Last revised: August 19, 2022
YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY ACCESSING OR SUBMITTING ANY INFORMATION THROUGH OUR WEBSITE(S) OR SERVICES, YOU EXPRESSLY CONSENT TO BE BOUND BY THESE TERMS.
Users of our SPARK software products (provided on a software-as-a-service (“SaaS”) basis and related services (collectively our “Services”) hosted and maintained by Ignify Technologies, Inc. (“SPARK”, “we”, “our”, or “us”) and any information including any links to any third party services provided through our Services are governed by either through a separate Master Services Agreement or other agreement with us and our client and client’s authorized users or a user which is subject to our End User License Agreement (“EULA”) (e.g., acquiring access to our Services through an authorized reseller).
Other than users subject to a Master Services Agreement or a EULA, if you are otherwise accessing, browsing or using our website(s) (“Site”), you acknowledge that you have read, understood and agree to be bound by these Terms and to comply with all applicable laws and regulations. If you do not agree to these Terms, do not use our Site. Our Site may contain proprietary notices and/or copyright information and you must comply with such notices and you may not remove or modify the same.
We reserve the right modify these Terms at any time, in our sole discretion, and such modifications shall be effective immediately upon posting. Your continued use of our Site will mean you accept such Terms. Usage of our Site constitutes your irrevocable waiver of any claim you may bring that you did not read, understand or agree to these Terms.
PLEASE NOTE THAT THESE TERMS CONTAIN A MANDATORY ARBITRATION & CLASS WAIVER PROVISION IN ADDITION TO A JURY WAIVER PROVISION. These provisions affect your right to bring a claim in court, as a class action member, or in front of a jury. Please review these Terms carefully before accessing or using our Site.
NO WARRANTY; DISCLAIMER
THE SITE AND ANY INFORMATION CONTAINED ON OR PROVIDED THROUGH THE SITE ARE PROVIDED ON AN “AS IS” BASIS. Any access to the Site is voluntary and at your sole risk. Except as set forth in these Terms, SPARK DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, representations or endorsements of any kind whatsoever (including, without limitation, warranties of merchantability, fitness for a particular purpose, title or non-infringement) with regard to the Site or with respect to any data or information contained on or provided through the Site. SPARK does not warrant that the Site will be uninterrupted, timely, and secure or error free. Neither SPARK nor any of its Third Party Providers (defined below) makes any warranty as to any results that may be obtained by use of any data or information provided through the Site. You acknowledge and agree that SPARK and its Third Party Providers and their employees, officers, affiliates, agents, attorneys, representatives, successors and assigns (collectively the “Released Parties”), shall not be liable for any personal injury, including, but not limited to, death, caused by your use or misuse of the Site or data or information provided on or through the Site. Some jurisdictions do not allow the exclusion of implied warranties, so this disclaimer is subject to applicable law.
OWNERSHIP OF IP
IP. We are and shall remain the sole owner and/or authorized licensor of the Site and we retain all rights, title and interest in the Services and our SPARK Data (defined below), including all related intellectual property (i.e. copyright, trademark, trade secret, patent, knowhow and other proprietary rights). The Site and SPARK Data are provided on an “AS IS” and “AS AVAILABLE” basis. The Site and SPARK Data and any and all derivatives shall be and remain our property. Such property includes all information such as the “look and feel” of the Site, our Services and SPARK Data, the data files, graphics, text, logos, images, sounds, music, video or audio files part of the Site or our Services. You shall have no rights or interests therein except as set forth in these Terms. You agree to notify us immediately in writing of any claim made against you regarding the Site, our Services, or SPARK Data and to cooperate as reasonably necessary, at our expense, in the defense and settlement of such claim. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Site, our Services or SPARK Data. You acknowledge that SPARK and/or our licensors or suppliers own all right, title and interest in, and retain any intellectual property rights in all information and content provided through the Site and collected, developed or licensed by SPARK and/or its licensors or suppliers for use in conjunction with the Site, Services or information provided through the same (collectively “SPARK Data”). You agree not to change or delete any copyright or proprietary notice from SPARK Data, content contained on or provided through the Site or Services.
Copyright in SPARK Data. The copyright in all SPARK Data is held by SPARK. Except as expressly permitted by SPARK, you may not copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means any SPARK Data, including, but not limited to electronic, mechanical, photocopying, recording, or otherwise. You may not (and you shall not assist any third party to) use our Site, Services or SPARK Data to:
- Send any unsolicited communication (i.e., SPAM) to any person;
- Harvest, collect, gather or assemble information or data regarding other users without their consent;
- Transmit through or post on the Site unlawful, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material, or that violate any privacy rights or regulations, or material that may be harmful to minors;
- Transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs, including without limitation any time bomb, virus, software lock, drop-dead device, malicious logic, worm, Trojan horse, or trap door which is designed to delete, disable, deactivate, interfere with or otherwise harm the Site or SPARK Data;
- Knowingly interfere with or disrupt the integrity or performance of the Site, Services or SPARK Data or attempt to gain unauthorized access to the Site, Services, or computer systems or networks related to the Site or Services;
- Decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or derive any source code (or underlying ideas, algorithms, structure or organization) from the Site or Services by any means whatsoever;
- Distribute, disclose or allow use of any of the Site or Services in any format through any timesharing device, service bureau, network or by any other means, to or by any third party;
- Sublicense, rent, lease, use, permit use of, modify, create derivatives of or make available any part of the Site or Services or documentation except as expressly permitted in this Agreement
- Violate the use right provided pursuant to these Terms;
- Remove, obscure, or alter any copyright, trademark or ownership notices from the Site, Services or SPARK Data;
- Provide a third party with the results of any functional evaluation or benchmarking or performance tests related to the Site or Services;
- Create Internet “links” to or from the Site or Services without our express consent and if permitted must be subject to: (i) no implication that SPARK is endorsing you or your products or services, (ii) no implication of an affiliation with SPARK, and (iii) no misrepresentation or presentation of false or misleading impressions of SPARK’s activities, Site, Services or SPARK Data; or
- Use the Site or Services to evaluate applications for accounts intended to be used primarily for personal, family or household purpose or to identify the risk of consumer accounts (provided that this is not intended to include sole proprietorships).
Trademarks. Unless otherwise expressly stated in these Terms, any trademarks, service marks, trade names and logos (“Trademarks”) used or displayed on the Site or in the SPARK Data are owned by SPARK. Any third party Trademarks are owned by such third party. You may not use SPARK Trademarks in any way, including in advertising or publicity pertaining to the Site or SPARK Data or distribution of the same without our express consent.
Privacy Notice. SPARK collects and uses your personal information in accordance with our Privacy Notice, available at www.lendwithspark.com/privacy-notice.
LIMITATIONS ON LIABILITY
Limitations. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SPARK (INCLUDING ITS LICENSORS, SUPPLIERS AND AGENTS) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER, RESULTING FROM ANY LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, LITIGATION, OR ANY OTHER PECUNIARY LOSS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, OUR SERVICES OR SPARK DATA OR INFORMATION PROVIDED BY A THIRD PARTY PROVIDER, WITH THE DELAY OR INABILITY TO USE THE SITE, OUR SERVICES, OR WITH THE PROVISION OF OR FAILURE TO MAKE AVAILABLE ANY SPARK DATA CONTAINED ON OR PROVIDED THROUGH THE SITE OR OUR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES SHALL SPARK AND THE OTHER RELEASED PARTIES BE LIABLE FOR DAMAGES EXCEEDING THE SUM OF FIFTY DOLLARS ($50.00). THE EXISTENCE OF MULTIPLE CLAIMS SHALL NOT INCREASE THIS LIMIT. Any claims against SPARK or any other released party arising out of or related to these Terms must be brought within one (1) year of the date of the event giving rise to such claim.
Fundamental Agreement. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THESE TERMS AND THE SITE AND SPARK DATA WOULD NOT BE PROVIDED TO YOU ABSENT SUCH LIMITATIONS OF LIABILITY. Some jurisdictions do not allow the exclusion or limitation of certain damages, so this section may not apply to you.
Costs of Litigation. To the extent not prohibited by law, you shall be responsible for all charges, fees and expenses, costs of collection (including reasonable attorney’s fees) incurred by SPARK in enforcing or attempting to enforce its rights hereunder, regardless of whether suit is commenced. In the event applicable law would convert this provision into a bilateral (i.e. “prevailing party”) fee shifting provision, this provision shall be deemed severed from these Terms and the remainder of these Terms will remain in full force and effect.
Arbitration & Class Waiver. If any claim arising out of or related to these Terms, other than for a claim of IP infringement of for injunctive relief, cannot be settled by the disputants, the claim shall be resolved pursuant to informal arbitration by an arbitrator selected under the Commercial Arbitration Rules of the American Arbitration Association (as then in effect for expedited proceedings) and located in Hennepin County, Minnesota, and such arbitration shall be conducted in that same location under such rules. Notwithstanding the foregoing, no disputant shall be required to seek arbitration regarding any cause of action that would entitle such disputant to injunctive relief. Each of the disputants shall be entitled to present evidence and argument to the arbitrator. The arbitrator shall permit reasonable pre-hearing discovery of facts, to the extent necessary to establish a claim or a defense to a claim, subject to supervision by the arbitrator. The determination of the arbitrator shall be conclusive and binding upon the disputants and a court judgment upon the same may be entered in any court having competent jurisdiction thereof. The arbitrator shall give written notice to the disputants stating the arbitrator’s determination, and shall furnish to each disputant a signed copy of such determination. Subject to the “Costs of Litigation section above, the expenses of arbitration shall be borne equally by the opposing disputants. ALL PARTIES EXPRESSLY WAIVE THEIR RIGHTS AND ABILITIES TO MAINTAIN A CLASS ACTION OR SIMILAR PROCEEDING IN ANY FORUM, INCLUDING, BUT NOT LIMITED TO, ARBITRATION AND COURT, AND ANY AND ALL CLAIMS MAY ONLY BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY AND NOT AS A MEMBER OF ANY PURPORTED CLASS ACTION OR SIMILAR PROCEEDING
Jury Waiver. OTHER THAN FOR CLAIMS OF IP INFRINGEMENT, THE PARTIES VOLUNTARILY, KNOWINGLY AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING WHICH MAY RIGHTFULLY BE BROUGHT IN COURT ARISING OUT OF OR RELATED TO THESE TERMS, REGARDLESS OF WHETHER SUCH ACTION OR PROCEEDING CONCERNS ANY CONTRACTUAL, TORTIOUS OR OTHER CLAIM. You acknowledge that you understand the legal effect of this waiver.
Generally. Section headings are not to be considered part of these Terms. They are included solely for convenience and not intended to be full or accurate descriptions of the content hereof. Our failure to insist upon strict enforcement of any provision(s) of these Terms shall not be construed as a waiver of any provision or right. You are not permitted to assign these Terms or your Account or any of your rights and obligations to these Terms, in whole or in part, without our prior written consent, which may be withheld in our sole discretion. Should any provision of these Terms be held invalid or unenforceable, such invalidity will not invalidate the whole of these Terms, but rather that invalid provision will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of these Terms will remain in full force and effect. Any and all rights and obligations contained in these Terms which by their nature and/or context are intended to survive termination of these Terms shall so survive, including, but not limited to, the limitation of liability, disclaimer and indemnification.
Compliance with Applicable Laws. You agree that you will not use the Site, our Services or SPARK Data for activities prohibited by local, state or federal law or other applicable rules or regulations. You represent and warrant that: (i) you are not located in a country that is subject to U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Notices. Notices under these Terms shall be in writing and shall be deemed given when: (i) delivered personally; (ii) on the date sent by facsimile or e-mail to the number or e-mail address provided through your Account; or (iii) three (3) business days after the date sent by certified mail, postage prepaid with return receipt requested. Notices to SPARK shall be made to: Ignify Technologies, Inc., Attn: Chief Operating Officer, 801 Nicollet Mall, Suite 1700W, Minneapolis, MN 55402.
Third Party Beneficiary. Nothing in these Terms is intended to confer upon any person other than the parties hereto, and their respective heirs, successors and permitted assigns, any rights or remedies under or by reason of these Terms.
Agreement. Unless you are an employee, agent or authorized user of a company under an Agreement with SPARK, these Terms constitute the entire agreement and understanding among the parties with respect to your use of our Site and the related SPARK Data and supersede all prior and contemporaneous agreements, understandings, inducements and conditions expressed or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. These Terms shall be binding upon and inure to the benefit of the parties, their successors, and assigns.
Governing Law/Jurisdiction. These Terms shall be governed by, construed and enforced according to the laws of the State of Minnesota, without regard to its conflict or choice of law principles; provided that to the extent the substantive and procedural laws of the United States would apply to these Terms, they shall supersede the application of Minnesota law. Subject to the Arbitration & Class Waiver provision above, any action arising out of or relating to these Terms shall be brought only in the state or federal courts of Hennepin County, Minnesota, and all parties expressly consent to such court’s jurisdiction and irrevocably waive any objection with respect to the same, including any objection based on forum non conveniens.
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