TERMS OF SERVICE

1 INTRODUCTIONS

 

Thanks for choosing SparkDJ (“SparkDJ”, “we”, “us”, “our”). By signing up or otherwise using the SparkDJ service, websites, and software applications (together, the “SparkDJ Service” or “Service”), or accessing any content or material that is made available by SparkDJ through the Service (the “Content”) you are entering into a binding contract with Spark DJ Inc.

 

The SparkDJ Service includes social and interactive features. Use of the SparkDJ Service relies on several technical requirements.

 

Your agreement with us includes these Terms and Conditions of Use (“Terms”) and our Privacy Policy. (The Terms, Privacy Policy, and any additional terms that you agree to, as discussed in the Entire Agreement section, are referred to together as the “Agreements”.) If you wish to review the terms of the Agreements, the effective version of the Agreements can be found on SparkDJ’s website. You acknowledge that you have read and understood the Agreements, accept these Agreements, and agree to be bound by them. If you don’t agree with (or cannot comply with) the Agreements, then you may not use the SparkDJ Service or consume any Content.

 

Please read the Agreements carefully. They cover important information about SparkDJ Services provided to you and any charges, taxes, and fees we bill you. The Agreements include information about future changes to the Agreements, export controls, automatic renewals, limitations of liability, privacy information, a class action waiver, and resolution of disputes by arbitration instead of in court.

 

Any information that you provided during sign-up can be corrected by emailing support@spark.dj.

 

In order to use the SparkDJ Service and access the Content, you need to (1) be 18 or older, or be 13 or older and have your parent or guardian’s consent to the Agreements, (2) have the power to enter a binding contract with us and not be barred from doing so under any applicable laws, and (3) be resident in the United States. You also promise that any registration information that you submit to SparkDJ is true, accurate, and complete, and you agree to keep it that way at all times.

 

2 CHANGES TO THE AGREEMENTS

 

Occasionally we may, in our discretion, make changes to the Agreements. When we make material changes to the Agreements, we’ll provide you with prominent notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Service or by sending you an email. In some cases, we will notify you in advance, and your continued use of the Service after the changes have been made will constitute your acceptance of the changes. Please therefore make sure you read any such notice carefully. If you do not wish to continue using the Service under the new version of the Agreements, you may terminate the Agreements by contacting us through emailing support@spark.dj.

 

3.1 USING SPARKDJ

 

Here’s some information about all the ways you can enjoy SparkDJ.

 

3.1 Our Services & Paid Subscription

 

SparkDJ provides streaming services offering a selection of music and other content.  SparkDJ services allow for a period where content is provided to you free-of-charge. After this free-of-charge period, SparkDJ services require payment to continue use. Users using the SparkDJ service for personal use can purchase additional time referred to as “Personal Services”. SparkDJ also provides a way for business users to subscribe to a paid subscription service which also allows access to the SparkDJ services referred to as “Business Subscription”. You can learn more about our services by visiting our website.

 

The Business Subscription is only available to user who intend to use the SparkDJ services in a public venue and or intend to generate revenue while using the SparkDJ services. may not be available to all users. Email sales@spark.dj for more information about the Business Subscription.

 

3.2 Codes and other pre-paid offers

 

If you have purchased or received a code, gift card, pre-paid offer or other offer provided or sold by or on behalf of SparkDJ for access to Personal Services or Business Subscription (“Code”), separate terms and conditions presented to you along with the Code may also apply to your access to the Service and you agree to comply with any such terms and conditions.

 

3.3 Trials

 

From time to time, we or others on our behalf may offer trials of Personal Services or Business Subscription for a specified period without payment or at a reduced rate (a “Trial”). SparkDJ reserves the right, in its absolute discretion, to determine your eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.

 

For some Trials, we’ll require you to provide your payment details to start the Trial. AT THE END OF SUCH TRIALS, WE MAY AUTOMATICALLY START TO CHARGE YOU FOR THE APPLICABLE PAID SUBSCRIPTION ON THE FIRST DAY FOLLOWING THE END OF THE TRIAL, ON A RECURRING MONTHLY BASIS. BY PROVIDING YOUR PAYMENT DETAILS IN CONJUNCTION WITH THE TRIAL, YOU AGREE TO THIS CHARGE USING SUCH PAYMENT DETAILS. IF YOU DO NOT WANT THIS CHARGE, YOU MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION BY EMAILING SUPPORT@SPARK.DJ. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION OR TERMINATE YOUR SPARKDJ ACCOUNT BEFORE THE END OF THE RECURRING MONTHLY PERIOD. PAID SUBSCRIPTIONS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, SPARKDJ WILL NOT REFUND ANY FEES THAT YOU HAVE ALREADY PAID. THE LIMITATION SECTION SETS FORTH ADDITIONAL TERMS REGARDING CANCELLATION OF YOUR PAID SUBSCRIPTION.

 

4 Rights we grant you

 

The SparkDJ Service and the Content are the property of SparkDJ or SparkDJ licensors. We grant you a limited, non-exclusive, revocable license to make use of the SparkDJ Service, and a limited, non-exclusive, revocable license to make personal, non-commercial, entertainment use of the Content (the “License”). This License shall remain in effect until and unless terminated by you or SparkDJ. You promise and agree that you are using the Content for your own personal, non-commercial, entertainment use and that you will not redistribute or transfer the SparkDJ Service or the Content.

 

The SparkDJ software applications and the Content are licensed, not sold, to you, and SparkDJ and its licensors retain ownership of all copies of the SparkDJ software applications and Content even after installation on your personal computers, mobile handsets, tablets, and/or other relevant devices (“Devices”).

 

All SparkDJ trademarks, service marks, trade names, logos, domain names, and any other features of the SparkDJ brand (“SparkDJ Brand Features”) are the sole property of SparkDJ or its licensors. The Agreements do not grant you any rights to use any SparkDJ Brand Features whether for commercial or non-commercial use.

 

You agree to abide by our User guidelines and not to use the SparkDJ Service, the Content, or any part thereof in any manner not expressly permitted by the Agreements. Except for the rights expressly granted to you in these Agreements, SparkDJ grants no right, title, or interest to you in the SparkDJ Service or Content.

 

Third party software (for example, open source software libraries) included in the SparkDJ Service are licensed to you either under the Agreements or under the relevant third party software library’s license terms as published in the help or settings section of our desktop and mobile client and/or on our website.

 

6 User-Generated Content

 

SparkDJ users may post, upload, and/or contribute (“post”) content to the Service (which may include, for example, pictures, text, messages, information, playlist compilations, and/or other types of content) (“User Content”). For the avoidance of doubt, “User Content” includes any such content posted to the SparkDJ Support Community as well as any other part of the SparkDJ Service.

 

You promise that, with respect to any User Content you post on SparkDJ, (1) you have the right to post such User Content, and (2) such User Content, or its use by SparkDJ as contemplated by the Agreements, does not violate the Agreements, applicable law, or the intellectual property (including without limitation copyright), publicity, personality, or other rights of others or imply any affiliation with or endorsement of you or your User Content by SparkDJ or any artist, band, label, entity or individual without express written consent from such individual or entity.

 

SparkDJ may, but has no obligation to, monitor, review, or edit User Content. In all cases, SparkDJ reserves the right to remove or disable access to any User Content for any or no reason, including but not limited to, User Content that, in SparkDJ sole discretion, violates the Agreements. SparkDJ may take these actions without prior notification to you or any third party. Removal or disabling of access to User Content shall be at our sole discretion, and we do not promise to remove or disable access to any specific User Content.

 

You are solely responsible for all User Content that you post. SparkDJ is not responsible for User Content nor does it endorse any opinion contained in any User Content. YOU AGREE THAT IF ANYONE BRINGS A CLAIM AGAINST SPARKDJ RELATED TO USER CONTENT THAT YOU POST, THEN, TO THE EXTENT PERMISSIBLE UNDER LOCAL LAW, YOU WILL INDEMNIFY AND HOLD SPARKDJ HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) ARISING OUT OF SUCH CLAIM.

 

7 Rights you grant us

 

In consideration for the rights granted to you under the Agreements, you grant us the right (1) to allow the SparkDJ Service to use the processor, bandwidth, and storage hardware on your Device in order to facilitate the operation of the Service, (2) to provide advertising and other information to you, and (3) to allow our business partners to do the same. In any part of the SparkDJ Service, the Content you view, including its selection and placement, may be influenced by commercial considerations, including agreements with third parties. Some Content licensed, provided to or otherwise made available by SparkDJ (e.g. podcasts) may contain advertising as part of the Content. In such cases, SparkDJ will make such Content available to you unmodified.

 

If you provide feedback, ideas or suggestions to SparkDJ in connection with the SparkDJ Service or Content (“Feedback”), you acknowledge that the Feedback is not confidential and you authorize SparkDJ to use that Feedback without restriction and without payment to you. Feedback is considered a type of User Content.

 

You grant SparkDJ a non-exclusive, transferable, sub-licensable, royalty-free, perpetual (or, in jurisdictions where this is not permitted, for a term equal to the duration of the Agreements plus twenty (20) years), irrevocable, fully paid, worldwide license to use, reproduce, make available to the public (e.g. perform or display), publish, translate, modify, create derivative works from, and distribute any of your User Content in connection with the Service through any medium, whether alone or in combination with other content or materials, in any manner and by any means, method or technology, whether now known or hereafter created. Aside from the rights specifically granted herein, you retain ownership of all rights, including intellectual property rights, in the User Content. Where applicable and permitted under applicable law, you also agree to waive any “moral rights” (or the equivalent under applicable law) such as your right to be identified as the author of any User Content, including Feedback, and your right to object to derogatory treatment of such User Content.

 

8 User guidelines

 

SparkDJ respects intellectual property rights and expects you to do the same. We’ve established a few ground rules for you to follow when using the Service, to make sure SparkDJ stays enjoyable for everyone. Please follow these rules and encourage other users to do the same.

 

The following is not permitted for any reason whatsoever:

 

copying, redistributing, reproducing, “ripping”, recording, transferring, performing or displaying to the public, broadcasting, or making available to the public any part of the SparkDJ Service or the Content, or otherwise making any use of the SparkDJ Service or the Content which is not expressly permitted under the Agreements or applicable law or which otherwise infringes the intellectual property rights (such as copyright) in the SparkDJ Service or the Content or any part of it;

using the SparkDJ Service to import or copy any local files you do not have the legal right to import or copy in this way;

transferring copies of cached Content from an authorized Device to any other Device via any means;

reverse-engineering, decompiling, disassembling, modifying, or creating derivative works based on the SparkDJ Service, Content or any part thereof unless permitted by applicable law;

circumventing any technology used by SparkDJ, its licensors, or any third party to protect the Content or the Service;

selling, renting, sublicensing or leasing of any part of the SparkDJ Service or the Content;

circumventing any territorial restrictions applied by SparkDJ or it licensors;

artificially increasing play count or otherwise manipulating the Services by using a script or other automated process;

removing or altering any copyright, trademark, or other intellectual property notices contained on or provided through the SparkDJ Service (including for the purpose of disguising or changing any indications of the ownership or source of any Content);

providing your password to any other person or using any other person’s username and password;

“crawling” the SparkDJ Service or otherwise using any automated means (including bots, scrapers, and spiders) to collect information from SparkDJ; or

selling a user account or playlist, or otherwise accepting any compensation, financial or otherwise, to influence the name of an account or playlist or the content included on an account or playlist.

Please respect SparkDJ, the owners of the Content, and other users of the SparkDJ Service. Don’t engage in any activity, post any User Content, or register and/or use a username, which is or includes material that:

 

is offensive, abusive, defamatory, pornographic, threatening, or obscene;

is illegal, or intended to promote or commit an illegal act of any kind, including but not limited to violations of intellectual property rights, privacy rights, or proprietary rights of SparkDJ or a third party;

includes your password or purposely includes any other user’s password or purposely includes personal data of third parties or is intended to solicit such personal data;

includes malicious content such as malware, Trojan horses, or viruses, or otherwise interferes with any user’s access to the Service;

is intended to or does harass or bully other users;

impersonates or misrepresents your affiliation with another user, person, or entity, or is otherwise fraudulent, false, deceptive, or misleading;

uses automated means to artificially promote content;

involves the transmission of unsolicited mass mailings or other forms of spam (“spam”), junk mail, chain letters, or similar, including through the SparkDJ inbox;

involves commercial or sales activities, such as advertising, promotions, contests, sweepstakes, or pyramid schemes, that are not expressly authorized by SparkDJ;

links to, references, or otherwise promotes commercial products or services, except as expressly authorized by SparkDJ;

interferes with or in any way disrupts the SparkDJ Service, tampers with, breaches, or attempts to probe, scan, or test for vulnerabilities in the Service or SparkDJ’s computer systems, network, usage rules, or any of SparkDJ security components, authentication measures or any other protection measures applicable to the Service, the Content or any part thereof; or

conflicts with the Agreements, as determined by SparkDJ.

You acknowledge and agree that posting any such User Content may result in immediate termination or suspension of your SparkDJ account. You also agree that SparkDJ may also reclaim your username for any reason.

 

Please be thoughtful about how you use the SparkDJ Service and what you share. The SparkDJ Service includes social and interactive features, including the ability to post User Content, share content, and make certain information about you public. Remember that shared or publicly available information may be used and re-shared by other users on SparkDJ or across the web, so please use SparkDJ carefully and be mindful of your account settings. SparkDJ has no responsibility for your choices to post material on the Service.

 

Your password protects your user account, and you are solely responsible for keeping your password confidential and secure. You understand that you are responsible for all use of your username and password on the Service. If your username or password is lost or stolen, or if you believe there has been unauthorized access to your account by third parties, please notify us immediately and change your password as soon as possible.

 

9 Infringement and reporting User Content

 

SparkDJ respects the rights of intellectual property owners. If you believe that any Content infringes your intellectual property rights or other rights, please contact support@spark.dj. If SparkDJ is notified by a copyright holder that any Content infringes a copyright, SparkDJ may in its absolute discretion take actions without prior notification to the provider of that Content. If the provider believes that the content is not infringing, the provider may submit a counter-notification to SparkDJ with a request to restore the removed content by emailing support@spark.dj.

 

If you believe that any Content does not comply with the User guidelines, please email support@spark.dj.

 

10 Service limitations and modifications

 

SparkDJ will make reasonable efforts to keep the SparkDJ Service operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under applicable law, SparkDJ reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the SparkDJ Service, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the SparkDJ Service or any function or feature thereof. Notwithstanding the foregoing, if you have prepaid fees for Paid Subscriptions that SparkDJ permanently discontinues prior to the end of the Pre-Paid Period (defined in the Payments and cancellations section), SparkDJ will refund you the prepaid fees for the Pre-Paid Period after such discontinuation. You understand, agree, and accept that SparkDJ has no obligation to maintain, support, upgrade, or update the Service, or to provide all or any specific content through the Service. This section will be enforced to the extent permissible by applicable law. SparkDJ and/or the owners of any Content may, from time to time, remove any such Content without notice to the extent permitted by applicable law.

 

11 Business Accounts

 

If you establish a SparkDJ account on behalf of a company, organization, entity, or brand (a “Business”, and such account a “Business Account”), the terms “you” and “your”, as used throughout the Agreements, apply to both you and the Business, as applicable.

 

If you open a Business Account, you represent and warrant that you are authorized to grant all permissions and licenses provided in the Agreements.

 

The Business may not take any action that implies an endorsement or relationship between the Business and user, unless the Business has independently obtained the rights to imply such an endorsement.

 

13 Customer support

 

For customer support with account-related and payment-related questions (“Customer Support Queries”), please email support@spark.dj . We will use reasonable endeavors to respond to all Customer Support Queries within a reasonable time frame but we make no guarantees or warranties of any kind that any Customer Support Queries will be responded to within any particular time frame and/or that we will be able to satisfactorily answer any such queries.

 

14 Export control

 

SparkDJ’s products may be subject to U.S. export and re-export control laws and regulations or similar laws applicable in other jurisdictions, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. You warrant that you are (1) not located in Cuba, Iran, North Korea, Sudan, or Syria; and (2) are not a denied party as specified in the regulations listed above.

 

You agree to comply with all applicable export and reexport control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Specifically, you agree that you shall not – directly or indirectly – sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from SparkDJ under the Agreements to any destination, entity, or person prohibited by any applicable laws or regulations of the United States or any other jurisdiction without obtaining prior authorization from the competent government authorities as required by those laws and regulations. This export control clause shall survive termination or cancellation of the Agreements.

 

15 Payments and cancellations

 

The SparkDJ Service can be purchased directly from SparkDJ either by (1) paying a monthly subscription fee; or (2) pre-payment giving you access to the SparkDJ Service for a specific time period (“Pre-Paid Period”). If you have purchased a Paid Subscription using a Code, your Paid Subscription will automatically terminate at the end of the Pre-Paid Period, or when there is an insufficient pre-paid balance to pay for the Service.

 

Unless your Paid Subscription has been purchased as a Pre-Paid Period, your payment to SparkDJ will automatically renew at the end of the subscription period, unless you cancel your Paid Subscription by emailing sales@spark.dj page before the end of the current subscription period. The cancellation will take effect the day after the last day of the current subscription period. However, if you cancel your payment or Paid Subscription and/or terminate any of the Agreements before the end of the current subscription period, we will not refund any subscription fees already paid to us. The refund method will depend upon the payment method.

 

If you believe you are entitled to receive a refund of any monies paid to SparkDJ, please contact Sales at sales@spark.dj.

 

SparkDJ may change the price for the Paid Subscriptions, Pre-Paid Period (for periods not yet paid for), or Codes from time to time, and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for Paid Subscriptions will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use the SparkDJ Service after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the SparkDJ Service prior to the price change going into effect. Please therefore make sure you read any such notification of price changes carefully.

 

16 Term and termination

 

The Agreements will continue to apply to you until terminated by either you or SparkDJ. However, you acknowledge and agree that the perpetual license granted by you in relation to User Content, including Feedback, is irrevocable and will therefore continue after expiry or termination of any of the Agreements for any reason. SparkDJ may terminate the Agreements or suspend your access to the SparkDJ Service at any time, including in the event of your actual or suspected unauthorized use of the SparkDJ Service and/or Content, or non-compliance with the Agreements. If you or SparkDJ terminate the Agreements, or if SparkDJ suspends your access to the SparkDJ Service, you agree that SparkDJ shall have no liability or responsibility to you, and SparkDJ will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law. To learn how to terminate your SparkDJ account, please contact us by emailing support@spark.dj. This section will be enforced to the extent permissible by applicable law. You may terminate the Agreements at any time.

 

Sections 6, 7, 8, 10, 14, 16, 17, 18, 19, 20, 21, 22, 23, and 24 herein, as well as any other sections of the Agreements that, either explicitly or by their nature, must remain in effect even after termination of the Agreements, shall survive termination.

 

17 Warranty and disclaimer

 

WE ENDEAVOUR TO PROVIDE THE BEST SERVICE WE CAN, BUT YOU UNDERSTAND AND AGREE THAT THE SPARKDJ SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. YOU USE THE SPARKDJ SERVICE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SPARKDJ AND ALL OWNERS OF THE CONTENT MAKE NO REPRESENTATIONS AND DISCLAIM ANY WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER SPARKDJ NOR ANY OWNER OF CONTENT WARRANTS THAT THE SPARKDJ SERVICE IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. IN ADDITION, SPARKDJ MAKES NO REPRESENTATION NOR DOES IT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY APPLICATIONS (OR THE CONTENT THEREOF), USER CONTENT, OR ANY OTHER PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE SPARKDJ SERVICE OR ANY HYPERLINKED WEBSITE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. YOU UNDERSTAND AND AGREE THAT SPARKDJ IS NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF THIRD PARTY APPLICATIONS OR PRODUCTS OR SERVICES ADVERTISED ON OR THROUGH THE SPARKDJ SERVICE. AS WITH ANY PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM SPARKDJ SHALL CREATE ANY WARRANTY ON BEHALF OF SPARKDJ IN THIS REGARD. SOME ASPECTS OF THIS SECTION MAY NOT APPLY IN SOME JURISDICTIONS IF PROHIBITED BY APPLICABLE LAW.

 

THIS DOES NOT AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER.

 

18 Limitation and time for filing

 

YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SPARKDJ SERVICE IS TO UNINSTALL ANY SPARKDJ SOFTWARE AND TO STOP USING THE SPARKDJ SERVICE. WHILE SPARKDJ ACCEPTS NO RESPONSIBILITY FOR THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO SPARKDJ, FOR ANY PROBLEMS OR DISSATISFACTION WITH THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO UNINSTALL AND/OR STOP USING ANY SUCH THIRD PARTY APPLICATIONS.

 

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL SPARKDJ, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OR INABILITY TO USE THE SPARKDJ SERVICE, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER SPARKDJ HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SPARKDJ SERVICE, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT MORE THAN THE AMOUNTS PAID BY YOU TO SPARKDJ DURING THE PRIOR TWELVE MONTHS IN QUESTION, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW.

 

Nothing in the Agreements removes or limits SparkDJ’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence. Some aspects of this section may not apply in some jurisdictions if prohibited by applicable law.

 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT ANY CLAIM AGAINST SPARKDJ MUST BE COMMENCED (BY FILING A DEMAND FOR ARBITRATION UNDER SECTION (24.2.1) OR FILING AN INDIVIDUAL ACTION UNDER SECTION (24.2.2) WITHIN ONE (1) YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM; AND THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.

 

19 Third party rights

 

You acknowledge and agree that the owners of the Content and certain distributors (such as app store providers) are intended beneficiaries of the Agreements and have the right to enforce the Agreements directly against you. Other than as set out in this section, the Agreements are not intended to grant rights to anyone except you and SparkDJ, and in no event shall the Agreements create any third party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of the Agreements are not subject to the consent of any other person.

 

If you have downloaded the App from the Apple, Inc. (“Apple”) App Store or if you are using the App on an iOS device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple. This Agreement is between you and SparkDJ only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

 

20 Entire Agreement

 

Other than as stated in this section or as explicitly agreed upon in writing between you and SparkDJ, the Agreements constitute all the terms and conditions agreed upon between you and SparkDJ and supersede any prior agreements in relation to the subject matter of these Agreements, whether written or oral.

 

Please note, however, that other aspects of your use of the SparkDJ Service may be governed by additional agreements. That could include, for example, access to the SparkDJ Service as a result of a gift card or free or discounted Trials. When you are presented with an offer for such aspects of your use, you will be presented with any related additional agreement, and you may have an opportunity to agree to additional terms. Some of those additional terms are listed on SparkDJ ‘s website. To the extent that there is any irreconcilable conflict between any additional terms and these Terms, the additional terms shall prevail.

 

21 Severability and waiver

 

Unless as otherwise stated in the Agreements, should any provision of the Agreements be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Agreements, and the application of that provision shall be enforced to the extent permitted by law.

 

Any failure by SparkDJ or any third party beneficiary to enforce the Agreements or any provision thereof shall not waive SparkDJ’s or the applicable third party beneficiary’s right to do so.

 

22 Assignment

 

SparkDJ may assign the Agreements or any part of them, and SparkDJ may delegate any of its obligations under the Agreements. You may not assign the Agreements or any part of them, nor transfer or sub-license your rights under the Agreements, to any third party.

 

23 Indemnification

 

To the fullest extent permitted by applicable law, you agree to indemnify and hold SparkDJ harmless from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of: (1) your breach of this Agreement; (2) any User Content; (3) any activity in which you engage on or through the SparkDJ Service; and (4) your violation of any law or the rights of a third party.

 

24 Choice of law, mandatory arbitration and venue

 

24.1 Governing Law / Jurisdiction

 

The Agreements (and any non-contractual disputes/claims arising out of or in connection with them) are subject to the laws of the state of Minnesota, United States of America, without regard to choice or conflicts of law principles.

 

Further, you and SparkDJ agree to the jurisdiction of the Olmstead County District of Minnesota to resolve any dispute, claim, or controversy that relates to or arises in connection with the Agreements (and any non-contractual disputes/claims relating to or arising in connection with them) and is not subject to mandatory arbitration under Section 24.2.1.

 

SparkDJ does not accept any codes of conduct as mandatory in connection with the services provided under this agreement.

 

24.2 ARBITRATION AGREEMENT

 

This Arbitration Agreement applies only to users in the United States.

 

24.2.1 Dispute resolution and arbitration

 

You and SparkDJ agree that any dispute, claim, or controversy between you and SparkDJ arising in connection with or relating in any way to these Agreements or to your relationship with SparkDJ as a user of the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Agreements) will be determined by mandatory binding individual (not class) arbitration. You and SparkDJ further agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the Arbitration Agreement or to the arbitrability of any claim or counterclaim. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of the Agreements.

 

24.2.2 Exceptions

 

Notwithstanding the clause above (24.2.1), you and SparkDJ both agree that nothing in this Arbitration Agreement will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (1) bring an individual action in a U.S. small claims court or (2) bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator. In addition, this Arbitration Agreement doesn’t stop you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).

 

24.2.3 No Class Or Representative Proceedings: Class Action Waiver

 

YOU AND SPARKDJ AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and SparkDJ agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.

 

25 Contact us

 

If you have any questions concerning the SparkDJ Service or the Agreements, please contact SparkDJ Customer Service by emailing support@spark.dj.

 

Contracting entity:

 

Spark DJ Inc.

4 3rd St SW, Office #206, Rochester, MN 55902

USA