SparkLife LLC Terms of Service
Last Updated: January 10 2025
IMPORTANT NOTICE: THESE TERMS contain a binding arbitration provision and class action waiver that apply to all claims brought against SparkLife. THEY affect your legal rights as detailed in the MANDATORY ARBITRATION AND CLASS ACTION WAIVER section below. By accepting these Terms, you agree to be bound by the arbitration provision and class action waiver CONTAINED IN THAT SECTION. PLEASE READ IT CAREFULLY.
OVERVIEW
We are SparkLife LLC (“SparkLife”, “we”, “us”, or “our”). These Terms of Service (“Terms”) govern access to and use of all of our websites that link to these Terms (each a “Site”) by site visitors as well as the use by individuals of any of our products and services including the Store as defined below (collectively, together with the Site, the “Services”).
ACCEPTANCE OF TERMS
These Terms are a legally binding agreement, and our Privacy Policy is incorporated and forms a part of these Terms. Please review these documents prior to using the Services. To the extent allowed by applicable law, by using the Services, including visiting a Site, you agree to the Terms and agree that we may handle your information as set forth in our Privacy Policy. If you don’t agree with these Terms or our Privacy Policy, please don’t use the Services or visit a Site.
All references to “you” or “your,” as applicable, mean the person who accesses or uses the Services in any manner, and each of your heirs, assigns, and successors. If you use the Services on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that entity to these Terms, your acceptance of the Terms will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity.
We reserve the right to change or update these Terms from time to time at our sole discretion. Such changes or modifications will be posted here with an updated “Last Updated” date above. Please review the Terms frequently for any changes. If the changes include material changes, we will notify you of the changes as required by law. Your continued use of the Services following the effective date of any changes to these Terms constitutes acceptance of those changes. If you do not agree to the new Terms, you may not use the Services.
We reserve the right to refuse to provide the Services to anyone for any reason at any time. We may change, add, or remove features, products, or functionalities, or we may also suspend or stop the Services altogether. We may take any of these actions at any time for any reason, with or without notice. We are not liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
The Services, including the Site, are not intended for children, and you must be at least 18 years old to use the Services. By agreeing to these Terms, you represent and warrant that you are over 18 years old and at least the age of majority in your state or province of residence.
You represent and warrant that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in these Terms or in the performance of such obligations will place you in breach of any other contract or obligation.
You are solely responsible and liable for all activity that takes place on the Services in connection with your name or other information, including purchases, whether or not authorized by you. If you think your information has been used without your authorization in connection with the Services, you must notify us immediately. SparkLife will not be liable to you for any loss or damage that occurs in connection with any unauthorized activity under your name or other information.
You must use the Services only in compliance with these Terms and applicable law. You may not do, attempt to do, enable, or encourage anyone else to do, anything illegal or (as determined by us) anything objectionable or inappropriate in connection with the Services, including but not limited to the following:
If you violate any provisions or restrictions of these Terms, we reserve the right, in our sole discretion and without notice to you, to terminate and/or block or limit your access to the Services. We are not liable to you or any third party for any termination of your access to the Services.
We do not warrant that information made available on or through the Services is accurate, complete, reliable, error-free or current. Occasionally the Services may contain typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, offers, product shipping charges, transit times, and availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information if any information in connection with the Services is inaccurate at any time without prior notice. We undertake no obligation to update, amend or clarify information in the Services, except as required by law.
Please note that results may vary. Any feedback or testimonials that you encounter about the Services may not apply to you and you may have different results from individuals providing such feedback.
The materials on and for the Services are provided for general informational and educational purposes only, and it should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the materials on the Services is at your own risk.
The Services are not intended to provide and do not constitute medical advice. For medical advice, please consult with a physician or other health professional. We do not claim our products or services will alleviate, heal, or cure any health condition or symptom. The contents on the Services are not meant to diagnose, treat, prevent, or cure any medical condition, and should not be used as a substitute for consulting a physician or other health professional. Any information that you find on the Services, on websites we link to, or that you otherwise receive in connection with the Services should be verified with your physician. If you think you have a medical emergency or any condition requiring immediate attention, call your physician or 911 immediately. The statements made by us on or in connection with the Services have not been evaluated by the Food and Drug Administration.
The Services may contain certain historical information. Historical information is necessarily not current and is provided for your reference only. We reserve the right to modify the contents of the Services at any time, but we have no obligation to update any information on the Services. You agree that it is your responsibility to monitor changes to the Services.
All content on the Services is owned by SparkLife and its licensors, including exhibits, information, material, software, images, text, graphics, “look and feel” of the Services, and all related intellectual property rights (“SparkLife Content”). The Services are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. You may not copy, display, create derivative works from, or otherwise use any SparkLife Content without SparkLife’s or our licensors’ explicit authorization. SparkLife grants you a non-exclusive, non-transferable, and revocable limited license to access and use the Service consistent with these Terms. Any rights not expressly granted herein are reserved by SparkLife and its licensors. SparkLife will have no liability to you for any damage or loss arising from unauthorized uses.
The Services may contain links to or integrations with third-party websites, platforms, applications, or services (collectively, “Third–Party Services”) that are subject to different terms and privacy practices. Your use of and interactions with any Third-Party Services (including any purchases made on Third Party Services) are governed by the third party’s terms and not by these Terms. You interact with Third-Party Services at your own risk.
We do not own or control Third-Party Services, and we are not responsible or liable for any aspect of such Third-Party Services, including but not limited to any harm or damages related to any interactions or transactions you may have with Third-Party Services (such as any information, content, or materials provided by Third-Party Services or your purchase or use of any products or services from Third-Party Services). Links and integrations to Third-Party Services are not an endorsement or recommendation.
You may be able to purchase certain products via Third-Party Services. Some third parties provide us with a commission when a user of our Services makes a purchase from the third party using the link on our Services or using a code provided by us.
Please carefully review any third party’s policies and practices and make sure you understand them before you engage in any transaction or provide information to a third party. Complaints, claims, concerns, or questions regarding third-party products or services should be directed to the relevant third party.
7.1. Purchases of Products from Third-Party Services
Please note that you may be able to purchase certain of our products and services from Third-Party Services such as online ecommerce platforms. These Terms do not cover any purchases made from, or other interactions with, Third-Party Services.
7.2. Accuracy of Product Images
We have made every effort to display the images of our products that appear on the Store as accurately as possible. We cannot guarantee that your computer monitor’s display of any color will be accurate.
7.3. Order Acceptance and Billing
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, household, or order. These restrictions may include orders placed by or under the same name, the same credit card, or orders that use the same billing and/or shipping address. If we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail, phone number, or physical address provided when you placed the order. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete and accurate information as requested for all purchases made on our Store. If you have saved your information for future purchases, you agree to promptly update your information, including (if applicable) your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
By confirming your purchase at the end of the checkout process, you agree to accept and pay for the item(s).
7.4. Pricing
Prices are subject to change without notice. We cannot confirm the price of an item until after your order is placed. Pricing errors may occur on the Store. We reserve the right to cancel any orders containing pricing errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from us. We may, in our discretion, either contact you for instructions or cancel your order and notify you of such cancellation. Pricing for products on the Store may differ from pricing for product sold in stores.
7.5. Shipping and Delivery; Title and Risk of Loss
We may not ship to all locations outside of the U.S. For orders that are shipped outside of the U.S., you may be required to pay taxes and duties upon delivery. Knowledge and payment of these fees is your responsibility and we do not reimburse such fees. For more information, please check with your local customs before placing your order.
All items purchased through the Store are made pursuant to a shipment contract. The risk of loss and title for such items pass to you upon our tender of the item to the carrier.
7.6. Refunds and Exchanges
If you are not satisfied with your purchase, we will accept returns and make refunds within 14 days of the initial order for the item you seek to return. While we will strive to provide returns and refunds, excessive or abusive returns or attempted returns will void these Terms and any guarantees on future orders.
8.1. In General
We may communicate with you using email or calls (including using automatic technology or prerecorded voices), at any telephone number that you provide us, to: (a) notify you regarding your use of the Services; (b) troubleshoot problems with the Services; (c) resolve a dispute; (d) collect a debt; or (e) as otherwise necessary to provide the Services to you or enforce these Terms, our policies, applicable law, or any other agreement we may have with you.
E-SIGN Consent. By registering for the Services, you consent to the use of an electronic record to document your agreement. These electronic communications may include notices about your use of the Services and information concerning or related to the Services. You may withdraw your consent to the use of the electronic record by emailing us at [email protected] with “Revoke Electronic Consent” in the subject line. To view and retain a copy of this disclosure or any information regarding your enrollment in this program, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, email us at [email protected] with contact information and the address for delivery. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing, and will have full legal effect.
You also agree that any transaction or agreement undertaken on or through the Services, including your agreement to these Terms, is an electronic transaction or agreement.
We may route phone and text communications through a third-party service provider, and we or the service provider may record telephone conversations you have with us or its agents for quality control and training purposes, or for our own protection or legal compliance purposes.
8.2. SMS Terms
Subject to consents you’ve provided, we may send text messages (“SparkLife Texts”) to communicate with you. You can provide us with your consent to receive SparkLife Texts in multiple ways, such as by providing us with your phone number on our site, through communications or transactions with us (such as by making an appointment), or by opting into receiving SparkLife Texts. By providing consent, you authorize us to use automated or nonautomated technology to send SparkLife Texts to the number associated with your consent. For example, if you make an appointment with us, we may send you appointment reminders via text message. We may send you an initial message confirming your enrollment in SparkLife Texts. SparkLife is not responsible for delayed or undelivered text messages.
By consenting to receive SparkLife Texts, you represent that you are 18 years of age or older and understand the obligations and agree to the terms set forth in these Terms.
While we don’t charge you for SparkLife Texts, message and data rates may apply, so depending on your plan with your wireless or other applicable provider, you may be charged by your carrier or other applicable provider. You may receive multiple, recurring messages. We may terminate our text message programs or your participation in them at any time with or without notice, including, for example, before you have received any or all messages that you otherwise would have received, but these SMS Terms still will apply. You may receive one or more confirmation messages when you opt out or when your participation in the program otherwise ends. We and mobile carriers are not liable for delayed or undelivered messages. For customer service regarding our SMS programs, contact us as provided at the end of these Terms.
You can opt out of SparkLife Texts by replying STOP to a text message from SparkLife. You must separately opt out of each number from which you’ve provided us with consent to receive SparkLife Texts. After we receive your “STOP” text, we may send you confirmation of your opt-out via text message. You may opt into SparkLife Texts again by providing consent as described above, such as by initiating new text message communications with us.
If at any time you intend to stop using the mobile telephone number that has been used to subscribe to text messaging, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the user opt out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these Terms. You further agree that, if you discontinue the use of your mobile telephone number without notifying us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of these Terms or your access to the Services.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
YOUR USE OF OR INABILITY TO USE THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, SPARKLIFE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT.
SPARKLIFE MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, OR THAT ANY ERRORS IN THE SERVICE WILL BE CORRECTED.
YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE SOME OR ALL OF THE SERVICES FOR INDEFINITE PERIODS OF TIME OR CANCEL SOME OR ALL OF THE SERVICES AT ANY TIME, WITHOUT NOTICE TO YOU.
IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH THE SERVICES, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.
CERTAIN LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO CASE WILL SPARKLIFE OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SUPPLIERS, SERVICE PROVIDERS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SPARKLIFE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OF ANY OF THE SERVICES OR ANY PRODUCTS PROCURED USING THE SERVICES, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICES OR ANY PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR DATA, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICES OR ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
IN NO EVENT WILL SPARKLIFE’S TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO SPARKLIFE BY YOU HEREUNDER OR $100.00, WHICHEVER IS GREATER.
IF THE JURISDICTION WHERE YOU RESIDE DOES NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF LIABILITY PROVIDED IN THESE TERMS, THAT LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SPARKLIFE AND YOU.
To the fullest extent allowed by applicable law, you agree to release, indemnify, defend, and hold harmless SparkLife and its officers, directors, employees, affiliates, agents, contractors, suppliers, service providers, and licensors from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Services, your connection to the Services, your violation of these Terms, or your violation of any rights of another.
SparkLife reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with SparkLife in asserting any available defenses. This provision does not require you to indemnify SparkLife for any unconscionable commercial practice by SparkLife or for SparkLife’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of these Terms or your access to the Services, including the purchase of any items on the Services.
If you are a California resident, you waive California Civil Code Section 1542, which provides: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
12.1. Application
You and SparkLife agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
12.2. Initial Dispute Resolution
Most disputes can be resolved without resorting to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at [email protected] and provide a brief, written description of the dispute and your contact information. This written description must be on an individualized basis. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with SparkLife, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. If the parties do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision, you and SparkLife agree to the further dispute resolution procedures below. The parties further agree that any relevant limitations period and filing fees or other deadlines will be tolled while the parties engage in this informal dispute resolution process.
12.3. Binding Arbitration
If the informal dispute resolution procedure does not lead to resolution, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in Section 12.7 below) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or your use of SparkLife shall be finally settled by binding arbitration administered by National Arbitration and Mediation (“NAM”) in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures, and, as applicable, Fees For Disputes When One of the Parties is a Consumer, Comprehensive Fees and Costs, and the Mass Filing Dispute Resolution Rules and Procedures, excluding any rules or procedures governing or permitting class actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at [email protected]
12.4. Arbitrator’s Powers
The arbitrator or arbitration body, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, the question of waiver by litigation conduct, and/or any dispute regarding the payment of administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
12.5. Filing a Demand and Arbitration Procedures
To start an arbitration, you must use the procedures set forth in the applicable NAM rules and send one copy of the Demand for Arbitration to us at: [email protected]. At minimum, your demand must set forth a detailed description of your claim, including information about your relationship to SparkLife, and the amount of any damages you seek to recover.
You and SparkLife will be required to pay fees as assessed by NAM in accordance with the NAM rules and applicable law (including those related to fee waivers). You shall bear own attorneys’ fees and costs in arbitration unless (1) the arbitration rules and/or applicable law provide otherwise; or (2) the Arbitrator finds that either the substance of the dispute or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
The parties agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under applicable NAM rules where it deems appropriate, provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Section 12 while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with the informal dispute resolution procedure contemplated by Section 12.2.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in California, and you and SparkLife agree to submit to the personal jurisdiction of any federal or state court in California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and SparkLife (and each of the parties’ authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
12.6.Class Action Waiver.
YOU AND SPARKLIFE AGREE THAT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS SET OUT OTHERWISE IN THIS SECTION 12.6 AND SECTION 12.8 BELOW, 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 PROCEEDING AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS, UNLESS SPARKLIFE PROVIDES ITS CONSENT TO CONSOLIDATE IN WRITING.
If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
12.7. Exception: Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
12.8. Batch Arbitration
To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM against SparkLife within reasonably close proximity (“Mass Filing”), the parties agree (i) to administer the Mass Filing in batches of 100 demands per batch (to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands) with only one batch filed, processed, and adjudicated at a time; (ii) to designate one arbitrator for each batch; (iii) to accept applicable fees, including any related fee reduction determined by NAM in its discretion; (iv) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior batch of 100 is filed, processed, and adjudicated; (v) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by SparkLife and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; and (vi) that the staged process of batched proceedings, with each set including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved. Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and the arbitrator will determine the location where the proceedings will be conducted. You agree to cooperate in good faith with SparkLife and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM. This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind. Unless SparkLife otherwise consents in writing, SparkLife does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in Section 12.6 above and this Section 12.8. If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled.
If any court or arbitrator determines that the batch arbitration procedures set forth in this paragraph is void or unenforceable for any reason, then the parties agree that this subsection shall be severed from the Section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply all other provisions in this Section to the maximum extent allowed by law.
12.9. 30-Day Right to Opt Out
You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to [email protected] with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of (a) 01/10/2025; or (b) your first use of the Services, whichever is later. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, SparkLife also will not be bound by them.
12.10. Changes to This Section
SparkLife will provide thirty (30) days’ notice of any changes to this Section by posting on the Services. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. Changes to this Section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the Section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Services.
12.11. Survival
This Mandatory Arbitration and Class Action Waiver Section shall survive any termination of your use of the Services.
SparkLife reserves the right at any time to modify, suspend, discontinue, or terminate, temporarily or permanently, some or all of the Services (or any part thereof), with or without notice. You agree that SparkLife shall not be liable to you or any third party for any modification, suspension or discontinuance of the Services.
We do not guarantee that any of our Services will be available at all times or at any given time or that we will continue to offer all or any of our Services for any particular length of time. We may change and update our Services without notice to you. We make no warranty or representation regarding the availability of our Services and reserve the right to modify or discontinue the Services in our sole discretion without notice, including for example, ceasing a contest or other Services for technical reasons (such as technical difficulties experienced by us or on the internet) or to allow us to improve user experience. NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU ACKNOWLEDGE AND AGREE THAT ANY OR ALL OF OUR SERVICES MAY BE TERMINATED IN WHOLE OR IN PART AT OUR SOLE DISCRETION WITHOUT NOTICE TO YOU. YOU ASSUME ANY AND ALL RISK OF LOSS ASSOCIATED WITH THE TERMINATION OF OUR SERVICES.
SparkLife may terminate or suspend your right to access some or all of the Services, without prior notice or liability, if you breach any of the terms or conditions of these Terms or the SparkLife Privacy Policy.
All provisions of these Terms, which by their nature should survive termination, shall survive termination, including, without limitation: Accuracy and Completeness of Information; Not Medical Advice; Intellectual Property Rights; Disclaimer of Warranties; Limitation of Liability; Indemnity; Mandatory Arbitration and Class Action Waiver; Termination; and General.
14.1. Section titles. The section titles in these Terms are for convenience only and have no legal or contractual effect.
14.2. Non-breach. Our failure to comply with these Terms because of an act of God, war, fire, riot, terrorism, earthquake, actions of federal, state or local governmental authorities or for any other reason beyond our reasonable control shall not be deemed a breach of these Terms.
14.3. Non-waiver. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
14.4. Remedies. All remedies under these Terms shall be cumulative and not exclusive.
14.5. Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms of use and shall not affect the validity and enforceability of any remaining provisions.
14.6. No Partnership. You and we acknowledge and agree that no partnership is formed and neither you nor e has the power or the authority to obligate or bind the other.
14.7. Assigment. You may not assign your rights under these Terms to any third party. We may assign our rights under this Terms without condition.
14.8. Entire Agreement. These Terms constitute the entire agreement between you and SparkLife and govern your use of the Services, superseding any prior agreements between you and SparkLife with respect to the Services. You also may be subject to additional terms and conditions that may apply when you use Third Party Services.
14.9. Governing Law and Venue. These Terms will be governed by the laws of Delaware without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and SparkLife agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Delaware.
If you have any questions or concerns about these Terms or the Services, or to report any violations of these Terms, please contact us at [email protected].
