These General Terms and Conditions (together with the Services Agreement to which these General Terms and Conditions are attached and each other Schedule and Addendum thereto, the “Agreement”) sets forth the terms and conditions that apply to your access and used of the internet website owned and operated by Spark RE Technologies Inc. (dba Spark) ("Spark", “we”, “our” or “us”) and located at https://spark.re/ (the "Site") and the services available thereon, including without limitation the services that enable you to sell, market and manage pre-development and pre-construction real estate development projects (the “Services”) by your customers (“Your Customers”).
Your use of the Services constitutes your acceptance of the Agreement. Therefore, please take the time to review carefully. If you do not agree with some or all of these terms, do not use the Website.
Subject to your compliance with all of the terms and conditions of this Agreement, during the term of this Agreement, Spark grants to you a non-transferable, non-sublicensable, non-exclusive, revocable, limited-purpose right to access and use the Materials that we make available to you under valid subscription(s) (each, a “Subscription”) on the front page of this Agreement.
All material available on the Site and all material and services (including but not limited to the Services) provided by or through Spark, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners including, but not limited to, software, all informational text, software documentation, design of and "look and feel," layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, the "Materials"), are owned by us or our licensors or service providers, and are protected by copyright, trademark, trade secret and other intellectual property laws.
If Spark, in its sole discretion and without notice, considers that there is an immediate security or operational risk to the Services, any of its, your or a third party system, then Spark may immediately suspend access to or use of the Services. The suspension of use and access is not a breach of this Agreement. You acknowledge that the preservation of security, confidentiality and data is paramount. Spark has no liability to you for suspending the Services under this provision.
This section does not apply to Content (as defined below); however you agree that any ideas, suggestions, concepts, processes or techniques which you provide to Spark related to the Services, the Site or Spark or its business ("Feedback") are and shall be Spark's exclusive property without any compensation or other consideration payable to you by Spark, and you do so of your own free will and volition. Spark may or may not, in its sole discretion, use or incorporate the Feedback in whatever form or derivative Spark may decide into the Site, its software, services, documentation, business or other products, or any future versions or derivatives of the foregoing. You hereby assign all rights on a worldwide basis in perpetuity to Spark in any Feedback and, as applicable, waive any moral rights.
You agree that Spark is providing you with one user identification reference that you shall use to create a username and password (together, the “User ID”) to the extent, and only to the extent, necessary to access and use the Site and Services in accordance with this Agreement. You agree and understand that you are responsible for maintaining the confidentiality of your User ID. That User ID, together with any or other user information you provide, will form your "Profile Information" and allow you to access your account (“Account”). You will provide true, accurate, current and complete information about yourself, and you agree not to misrepresent your Profile Information. You represent and warrant to Spark that you have not misrepresented any Profile Information. You are responsible for any Profile Information that may be lost or unrecoverable through the use of the Site or Services.
The Site and the Services available thereon enable you to upload, transmit or process content, including but not limited to text, images, video, data, and other information or content related to services you provide to your customers, including lead information, inventory information and contract information (collectively, “Content”). You acknowledge and agree that you are solely responsible for all Content you upload, transmit or process.
Spark will use Content you upload solely in connection with providing the Services to you, and for no other reason. You agree that Spark is not responsible for any violations of any third party intellectual property rights in any Content that you submit to Spark.
Spark retains the right to use or share any Aggregated Data generated by anyone using our Site, including our users and Your Customers, for the purpose of enhancing and providing the Services. “Aggregated Data” means data does not contain personal information and which has been manipulated or combined to provide generalized, anonymous information. Where you choose to utilize or connect certain services from third parties with the Services, you agree that Spark may share your lead data with such designated third parties. You are still responsible for any and all personal information that is part of any Content (as defined below).
You shall pay all fees specified in any Subscription. Unless otherwise specified in a Subscription, such fees shall be billed in advance for each month and are non-refundable. There will be no refunds or credits for partial months of service or for periods in which your account remains open but you do not use the Services. If you exceed any usage or fee thresholds set forth in your Subscription, we may charge you for such overages on your next invoice.
The fees payable for each Subscription and for any fee-based Services provided pursuant to this Agreement shall be based on the Fee Schedule set out in Schedule A.
Subject to your payment of applicable fees, we will provide the Services to you for the period of time that you have paid for such Services, on the basis under which you have selected your Subscription (each, a “Subscription Period”).
If you purchase any fee-based Services, including project set up and any customizations, you agree that Spark, or our third party service providers, may store your credit or charge card information. You expressly agree that we are authorized to charge you (i) a fee for any applicable Services for which you have subscribed, billed on a basis of the Subscription Period, (ii) any other fees for Services you may purchase, (iii) any charges for use of the Services in excess of the usage or other limits placed on your use of the Services (and you hereby consent to such charges and agree we are not required to notify you of any such charge in advance) and (iv) any applicable taxes in connection with your use of the Services to the credit or charge card you provide and to reimburse us for all collection costs and interest for any overdue amounts. If the credit or charge card you provide expires and you do not provide new credit or charge card information or cancel your account, you authorize us to continue billing you and you agree to remain responsible for any uncollected fees.
You take full responsibility for all taxes and fees of any nature associated with the Services, including any sales tax related to any purchase or sale of services or goods under this Agreement.
If you use the Services to collect, store, use or disclose sensitive or personal information about identifiable individuals, you will only do so in accordance with applicable law, and furthermore take all measures to protect the privacy and legal rights of those individuals. If users provide you with sensitive information or personal information, you must make the users aware that the information is being collected and its intended purpose, and you must provide legally adequate privacy notice and protection for those users. If you store personal or sensitive information, you must do so securely.
Your Content is and shall be deemed to be your confidential and proprietary information and nothing in this Agreement or otherwise gives us any right or license to the Content, other than as minimally necessary to provide you with the Services.
YOU WILL INDEMNIFY, DEFEND AND HOLD SPARK HARMLESS FOR ANY FAILURE TO COMPLY WITH THE FOREGOING, OR FOR ANY CLAIM MADE AGAINST SPARK BY ANY THIRD PARTY RELATED TO YOUR USE OF THE SERVICES IN RELATION TO PERSONAL INFORMATION, CONTENT OR OTHER THIRD PARTY INFORMATION UPLOADED, TRANSMITTED OR PROCESSED BY YOU.
You agree that you will not publish or make available any Content that, or use the Site or Services in a manner that:
(a) infringes, violates or misappropriates any third party’s intellectual property or proprietary rights;
(b) contains software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(c) is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
(d) includes personal or identifying information about another person in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Site or Services to users;
(e) collects, uses or discloses data, including personal information, about users without their informed consent or for unlawful purposes or in violation of applicable law or regulations;
(f) attempts to gain unauthorized access to the computer systems of Spark or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Site or Services;
(g) decompiles or reverse engineers or attempts to access the source code of the software underlying the Site, the Services or any other Spark technology;
(h) copies, archives, stores, reproduces, rearranges, modifies, downloads, uploads, creates derivate works from, displays, performs, publishes, distributes, redistributes or disseminates all or any part of the Site or Services;
(i) accesses the Site or Services for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or
(j) accesses the Site to upload any Content or computer code for the purposes of: (i) causing a breach or override of security to the Site or Services; (ii) interfering with the proper working, functionality or performance of the Site or Services; or (iii) preventing others from accessing or using the Site or Services.
YOUR USE OF THE SITE OR SERVICES AND ALL CONTENT FORMING PART OF OR RELATED TO THE SITE OR SERVICES, INCLUDING ANY CONTENT YOU UPLOAD OR SUBMIT AND ANY THIRD PARTY SOFTWARE AND CONTENT, ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SPARK EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND WITH RESPECT TO THE SITE OR SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT.
SPARK DISCLAIMS ANY WARRANTY THAT THE SITE, THE SERVICES OR ANY CONTENT, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY SOFTWARE AND CONTENT, WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT FROM TIME TO TIME SPARK MAY REMOVE THE SITE OR CEASE PROVIDING THE SERVICES FOR INDEFINITE PERIODS OF TIME WITHOUT NOTICE TO YOU. YOUR ACCESS AND USE OF THE SITE AND THE SERVICES MAY BE INTERRUPTED FROM TIME TO TIME FOR ANY OF SEVERAL REASONS, INCLUDING, WITHOUT LIMITATION, THE MALFUNCTION OF EQUIPMENT, PERIODIC UPDATING, MAINTENANCE OR REPAIR OF THE SITE OR SERVICES OR OTHER ACTIONS THAT SPARK, IN ITS SOLE DISCRETION, MAY ELECT TO TAKE. SPARK MAKES NO GUARANTEE REGARDING THE COMPATIBILITY OF ANY SOFTWARE, HARDWARE OR CONTENT WITH THE SITE OR SERVICES.
SPARK IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD-PARTY PROVIDER OF ANY CONTENT, SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO, INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY SPARK, TELECOMMUNICATIONS PROVIDERS, CONTENT PROVIDED BY OTHER USERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY SPARK.
The Site may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. These other websites are not under Spark's control, and you acknowledge that Spark is not responsible or liable for any third party content, including but not limited to the accuracy, integrity, quality, usefulness, legality, appropriateness, safety or intellectual property rights of or relating to such third party content or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Spark or any association with its operators. You further acknowledge and agree that Spark shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third party content, goods or services available on or through any such website or resource. Access and use of third party sites, including the information, material, products and services on third party sites or available through third party sites, is solely at your own risk.
YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT, SHALL SPARK OR ITS OWNERS, OFFICERS, DIRECTORS, AFFILIATES, CONTRACTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES OR THE COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES (EVEN IF SPARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR YOUR INABILITY TO USE THE SITE OR SERVICES, OR FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY SUBSCRIPTION. SPARK’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS UNDER THIS AGREEMENT IS LIMITED TO THE LESSER OF: (A) $100; AND (B) THE TOTAL AMOUNTS YOU PAID TO SPARK IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF LOSS OR DAMAGE. TO THE EXTENT ANY PROVINCE, STATE OR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SPARK’S LIABILITY IN SUCH PROVINCE, STATE OR JURISDICTION SHALL BE LIMITED TO THE FURTHEST EXTENT PERMITTED BY LAW. NOTWITHSTANDING THE FOREGOING OR ANYTHING ELSE HEREIN TO THE CONTRARY, SPARK SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF IN ANY WAY WITH RESPECT TO YOUR PROVISION OF AN INDIVIDUAL’S PERSONAL INFORMATION TO SPARK OR THROUGH THE SERVICES. YOU FURTHER AGREE THAT THE FOREGOING LIMITATIONS SHALL APPLY WITH RESPECT TO THIRD PARTY LIABILITY OF ANY KIND.
THE FOREGOING LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO ANY DAMAGES INCURRED BY REASON OF ANY CONTENT OR SERVICES PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN SPARK AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SITE OR RECEIVED BY YOU ON ANY THIRD PARTY SITES. YOU ALSO AGREE THAT SPARK WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY INTERACTIONS OR DEALINGS WITH ADVERTISERS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SITE.
Spark shall have no liability whatsoever for any damages, liabilities, losses or any other consequences that you may incur as a result of any modification, suspension or discontinuance of the Site and/or the Services.
WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THE SITE, THE SERVICES, THE SUBSCRIPTION AND/OR THIS AGREEMENT: (I) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY; AND (II) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
Subject to any applicable limitations laws, you agree that you will not bring a claim under or related to this Agreement more than 12 months from when your claim first arose.
You agree to indemnify, defend, and hold harmless Spark, and its subsidiaries, affiliates, co-branders, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives (together, the “Indemnified Parties”), from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys’ fees) (collectively and individually, “Claims”) incurred by or made against the Indemnified Parties in connection with any Claims arising out of or relating to this Agreement, the Site or the Services, including but without limitation in relation to: (a) your use, non-use or misuse of, or connection to the Site, the Services and any Content, including without limitation your Profile Information and any third party Content forming part of the Site; (b) your violation or alleged violation of this Agreement; and (c) your violation of any rights, including intellectual property rights, of a third party and otherwise as set out herein. Spark reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Spark and you agree to cooperate with Spark’s defense of these Claims. You agree not to settle any matter without the prior written consent of Spark. Spark will use reasonable efforts to notify you of any such Claims upon becoming aware of it.
You may cancel your Account at any time through the website manager interface provided as part of the Services by contacting your account representative or email@example.com.
You will remain liable for all charges accrued on your Account up to the time of cancellation, including full fees for the then current Subscription Period in which you cancelled your Account. Spark is under no obligation to store your Content and may delete your Account and your Content immediately upon cancellation or may keep your Account and your Content for up to 90 days following the last day of the month of cancellation. Upon request from you, we will make available for access to you any of your Content for 30 days from the effective date of termination of the Services.
Spark reserves the right at any time, and without cost, charge or liability, to terminate this Agreement at its sole discretion for any reason, including, but not limited to, a failure to comply with the terms of this Agreement. Spark reserves the right to modify, suspend or discontinue the Site and/or Services, or any portion thereof, at any time and for any reason, with or without notice.
If there is any dispute between you and Spark about or involving this Agreement, the Site or the Services, you hereby agree that the dispute shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada, without regard to its conflict of law provisions.
Except for any claim involving the ownership of intellectual property, all disputes arising out of or in connection with this Agreement will be referred to and finally resolved by arbitration under the rules of the British Columbia International Commercial Arbitration Centre. The appointing authority will be the British Columbia International Commercial Arbitration Centre. The case will be adjudicated by a single arbitrator and will be administered by the British Columbia International Commercial Arbitration Centre in accordance with its rules. The place of arbitration will be Vancouver, British Columbia, Canada. The language of the arbitration will be English.
Any claim, proceeding or action that arises under this Agreement shall submit to the exclusive jurisdiction of the courts in Vancouver, British Columbia with respect to any claim, proceeding or action relating to or otherwise involving the ownership of intellectual property, howsoever arising, provided always that Spark may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
You agree that this Agreement is specifically enforceable by Spark through injunctive relief and other equitable remedies without proof of monetary damages.
You agree that if Spark does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Spark has the benefit of under any applicable law), this will not be taken to be a formal waiver of Spark's rights and that those rights or remedies will still be available to Spark.
The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
The sections of “Submission of Content”, “Intellectual Property Rights”, “Confidential Information”, “Disclaimer of Warranties”, “Third Party Sites and Content”, “Exclusive Remedy and Limitation of Liability”, “Waiver of Jury Trial and Class Action Rights”, “Limitation of Time”, “Indemnity” and “Miscellaneous” will survive any actual or purported termination or expiry of this Agreement and continue in full force and effect.
This Agreement is the entire agreement between us related to the subject matter in this Agreement. This Agreement replaces and supersedes any other prior or contemporaneous agreement, representation or discussion, oral or written, and may not be changed except in writing signed by us, regardless of whether or not the parties act under an unsigned “electronic” agreement or rely on such an unsigned agreement.