE OR THAT THE SERVICE IS FREE OF INACCURACIES, MISREPRESENTATIONS, VIRUSES OR OTHER HARMFUL INFORMATION OR COMPONENTS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS PROHIBITED BY LAW, IN NO EVENT SHALL WE OR OUR AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE TO YOU BASED ON OR RELATED TO THE SERVICE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE.
Notwithstanding the foregoing, in the event that a court shall find that the above disclaimers are not enforceable, then, to the maximum extent permissible by law, you agree that neither we nor any of our subsidiaries, affiliated companies, employees, members, shareholders, officers or directors shall be liable for (1) any damages in excess of $500.00, or (2) any indirect, incidental, punitive, exemplary, special, or consequential damages or loss of use, lost revenue, lost profits or data to you or any third party from your use of the Service or any goods sold or provided by us. This limitation shall apply regardless of the basis of your claim, whether other provisions of this Agreement have been breached, or whether or not the limited remedies provided herein fail of their essential purpose.
This limitation shall not apply to any damage that we cause you intentionally and knowingly in violation of this Agreement or applicable law that cannot be disclaimed in this Agreement.
SOME STATES MAY NOT PERMIT CERTAIN DISCLAIMERS AND LIMITATIONS, AND ANY SUCH DISCLAIMERS OR LIMITATIONS ARE VOID WHERE PROHIBITED.
You agree to defend, indemnify and hold us and our suppliers, subsidiaries, licensors, and licensees, and each of their officers, directors, shareholders, members, employees and agents harmless from all allegations, judgments, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees, expert witness fees, and costs of litigation arising out of or based on (a) Submissions or Content you submit, post to, or transmit through the Service, (b) your use of the Service, (c) your violation of this Agreement, (d) any conduct, activity or action which is unlawful or illegal under any state, federal or common law, or is violative of the rights of any individual or entity, engaged in, caused by, or facilitated in any way through the use of the Service, and (e) destruction of real or tangible property or personal injury, including but not limited to death, arising from or relating to your actions or inactions.
Governing Law and Jurisdiction; Arbitration
You agree that any claim or dispute arising out of or relating in any way to the Service will be resolved solely and exclusively by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. The laws of the State of Delaware shall govern this Agreement, and shall be used in any arbitration proceeding.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. Any arbitration between you and Sendspark shall have three (3) arbitrators.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the following address: Sendspark, Inc., 454 Soledad Street, Suite 100, San Antonio, Texas 78205 USA.
Arbitration under this Agreement will be conducted by the American Arbitration Association (AAA) under its rules then in effect, shall be conducted in English, and shall be located in Wilmington, Delaware. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrators, will be strictly confidential for the benefit of all parties.
You and Sendspark agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, both you and Sendspark agree that each have waived any right to a jury trial.
Notwithstanding the foregoing, you agree that we may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights.
To the extent arbitration does not apply, you agree that any dispute arising out of or relating to the Service, or to us, may only be brought by you in a state or federal court located in Wilmington, Delaware. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN DELAWARE.
Policies for Children
Notwithstanding the foregoing, pursuant to 47 U.S.C. Section 230 (d), as amended, we hereby notify you that parental control protections are commercially available to assist you in limiting access to material that is harmful to minors. More information on the availability of such software can be found through publicly available sources. You may wish to contact your internet service provider for more information.
Severability. If any provision of this Agreement is found for any reason to be unlawful, void or unenforceable, then that provision will be given its maximum enforceable effect, or shall be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
Revisions. This Agreement is subject to change on a prospective basis at any time. In the event that we change this Agreement, you may be required to re-affirm the Agreement through use of the Service or otherwise. Your use of the Service after the effective date of any changes will constitute your acceptance of such changes.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement or your use of the Service.
Assignment. We may assign our rights under this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without our prior written consent, and any unauthorized assignment by you shall be null and void.
No Waiver. Our failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Notices. All notices given by you or required under this Agreement shall be in writing and addressed to: Sendspark, Inc., 454 Soledad Street, Suite 100, San Antonio, Texas 78205 USA, or sent via email to firstname.lastname@example.org.
Equitable Remedies. You hereby agree that we would be irreparably damaged if the terms of this Agreement 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 Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Force Majeure. In no event shall we or our affiliates be liable to you for any damage, delay, or failure to perform resulting directly or indirectly from a force majeure event.
Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Service, and supersedes all prior or contemporaneous communications, whether electronic, oral or written.
If you believe in good faith that any material posted on our Services infringes the copyright in your work, please contact our copyright agent, designated under the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. §512(c)(3)), with correspondence containing the following:
You acknowledge that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid. For any questions regarding this procedure, or to submit a complaint, please contact our designated DMCA Copyright Agent:
454 Soledad Street, Suite 100
San Antonio, Texas 78205USA
Complaint Policy (Including Trademark and Privacy)
If you believe in good faith that any material posted on the Service infringes any of your rights other than in copyright, or is otherwise unlawful, you must send a notice to email@example.com containing the following information:
If we receive a message that complies with all of these requirements, we will evaluate the submission, and if appropriate, in our sole discretion, we will take action. We may disclose your submission to the poster of the claimed violative material, or any other party.
All notices given by you or required under this Agreement shall be in writing and addressed to: Sendspark, Inc., 454 Soledad Street, Suite 100, San Antonio, Texas 78205 USA, or sent via email to firstname.lastname@example.org.