PLEASE READ THE FOLLOWING TERMS AND POLICIES CAREFULLY.
- Website Use Policy
- Acceptable Use Policy
- Information Technology (IT) Security Policy
- SPARK I/T Services Billing Policies
- DOMAIN RESELLER MASTER AGREEMENT
- RESELLER DOMAIN REGISTRATION PRODUCT AGREEMENT EXTENSION
- RESELLER WEB SERVICES PRODUCT AGREEMENT EXTENSION
- RESELLER DIGITAL CERTIFICATES PRODUCT AGREEMENT EXTENSION
- RESELLER HOSTING PRODUCT AGREEMENT EXTENSION
- Warranty Policy
- General Service Policies
Website Use Policy
PLEASE READ THE FOLLOWING TERMS AND POLICIES CAREFULLY. WHEN YOU USE OUR WEBSITE YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS AND POLICIES.
SPARK I/T SERVICES TERMS OF SERVICE
These Terms of Service are hereby effective on and will apply to the website that you are visiting, www.sparkitservices.net (the “Website”), which is owned by SPARK I/T Services (the “Company”).
Illegal or Abusive Usage is Strictly Prohibited: You must not abuse, harass, threaten, impersonate or intimidate other users of our Website. You may not use the Company’s Website for any illegal or unauthorized purpose. International users agree to comply with all local laws regarding online conduct and acceptable content. Should you be found to have engaged in illegal or abusive usage of our Website, Company will suspend your account or usage as applicable.
Electronic Communication: When you visit our Website or send us emails, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email or by posting notices on the Website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Copyright: All content included on this site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Company protected by United States and international copyright laws. The compilation of all content on this site is the exclusive property of the Company and protected by U.S. and international copyright laws. All software used on this site is the property of Company or its software suppliers and protected by United States and international copyright laws.
Trademarks: SPARK I/T Services or www.sparkitservices.net and other Company graphics, logos, page headers, button icons, scripts, and service names are trademarks, registered trademarks or trade dress of Company in the U.S. and/or other countries. Company’s trademarks and trade dress may not be used in connection with any product or service that is not Company’s, in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits Company. All other trademarks not owned by Company that appear on this site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Company.
Your Account: If you use this site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. Company reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion.
Risk of Loss: All items purchased from Company are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
Disclaimer of Warranties and Limitation of Liability: THIS SITE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE ARE PROVIDED BY COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK.
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THIS SITE; INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE; THEIR SERVERS; OR E-MAIL SENT FROM COMPANY ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COMPANY WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Applicable Law: By visiting our website, you agree that the laws of the State of OK, without regard to principles of conflict of laws, will govern these Terms of Service and any dispute of any sort that might arise between you and Company.
Acceptable Use Policy
Use of the internet by employees of SPARK I/T Services is permitted and encouraged where such use supports the goals and objectives of the business. However, SPARK I/T Services has a policy for the use of the internet whereby employees must ensure that they:
- Comply with the current Acceptable Use Policy;
- Use the internet in an acceptable way; and
- Do not create unnecessary business risk to SPARK I/T Services by their misuse of the internet
In particular the following is deemed unacceptable use or behavior by employees:
- Visiting internet sites that contain obscene, hateful, pornographic or otherwise illegal material;
- Using the computer to perpetrate any form of fraud, or software, film or music piracy;
- Downloading commercial software or any copyrighted material belonging to third parties, unless the download is covered or permitted under a commercial agreement or other such license;
- Hacking into unauthorized areas;
- Publishing defamatory and/or knowingly false material about SPARK I/T Services, your colleagues and/or our customers on social networking sites, blogs and any online publishing format;
- Revealing confidential information about SPARK I/T Services in a personal online posting, upload or transmission – including financial information and information relating to our customers, business plans, policies, staff and/or internal discussions;
- Undertaking deliberate activities that waste staff effort or network resources; and
- Introducing any form of malicious software into the network.
Where it is believed that an employee has failed to comply with this policy, he or she will face disciplinary procedure. If the employee is found to have breached the policy, he or she will face a disciplinary penalty ranging from a verbal warning to dismissal. The actual penalty applied will depend on factors such as the seriousness of the breach and the employee’s disciplinary record.
All company employees, contractors or temporary staff who have been granted internet access are required to sign this Acceptable Use Policy confirming their understanding and acceptance of this policy.
Information Technology (IT) Security Policy
This IT Security Policy has been undertaken in order to safeguard sensitive, confidential, and proprietary information that is passed through the network of SPARK I/T Services. The safety and security of such information is vital to the success of SPARK I/T Services and any sensitive information that is compromised would be harmful to SPARK I/T Services and its efforts as an organization. Use of information technology networks by employees of SPARK I/T Services is permitted and encouraged where such use supports the goals and objectives of the organization. However, SPARK I/T Services has a policy for the security of the information that is shared through these networks. Employees must ensure that they:
- Comply with the current IT Security Policy;
- Use information technology networks in an acceptable, safe, and responsible manner; and
- Do not create unnecessary risk to SPARK I/T Services by their misuse of information technology networks.
II. POLICY STATEMENT
All members, employees, guests, and other individuals are responsible for adhering to this IT Security Policy and maintaining the security of proprietary information shared on the information technology networks of SPARK I/T Services. This IT Security Policy is applicable to any individual or entity that gains access to the information technology services of SPARK I/T Services.
III. RESTRICTIVE INTERNET USES
In particular, the following is deemed unacceptable use or behavior by members, employees, and guests of information technology networks:
- Visiting internet sites that contain obscene, hateful, pornographic or otherwise illegal material;
- Using the computer to perpetrate any form of fraud, or software, film or music piracy;
- Downloading commercial software or any copyrighted material belonging to third parties, unless the download is covered or permitted under a commercial agreement or other such license;
- Hacking into unauthorized areas;
- Publishing defamatory and/or knowingly false material about SPARK I/T Services, your colleagues and/or our customers on social networking sites, blogs and any online publishing format;
- Revealing confidential information about SPARK I/T Services in a personal online posting, upload or transmission – including financial information and information relating to our customers, business plans, policies, staff and/or internal discussions;
- Undertaking deliberate activities that waste staff effort or network resources; and
- Introducing any form of malicious software into the network.
IV. COMPANY EMAIL USE
As part of their employment, each employee will be provided with a company email address. The email address shall only be used for business purposes and to further the business interests of SPARK I/T Services. The following activities are deemed unacceptable use of the company’s email system:
- Forwarding or sending email chain letters;
- Sending large files or numerous emails, absent authorization by SPARK I/T Services;
- Checking your company email on your cell phone while operating a motor vehicle;
- Sending unsolicited messages or large group emails, absent authorization by SPARK I/T Services;
- Sharing confidential and sensitive information of SPARK I/T Services to third parties not entitled to knowledge of such information.
Where it is believed that an employee has failed to comply with this policy, he or she will face disciplinary procedure. If the employee is found to have breached the policy, he or she will face a disciplinary penalty ranging from a verbal warning to dismissal. The actual penalty applied will depend on factors such as the seriousness of the breach and the employee’s disciplinary record.
VI. NETWORK USERNAMES AND PASSWORDS
In order to ensure the maximum security of information shared on technology networks, SPARK I/T Services requires that individuals granted access to the network use a unique username and password. Requiring usernames and passwords will minimize security concerns and unauthorized access to information shared on the network of SPARK I/T Services.
All company employees, contractors or temporary staff who have been granted internet access are required to review this IT Security Policy confirming their understanding and acceptance.
SPARK I/T Services Billing Policies
Usage of SPARK I/T Services products and services constitutes customer’s acceptance of SPARK I/T Services’ billing policy. Following is SPARK I/T Services’ billing policy with which all customers must comply:
- All accounts are set up on a postpaid basis. Payment must be received by SPARK I/T Services before any billable product or service is provided/activated. Customers are required to keep a valid credit/debit card on file to charge for recurring monthly subscription fees, fax or voice broadcast service fees and all email overage fees.
- All international customers must pay by credit/debit card. SPARK I/T Services does not accept international checks.
- Subscription billing is based on availability of products and services, not based on usage. However, fax and voice broadcast service fees are usage based. Email overages are billed as an additional charge as well.
- Customers are responsible for keeping all credit/debit card details and contact information current. This can be done online through the Customer Center. To access the Customer Center, customers should login to their SPARK I/T Services web site and click Support and submit to us via ticket any credit card /billing contact changes or updates.”
- All recurring subscriptions are automatically invoiced and charged to the credit/debit card on file.
- Invoice and payment receipts are available to customers upon request or through the Customer Center.
- Credit/Debit Card Billing: All credit/debit cards are automatically charged on the customer’s specific billing cycle date. If the credit/debit card is declined, SPARK I/T Services will attempt to charge the card on file for 30 days.
- All monthly invoices are issued on the first (1st) of each month and are due on the fifteenth (15th) of each month without exception.
- Late Fee: All accounts more than 30 days past due may be assessed a late fee. No fewer than three attempts to contact the customer will be made before any late fee is assessed.
- Delinquent Accounts: All accounts 30 days past due may be disabled until balances are paid in full. When disabled, all access will be suspended and data will be unavailable.
- Deactivation: After an account is delinquent 60 days, it will be cancelled due to nonpayment. Once cancelled, the customer will not be able to recover any files until the account is current. Application data will be stored for 90 days post cancellation. After that, application data will not be available. The account record and delinquent balance will be submitted to a third-party collection service.
- Late Fee: SPARK I/T Services may assess a $15.00 late fee for accounts 30 days past due.
- Chargebacks: If a customer initiates a chargeback, SPARK I/T Services may assess a $50.00 processing fee for each individual chargeback.
- Returned Checks: SPARK I/T Services may assess a $50.00 processing fee on all returned checks.
- Collections Fee: In the event an account is submitted to a third-party collections service, a $15.00 processing fee may be assessed to the existing account balance. This fee is in addition to any other fees previously assessed on the account.
- Interest: Any charges not paid when due are subject to interest at a rate equal to the lesser of: (i) one and one-half percent (1.5%) per month; or (ii) the maximum interest rate allowed by applicable law
SPARK I/T Services Services
To help you succeed and get the most from SPARK I/T Services, The Kickstart Service package is mandatory for new SPARK I/T Services customers. Services must be used within 30 days from the date of purchase. Service fees are nonrefundable. In the event of cancellation, SPARK I/T Services will not prorate any portion of unused service fees, and all outstanding invoices must be paid in full.
Invoices are generated and payments are collected at the beginning of each billing period. Customer billing periods typically begin on the day of the month in which customers purchase their SPARK I/T Services subscription. Customers may cancel their subscriptions at any time. In the event of cancellation, customers will still have access to their applications through the end of their current billing period. SPARK I/T Services will not prorate any portion of unused subscription services. All subscription fees are nonrefundable.
SPARK I/T Services accepts payments via credit/debit card. Payment by any other means, such as by check, is on a per-customer basis and must be agreed to by SPARK I/T Services. Checks must be paid in U.S. dollars and issued from a U.S. bank. Payment by check is acceptable only for prepayment of six or twelve months of subscription services. SPARK I/T Services currently accepts American Express, MasterCard, Discover, and Visa credit/debit cards. We also accept PayPal
Cancellations must be done verbally through an SPARK I/T Services representative. Email requests to cancel do not constitute acceptance of any cancellation. Only verbal requests made with an SPARK I/T Services representative will create a cancellation request. Customers are encouraged to keep records of all cancellation communication. Cancellations will take effect on the last day of the billing period in which the cancellation request was received.
Closing an account with SPARK I/T Services cannot be done by simply canceling the credit/debit card. SPARK I/T Services will continue to treat this as an open account and the billing cycle will continue, resulting in a past due account that may be turned over to a thirdparty collection service. It is imperative that account cancellation is done by speaking with an SPARK I/T Services representative to ensure account closure.
Cancellation of an account does not dismiss outstanding invoices. At the time of cancellation, any outstanding balance must be settled. All cancelled accounts with an outstanding balance may be automatically turned over to a third-party collection service.
As a current or prior customer of SPARK I/T Services, each customer agrees to provide SPARK I/T Services 30 days to attempt settlement of any billing dispute before disputing with any third-party credit/debit card company or bank. SPARK I/T Services must be the first option in billing disputes. Should SPARK I/T Services receive a chargeback from a thirdparty credit/debit card company or bank on the customer’s behalf before SPARK I/T Services has been given a chance to resolve the issue, SPARK I/T Services has the right to collect on the rendered services and any fees associated with those disputes. Regardless of the outcome of the chargeback, SPARK I/T Services retains the right to collect on any rendered services or fees that are due. SPARK I/T Services will submit any disputed amounts to a collection agency. Once a chargeback has been received, SPARK I/T Services will immediately suspend the account until the matter is resolved.
Subscription and Service fees are nonrefundable.
SPARK I/T Services, LLC.
SPARK I/T Services, LLC. may be referred to herein as “SPARK”, “WE” OR “US”, whether in uppercase, lowercase, or a combination.
Capitalized terms not defined herein are defined in Our Terms.
Information Collection and Use
You can generally visit a SPARK Platform without revealing any personally identifiable information about Yourself. However, in certain sections of a SPARK Platform and when You use our Services, including as a subscriber, we may invite You to contact us with questions or comments or request information, provide or upload documents and other Content (for example, links to Your blog), contact us with feedback, participate in surveys, questionnaires, or contests, recommend or rate Content, or complete a registration form. Due to the nature of some of these activities, we may collect personally identifiable information that You submit, such as Your email address, credit card information, gender, school, photo, age, phone number, postal address, city, and occupation. We may also collect additional personally identifiable information that You voluntarily include in Your profile or Your blog or transmit with Your communications to us. If You are a registered user, (i) You may be able to send a request to add friends to Your network and send them messages and we may collect their personally identifiable information that You use to contact them and (ii) other users may be able to view who has posted (for registered users), recommended, or rated certain Content or documents and may be able to comment on or rate the documents and other Content You have posted to the Site (if they are registered users). Additionally, other users may be able to view information about the documents You have posted, such as the most recently posted documents and highest rated documents and we and other users may modify the tags or categories of the documents and other Content You have posted to a SPARK Platform (which will be associated with Your username if You are a registered user).
We may use Your personally identifiable information to register You to use a SPARK Platform or and Services; to deliver certain services; to provide notices regarding services or documents You have purchased or licensed; to verify Your authority to enter or utilize a SPARK Platform or Service; to improve the Content and general administration of a SPARK Platform and our Services and display targeted advertising on or through a SPARK Platform; and to contact You, including by email or telephone. We may use Your email address, physical address, telephone number, and SPARK messaging system to contact You, without further consent, for administrative communications, to address copyright infringement or defamation or other violations of Terms of Service issues, or to contact You regarding Your membership, subscription, or any Content that You have posted to or downloaded from the Site. Users will receive SPARK registration emails when they register, Ask or Ask SPARK personnel will receive communications relating to Your questions or request, Users may receive updates and notices about questions they are asking or answering, other posts, Your accounts, and new features and policies; these communications are considered part and parcel of Your service and You may not be able to opt out of them. SPARK may contact You about new services, special offers, promotions, and third-party / affiliate offers, and will include in any such emails an opt-out link by which You can opt out of receiving such emails. Our customer care and other departments may contact You and referral participants to attempt to address Your satisfaction with SPARK and/or to ask how we can improve. SPARK or its agents may contact You, including by telephone or email, including after Your SPARK account has terminated or expired, and Your agreement to the Terms constitutes Your request that SPARK contact and communicate with You, including by traditional mail, private courier, telephone (land and mobile), email, texts, or through social media such as Facebook, Twitter, Google+, YouTube, Vimeo, and various blogs.
We may use and disclose Your information if we believe, in good faith, that it is appropriate or necessary to take precautions against liability; to protect SPARK from fraudulent, abusive, or unlawful uses; to investigate and defend ourselves against third-party claims or allegations; to assist government enforcement agencies; to protect the security or integrity of a SPARK Platform; or to protect the rights, property, or personal safety of SPARK, our Users, or others. We may disclose User information to affiliated companies or other businesses or persons to provide web site hosting, maintenance, and security services; fulfill orders; conduct data analysis and create reports; offer certain functionality; and assist us in improving the SPARK Platforms and Services, and in creating new services and features.
SPARK recognizes the privacy interests of children and we encourage parents and guardians to take an active role in their children’s online activities and interests. No SPARK Platform is intended for children under the age of 13. SPARK does not target its Services or Platforms to children under 13. SPARK does not knowingly collect personally identifiable information from children under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS ANY SPARK PLATFORM AT ANY TIME OR IN ANY MANNER. IF SPARK LEARNS THAT PERSONALLY-IDENTIFIABLE INFORMATION OF PERSONS LESS THAN 13 YEARS OF AGE HAS BEEN COLLECTED ON OR THROUGH A SPARK PLATFORM, SPARK WILL TAKE THE APPROPRIATE STEPS TO DELETE THIS INFORMATION.
IF YOU ARE THE PARENT OR LEGAL GUARDIAN OF A CHILD UNDER 13 WHO HAS BECOME A SPARK SUBSCRIBER, THEN PLEASE CONTACT SPARK AT PRIVACY_at_SPARK_dot_COM TO HAVE THAT CHILD’S ACCOUNT TERMINATED AND INFORMATION DELETED. THE FOLLOWING ARE SOME RESOURCES THAT MAY HELP PARENTS AND LEGAL GUARDIANS IN MONITORING AND LIMITING YOUR CHILDREN’S ACCESS TO CERTAIN TYPES OF MATERIAL ON THE INTERNET. WHILE SPARK DOES NOT ENDORSE THESE SITES, SERVICES, OR PRODUCTS, AND DISCLAIMS ANY RESPONSIBILITY IN CONNECTION WITH THEM, WE PROVIDE INFORMATION ABOUT THEM AS A PUBLIC SERVICE.
- OnGuard Online, maintained by the Federal Trade Commission.
- The Child Safety Network
- Control Kids
- Cyber Sitter
- Net Nanny
Cookies, Pixels, and Web Beacons
When You use or access a SPARK Platform, we may use small text files containing a string of alphanumeric characters called cookies to improve overall Site experience, among other things. A cookie is a piece of data stored on the user’s hard drive or browser containing information about the user. Information from cookies alone generally do not provide us with information to personally identify You. SPARK may use both session cookies and persistent cookies. A session cookie generally disappears after You close Your browser. A persistent cookie remains after You close Your browser and may be used by Your browser on subsequent visits to a SPARK Platform or other web sites. Persistent cookies can generally be removed by You. Please review Your web browser “Help” file to learn the proper way to modify Your cookie settings and to remove cookies. We may also use pixels or web beacons on our Platform and in emails that we send to You. (See, e.g.,http://en.wikipedia.org/wiki/Web_beacons .) we may collect information regarding your activity on a particular web-page, pages visited, searches performed, documents and profiles viewed, documents downloaded, documents uploaded, reviews, and comments made.
Automatically Collected Information
When You access a SPARK Platform or open one of our HTML emails, we may automatically record certain information from You or Your system by using different types of tracking technology, including server logs. This “automatically collected” information may include Internet Protocol address (“IP Address”), a unique device or user ID, version of software installed, system type, browser used, the Content and pages that You access on or through a SPARK Platform, the dates and times that You visit a SPARK Platform, documents and other Content that You searched for, viewed, uploaded, downloaded, printed, emailed, saved, the documents You have started to complete or did complete using Doc Complete (aka SPARK Custom Documents), messages sent to and received from SPARK and other SPARK users using the SPARK messaging system, as well as any questions you might have asked and answers you might have received using the ASK or ASK SPARK Service, as well as advertisements that You moused over or clicked on, and information from Your Facebook account that You make publicly available, which is provided to us by Facebook via the Facebook application programming interface (“API”). Like most websites, our servers automatically record the page requests made when You visit our SPARK Platform sites. These “server logs” typically include Your web request, Internet Protocol address, browser type, browser language, the date and time of Your request, and one or more cookies that may uniquely identify Your browser.
A SPARK Platform may track the total number of visitors to a SPARK Platform, the number of visitors to each page of a SPARK Platform, browser or device type, and IP addresses, and we may analyze this data for trends and statistics in the aggregate, but such information will be maintained, used, and disclosed in aggregate form only and it will not contain personally identifiable information. We may use such aggregate information to analyze trends, administer a SPARK Platform, track users’ movement, and gather broad demographic information for aggregate use.
We may provide Your personally identifiable information and the data generated by cookies, web beacons, logs, and the aggregate information to the vendors and service agencies that we may engage to assist us in providing our Platforms, Services, advertising, and any other product and/or service to You. Such third-party entities may be obligated to use Your personally identifiable information to provide the services to us. We will disclose Your personally identifiable information if we reasonably believe we are required to do so by law, regulation or in cooperation with any governmental investigation, including upon receipt of what we believe may be a valid subpoena, whether issued by a Court that has jurisdiction over SPARK or not. (Please note that SPARK reserves the absolute right to assert that only the Federal District Court of the Central District of California, and the Los Angeles County Superior Court have jurisdiction over SPARK, and subpoenas from outside these two jurisdictions must be “domesticated,” though we are not obligated to do so.) We will not sell Your personally identifiable information to any company or organization, however, we may transfer Your personally identifiable information to a successor entity upon a merger, consolidation, or other corporate reorganization in which SPARK participates or to a purchaser of all or substantially all of SPARK’S assets to which a SPARK Platform or Service relates.
Disclosure of Documents Viewed, Downloaded or Printed, SPARK Account Information, and other Information:
Under certain circumstances We may disclose the Content (documents) viewed, downloaded, or printed, SPARK Account information, and other information. Typically those circumstances include when someone questions or disputes a charge, transaction, or having subscribed to a SPARK Platform or Service. If a credit card or PayPal account holder questions or disputes a charge we may disclose the history of Content (documents) viewed, downloaded, or printed, as well as the internet protocol (IP) addresses the purported credit card or PayPal account holder logged in to a SPARK Platform from, and dates and times of logging in, and certain information pertaining to the SPARK account, such as the email address provided by the SPARK account holder. We may disclose this information to: the SPARK or credit card or PayPal account holder, if such person provides us with sufficient information for us to reasonably verify that such person is one of the actual SPARK or credit card or PayPal account holders; someone acting on behalf of the actual SPARK or credit card or PayPal account holder(s), if such person provides us with sufficient information for us to reasonably verify that such person is acting on behalf of the actual SPARK or credit card or PayPal account holder(s); or Our transaction and payment processors and any service that facilitates Our transaction and payment processing. Furthermore, You should be aware that if anyone shares the SPARK account that You use, or accesses that SPARK account, they may be able to view what Content was viewed, downloaded, printed, uploaded, searched for, saved, emailed, forwarded, the documents You have started to complete or did complete using Doc Complete (aka SPARK Custom Documents), messages sent to and received from SPARK and other SPARK users using the SPARK messaging system, as well as any questions you might have asked using the ASK or ASK SPARK Service, through that SPARK Account or while logged in to a SPARK Platform using that SPARK Account.
When You create a SPARK account, some information about Your account and Your account activity may be provided to other SPARK users. This may include the date You opened Your account, the date You last logged into Your account, Your age (if You choose to make it public), and the number of documents You have downloaded and, what You have downloaded and uploaded, and what You have viewed, and SPARK may view the Content of those documents. Your SPARK account name, not Your email address, may be displayed to other users when You engage in certain activities on a SPARK Platform. Other users may be able to contact You by using the SPARK messaging system or by commenting on a SPARK Platform. Any documents that You submit may be redistributed through the internet and other media channels and may be viewed by other SPARK users or the general public. You may also choose to add personal information, which may include Your name, gender, profile picture, or other details, such as company name and Your job title, that may be visible to other users on Your SPARK account page. We may provide Your company name and Your job title (if You elected to complete those sections of Your user profile) to third-parties, such as advertising networks and other companies.
We may provide Your personally identifiable information and the data generated by cookies, pixels, and web beacons, and the aggregate information to the vendors and service agencies that we may engage to assist us in providing our Platform and Services to You. Such third-party entities may be obligated to use Your personally identifiable information solely to provide the services to us. We will disclose Your personally identifiable information if we reasonably believe we are required to do so by law, regulation, or in cooperation with any governmental investigation. We will not sell Your personally identifiable information to any company or organization except we may transfer Your personally identifiable information to a successor entity upon a merger, consolidation, or other corporate reorganization in which SPARK participates or to a purchaser of all or substantially all of SPARK’S assets to which this Site relates.
Links to Third-Party Sites/Opt-Out for Non-PII Collection for Network Services
We use third-party advertising companies and advertising networks to serve advertisements to You on our behalf when You visit our Website, and to optimize advertisements. These, and other companies may use information (typically not including Your name, address, email address, or telephone number, but sometimes including Your company name and job title gathered from Your SPARK profile information) about Your visits to a SPARK Platform and other Websites in order to provide advertisements about goods and services of interest to You, as well as to provide us with information that is intended to make our Platforms and Services better, and for other business reasons. They, or we, may do this by using cookies, pixels, and web beacons, among other things. (See, e.g.,http://en.wikipedia.org/wiki/Web_beacons .) see this link ( http://www.sparkitservices.net) for additional information regarding these sites, services, technologies, and tools, their privacy policies (which we encourage You to read), and how You may opt-out of the uses of such technologies. Although we may attempt to contractually limit what third-party advertising companies and networks do, we have no ability to monitor or control what they do. In the past, some advertising companies and networks have been sued for allegedly using what are called “local shared objects” or “respawning cookies” (including by using Adobe® flash cookies). Although we attempt to contractually require that these companies shall always allow the end-user (You) to easily and completely uninstall any means of tracking the end-user without regenerating the means of such tracking, we cannot assure that this will occur and, therefore, You consent to these types of practices. If You would like more information about what many advertising companies and advertising networks do and to know some of Your choices about not having this information used by the companies that are member of the Network Advertising Initiative, please visit http://www.networkadvertising.org/optout_nonppii.asp. We cannot assure that all of our third-party advertising companies and advertising networks are members of the network advertising initiative, or that they comply with the policies of the network advertising initiative.
We may employ procedural and technological security measures that are reasonably designed to help protect Your personally identifiable information from loss, unauthorized access, disclosure, alteration, or destruction. SPARK may use encryption, password protection, and other security measures to help prevent unauthorized access to Your personally identifiable information. YOU ARE RESPONSIBLE FOR MAINTAINING THE SECRECY OF YOUR UNIQUE PASSWORD AND ACCOUNT INFORMATION AT ALL TIMES. WE CANNOT, HOWEVER, ENSURE OR WARRANT THE SECURITY OF ANY INFORMATION YOU TRANSMIT TO US, AND YOU DO SO AT YOUR OWN RISK. ONCE WE RECEIVE YOUR TRANSMISSION OF INFORMATION, WE MAKE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THE SECURITY OF OUR SYSTEMS. HOWEVER, PLEASE NOTE THAT THIS IS NOT A GUARANTEE THAT SUCH INFORMATION MAY NOT BE ACCESSED, DISCLOSED, ALTERED, OR DESTROYED BY BREACH OF ANY OF OUR PHYSICAL, TECHNICAL, OR MANAGERIAL SAFEGUARDS. IF WE LEARN OF A SECURITY SYSTEMS BREACH, THEN WE MAY ATTEMPT TO NOTIFY YOU ELECTRONICALLY SO THAT YOU CAN TAKE APPROPRIATE PROTECTIVE STEPS. WE MAY POST A NOTICE ON A SPARK PLATFORM IF A SECURITY BREACH OCCURS. DEPENDING ON WHERE YOU LIVE, YOU MAY HAVE A LEGAL RIGHT TO RECEIVE NOTICE OF A SECURITY BREACH IN WRITING.
Notice to European Users
Correction/Updating Personally Identifiable Information
DOMAIN RESELLER MASTER AGREEMENT
This Reseller Master Agreement (hereinafter referred to as the “Agreement”) is made, entered into and executed on July 16, 2014 (hereinafter referred to as the “Effective Date”)
SPARK I/T Services (hereinafter referred to as “Parent”) and you (hereinafter referred to as “Reseller”). If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the term “Reseller” shall refer to such entity.
(The Parent and the Reseller may be referred to individually as a “Party” and collectively as the “Parties”).
WHEREAS the Parent provides various Products and Services;
AND WHEREAS the Reseller wishes to purchase and resell Parent’s Products and Services
NOW, THEREFORE, for and in consideration of the mutual promises, benefits and covenants contained herein and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the Parent and the Reseller, intending to be legally bound, hereby agree as follows:
(1) “Accounting Currency” refers to the Accounting Currency of the Parent within the OrderBox Database.
(2) “Advance Account” refers to the credit balance maintained by the Reseller with the Parent.
(3) “Agreement” refers to this Reseller Master Agreement alongwith all its appendices, extensions and amendments at any given point in time.
(4) “Business Day” refers to a working day between Monday to Friday excluding all Public Holidays.
(5) “Available Balance” refers to credit in the Advance Account after deducting any accrued liabilities, Locked Funds and debited amounts.
(6) “Confidential Information”, as used in this Agreement shall mean all data, information and materials including, without limitation, computer software, data, information, databases, protocols, reference implementation, documentation, functional and interface specifications, provided by Parent to the Reseller under this Agreement, whether written, transmitted, oral, through the Parent Website or otherwise, that is marked as Confidential.
(7) “Customer” refers to the customer of the Order as recorded in the OrderBox Database.
(8) “Parent Products” refer to all products and services of Parent which it has provided/rendered/sold, or is providing/rendering/selling through this Reseller Program.
(9) “Parent Servers” refer to Web Servers, Mailing List Servers, Database Servers, OrderBox Servers and any other Machines / Servers that Parent or its Service Providers Operate, for the OrderBox, the Parent Website, the Parent Mailing Lists, Parent Products and any other operations required to fulfill services and operations of Parent.
(10) “Parent Website” refers to cp.sparkitservices.net.
(11) “OrderBox” refers to the set of Servers, Software, Interfaces, Parent Products and API that is provided for use directly or indirectly under this Agreement by the Parent and/or its Service Providers.
(12) “OrderBox Database” is the collection of data elements stored on the OrderBox Servers.
(13) “OrderBox Servers” refer to Machines / Servers that Parent or its Service Providers maintain to fulfill services and operations of the OrderBox.
(14) “OrderBox User” refers to the Reseller and any Customer, Sub-Reseller, Agent, Employee, Contractee of the Reseller or any other Legal Entity, which has been provided access to the “OrderBox” by the Reseller or through the Reseller’s website, directly or indirectly.
(15) “Locked Funds” refers to the amount of funds temporarily debited to the Resellers Advance Account while an Order is being Modified, Deleted, Extended, Cancelled or Processed. “Confirming Locked Funds” refers to the act of permanently debiting this amount to the Reseller’s Advance Account. “Canceling Locked Funds” refers to the act of recrediting the amount back to the Reseller’s Advance Account.
(16) “Lower Tier Sub-Resellers” – The Reseller may make Parent Products under this agreement available to Sub-Resellers. Further the Reseller agrees that such Sub-Resellers may make Parent Products available to their affiliates, partners, or resellers who may make Parent Products available to their affiliates, partners or resellers and so on (collectively known as “Lower Tier Sub-Resellers”).
(17) “Order” refers to a Parent Product purchased directly or indirectly by a Reseller, having a unique Order ID in the OrderBox Database.
(18) “Reseller Contact Details” refers to the Contact Details of the Reseller as listed in the OrderBox Database.
(19) “Reseller Control Panel” refers to the set of Web-based interfaces provided by the Parent and its Service Providers to the Reseller which allows him to Manage Orders, Customers and Lower Tier Resellers.
(20) “Reseller Master Agreement” refers to this Agreement. (21) “Reseller Product Agreement Extension” refers to the latest version of a Specific Reseller Product Agreement Extension as posted in the Reseller Control Panel or on the Parent Website.
(22) “Reseller Transactions” refers singly and cumulatively to credits/debits applied to the Resellers Advance Account.
(23) “Selling Currency” refers to the Selling Currency of the Parent within the OrderBox Database.
(24) “Service Providers” refers individually and collectively to any Artificial Juridical Persons, Company, Concern, Corporation, Enterprise, Firm, Individual, Institute, Institution, Organization, Person, Society, Trust or any other Legal Entity that Parent or its Service Providers (recursively) may, directly or indirectly, Engage / Employ / Outsource / Contract for the fulfillment / provision / purchase of Parent Products, OrderBox, and any other services and operations of Parent.
(25) “ICANN” is the Internet Corporation for Assigned Names and Numbers.
(26) “Sub-Reseller” refers to any Artificial Juridical Persons, Company, Concern, Corporation, Enterprise, Firm, Individual, Institute, Institution, Organization, Person, Society, Trust or any other Legal Entity that is registered as a Sub-Reseller under the Reseller as per the data in the OrderBox Database, or who resells Parent Products through the Reseller.
(27) “Prohibited Persons (Countries, Entities, and Individuals)” refers to certain sanctioned countries (each a “Sanctioned Country”) and certain individuals, organizations or entities, including without limitation, certain “Specially Designated Nationals” (“SDN”) as listed by the government of the United States of America through the Office of Foreign Assets Control (“OFAC”), with whom all or certain commercial activities are prohibited. If you are located in a Sanctioned Country or your details match with an SDN entry, you are prohibited from registering or signing up with, subscribing to, or using any service of Parent.
2. RESELLER PRODUCT AGREEMENT EXTENSIONS
(1) The Reseller may purchase and resell various Parent Products by executing, in a form and manner prescribed by Parent, one or more Reseller Product Agreement Extensions, which shall then be included as a part of this Agreement.
(2) Any conflicting definitions, terms and conditions in a Reseller Product Agreement Extension shall take precedence over the same definition, terms and conditions in this Agreement, and shall be applied only to that Reseller Product Agreement Extension.
(3) The Reseller agrees to adhere to the SiteLock Terms and Conditions, available at https://www.sitelock.com/terms.php, that are incorporated herein and made a part of this Agreement by reference.
3. OBLIGATIONS OF THE PARENT
(1) Parent shall make available the latest versions of the Reseller Master Agreement, and the Reseller Product Agreement Extensions in the Reseller Control Panel.
(2) Parent will notify the Reseller via email whenever newer versions of any Reseller Master Agreement or Reseller Product Agreement Extensions are posted in the Reseller Control Panel.
4. OBLIGATIONS OF THE RESELLER
(1) The Reseller shall be responsible for providing customer service, billing support, and technical support to their Sub-Resellers, Lower Tier Sub-Resellers & Customers.
(2) The Reseller acknowledges that in the event of any dispute and/or discrepancy concerning any data element of an Order, Sub-Reseller, Lower Tier Sub-Reseller or Customer in the OrderBox Database, the data element in the OrderBox Database records shall prevail.
(3) The Reseller acknowledges that all information of the Customer in the OrderBox, including authentication information is accessible to Parent and its Service Providers
(4) The Reseller will not make any changes to any information or configuration of an Order without explicit authorization from the customer of that Order
(5) The Reseller shall comply with all other terms or conditions established by Parent and/or its Service Providers from time to time.
(6) Reseller acknowledges that Parent Products may be obtained through Service Providers, and as such, changes in structure, or contracts may occur, and as a result services may be adversely affected. Reseller acknowledges and agrees that Parent shall not have any liability associated with any such occasion.
(7) The Reseller agrees that Parent Products under this agreement may be made available to Customers, Sub-Resellers and Lower Tier Sub-Resellers only after they enter into a legally binding agreement which is no less protective of Parent than this Agreement and which contains the requirements contained herein applicable to the Reseller. The Reseller acknowledges and agrees that the Reseller will be responsible for ensuring Customers’, Sub-Resellers’ and Lower Tier Sub-Resellers’ compliance with such applicable terms and conditions and shall be responsible for any liability resulting from Customers’, SubResellers’ and Lower Tier Sub-Resellers’ noncompliance with such terms and conditions.
(8) The Reseller agrees to provide, maintain and update, current, complete and accurate information for all the data elements about the Reseller in the OrderBox Database.
(9) During the term of this Agreement and for three years thereafter, Reseller (himself/herself/itself or by its Agent / Authorised Representative) shall maintain the following records relating to its dealings with Parent, Sub-Resellers, Customers, Prospective Customers and/or their Agents or Authorized Representatives:-
(10) Any registration agreement used by reseller shall include all registration agreement provisions and notices required by the ICANN Registrar Accreditation Agreement and any ICANN Consensus Policies, and shall identify the sponsoring registrar or provide a means for identifying the sponsoring registrar, such as a link to the InterNIC Whois lookup service.
(11) Reseller shall identify the sponsoring registrar upon inquiry from the customer.
(12) Reseller shall ensure that the identity and contact information provided by the customer of any privacy or proxy registration service offered or made available by reseller in connection with each registration will be deposited with Registrar or, alternatively, display a conspicuous notice to such customers at the time an election is made to utilize such privacy or proxy service that their data is not being escrowed by the Registrar.
(13) Reseller shall provide a link to the ICANN webpage that identifies available registrant rights and responsibilities on the site where the Reseller operates for domain name registration or renewal http://www.icann.org/en/resources/registrars/registrant-rights-responsibilities and shall not take any action inconsistent with the corresponding provisions of this Agreement or applicable law.
(14) Reseller acknowledges, agrees and ensures that the Registrant accepts the “Registrar Registrant Agreement” before purchasing domain names. The Reseller shall display the “Registrar Registrant Agreement” before collecting payment from the Registrant.
(15) Reseller agrees to display domain registration, renewal, transfer and restore fee on its website for all the TLD’s offered by them during the term of this Agreement.
(16) Reseller agrees that it will display the communication and notification methods on their website to communicate with the Registrant. Reseller shall include domain pre and post expiry notice details and how the registrant will be informed about expiring domains. Reseller will ensure that the Registrant contact for expiring domain names will receive renewal reminders atleast 30 days and 7 days before expiry. A third reminder will also be sent immediately after the domain name expires.
(17) Reseller has to comply with any ICANN-adopted Specification or Policy that establishes a program for accreditation of individuals or entities who provide proxy and privacy registration services. Reseller agrees that proxy and privacy registration services may only be provided in respect of domain name registrations by individuals or entities Accredited by ICANN pursuant to their Proxy Accreditation Program. Until such time as the Proxy Accreditation Program is established, Resellers shall comply with the Privacy and Proxy Registrations specifications outlined by ICANN at http://www.icann.org/en/resources/registrars/raa/approved-with-specs-27jun13-en.htm#privacyproxy.
(18) Reseller agrees to comply and co-operate with the Parent for any Audit programs initiated and conducted by the Parent to ensure compliance to the obligations mentioned above. The Resellers chosen for the Audit program will be given a reasonable notice, at least 15 days, to provide requested data for verification. Resellers who fail the Audit program will be given an opportunity to fix the deficiencies before any escalated action is taken by the Parent. Failure to fix the deficiencies within a reasonable time allotted by the Parent may result in suspension of the Reseller account and subsequent termination of the Agreement.
5. REPRESENTATIONS AND WARRANTIES
Parent and the Reseller represent and warrant that:-
(1) They each have all requisite power and authority to execute, deliver and perform their obligations under this Agreement;
(2) This Agreement has been duly and validly executed and delivered and constitutes a legal, valid and binding obligation, enforceable against the Reseller and Parent in accordance with its terms;
(3) The execution, delivery, and performance of this Agreement and the consummation by Parent and the Reseller of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate:-
(1) any provision of law, rule, or regulation;
(2) any order, judgment, or decree;
(3) any provision of corporate by-laws or other documents; or
(4) any agreement or other instrument.
(4) the execution, performance and delivery of this Agreement has been duly authorized by the Reseller and Parent;
(5) No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made in connection with the execution, delivery, and performance of this Agreement or the taking of any other action contemplated hereby;
The Reseller represents and warrants that:
(1) the Reseller has read and understood every clause of this Agreement
(2) the Reseller has independently evaluated the desirability of the service and is not relying on any representation agreement, guarantee or statement other than as set forth in this agreement; and
(3) the Reseller is eligible, to enter into this Contract according to the laws of his country.
6. RIGHTS OF PARENT AND SERVICE PROVIDERS
(1) Parent and Service Providers may change any information, including Authentication Information of the Reseller in the OrderBox Database upon receiving authorization from the Reseller or any authorized representatives of the Reseller in any form as maybe prescribed by Parent from time to time.
(2) Parent and Service Providers may provide/send any information in the OrderBox Database, about the Reseller, including Authentication information
(1) to the Reseller Contact Details
(2) to any authorized representative, agent, contractee, employee of the Reseller upon receiving authorization in any form as maybe prescribed by Parent from time to time
(3) to the Service Providers
(3) Parent and Service Providers in its own discretion can at any point of time temporarily or permanently cease to sell a Parent Product
(4) Parent may provide/send any information in the OrderBox Database, about the OrderBox Users, Customers, Sub-Resellers and Lower Tier Sub-Resellers including Authentication Information, to the contact details of the OrderBox Users, Customers, Sub-Resellers and Lower Tier Sub-Resellers in the OrderBox Database, or to the authorized representative, agent, contractee, employee of the corresponding OrderBox Users, Customers, Sub-Resellers and Lower Tier Sub-Resellers upon receiving authorization in any form as maybe prescribed by Parent from time to time.
(5) Parent reserves the right to change pricing, minimum order levels, and discounts, of any Parent Product , at any time.
(6) Parent reserves the right to introduce promotional marketing schemes for any Parent Product at anytime. Parent make it mandatory upon Reseller and Lower Tier Sub-Resellers to participate in such a promotional marketing scheme provided that the program shall only be mandatory for Reseller and those Lower Tier Sub-Resellers who have signed up for the said Parent Product.
(7) Parent and Service Providers, in their sole discretion, expressly reserve the right to deny any Order or cancel an Order within 30 days of processing the same. In such case Parent may refund the fees charged for the Order, after deducting any processing charges for the same.
(8) Parent and Service Providers, in their sole discretion, without notice, expressly reserve the right to to fix any bugs in, modify, upgrade, freeze the OrderBox, Parent Products and its associated services. Parent in its sole discretion, without notice, expressly reserves the right to modify the content on any page within the OrderBox and Parent product interfaces, including but not limited to marketing content, images, html, styles, pricing information and any other information, Reseller acknowledges that actions described in this paragraph may occur without notification or knowledge of the Reseller. Parent will not be held responsible or liable for any such changes under any circumstance.
(9) Notwithstanding anything to the contrary, Parent and Service Providers, in their sole discretion, expressly reserve the right to without notice or refund, acccess, delete, suspend, deny, cancel, modify, intercept and analyze traffic of, copy, backup, access data of, redirect, log usage of, monitor, limit access to, limit access of, take ownership of or transfer any Order, or to delete, suspend, freeze, modify OrderBox Users’ access to OrderBox, or to modify, upgrade, suspend, freeze OrderBox, or to publish, transmit, share data in the OrderBox Database with any person or entity, or to contact any entity in the OrderBox Database, in order to recover any Payment from the Reseller for any service rendered by the Parent including services rendered outside the scope of this agreement for which the Reseller has been notified and requested to remit payment, or to publish, transmit, share data in the OrderBox Database with any person or entity, or to contact any entity in the OrderBox Database, or to correct mistakes made by Parent or its Service Providers in processing or executing an Order, or in case of any breach or violation or threatened breach or violation of this Agreement, or in case Parent learns of a possibility of breach or violation of this Agreement which Parent in its sole discretion determines to be appropriate, or incase of Termination of this Agreement, or if Parent learns of any such event which Parent reasonably determines would lead to Termination of this Agreement or would constitute as Breach thereof, or to protect the integrity and stability of the Parent Products and the OrderBox, or to comply with any applicable laws, government rules or requirements, requests of law enforcement, or in compliance with any dispute resolution process, or in compliance with any agreements executed by Parent, or to avoid any liability, civil or criminal, on the part of Parent and/or Service Providers, as well as their affiliates, subsidiaries, officers, directors and employees, or if the Reseller and/or its Customers, Sub-Resellers, Lower Tier Sub-Resellers or any other authorized representatives of the Reseller violate any applicable laws/government rules/usage policies, including but not limited to, intellectual property, copyright, patent or Parent learns of the possibility of any such violation, or upon authorization from the Reseller in any manner that Parent deems satisfactory, or for any other appropriate reason. The Reseller agrees that Parent and Service Providers, and the contractors, employees, directors, officers, representatives, agents and affiliates, of Parent and Service Providers, are not liable for loss or damages that may result from any of the above.
(10) In case of Orders involving web services, Parent and Service Providers can choose to redirect any Order to any IP Address including, without limitation, to an IP address which hosts a parking page or a commercial search engine for the purpose of monetization, if an Order has expired, or is suspended, or does not contain valid information to direct it to any destination. Reseller acknowledges that Parent and Service Providers cannot and do not check to see whether such a redirection, infringes any legal rights including but not limited to intellectual property rights, privacy rights, trademark rights, of Reseller, or that the content displayed due to such redirection is inappropriate, or in violation of any federal, state or local rule, regulation or law, or injurious to Reseller or any third party, or their reputation and as such is not responsible for any damages caused directly or indirectly as a result of such redirection.
(11) Parent has the right to rectify any mistakes in the data in the OrderBox Database with retrospective effect.
(12) Parent and Service Providers reserve the right to prohibit the use of any of their services in connection with any Country-Code Top Level Domain Name (“ccTLD”) of any Sanctioned Country.
(13) Parent and Service Providers, in their sole discretion, expressly reserve the right to terminate access to the Reseller Control Panel, Sub-Reseller Control Panel and Customer Control Panel and/or suspend an Order without prior notice, and/or delete an Order without issuing a refund, if the associated Reseller/Sub-Reseller/Customer/Domain Contact is located in a Sanctioned Country or his/her details, existing or modified, match with an SDN entry. The Reseller agrees that Parent and Service Providers, and the contractors, employees, directors, officers, representatives, agents and affiliates, of Parent and Service Providers, are not liable for loss or damages that may result from any of the above.
7. TERM OF AGREEMENT AND RENEWAL
The term of this Agreement shall be 2 (TWO) YEARS from the Effective Date and will automatically renew for successive 1 (ONE) YEAR Renewal Term (hereinafter referred to each a “Renewal Term” and cumulatively the “Term”). The Term shall continue until the earlier to occur of the following:
(1) the Agreement is terminated as provided for in Section 8 (TERMINATION OF AGREEMENT); and
(2) The Reseller elects not to renew at the end of the Initial Term or any Renewal Term by giving written notice 30 days in advance of the completion of such term.
8. TERMINATION OF AGREEMENT
(1) Either Party may terminate this Agreement and/or any Reseller Product Agreement Extension at any time
(1) With immediate effect, if the other Party is adjudged insolvent or bankrupt, or if proceedings are instituted by or against a Party seeking relief, reorganization or arrangement or compromise or settlement under any laws relating to insolvency, or seeking any assignment for the benefit of creditors, or seeking the appointment of a receiver, liquidator or trustee of a Party’s property or assets or the liquidation, dissolution or winding up of a Party’s Business.
(2) Parent may Terminate this Agreement and/or any Reseller Product Agreement Extension by notifying the Reseller in writing, as of the date specified in such notice of termination under the following circumstances
(1) In the event that the Reseller or an Agent / Employee / Authorized Representative of the Reseller materially breaches any term of this Agreement and/or any Reseller Product Agreement Extension, including any of its representations, warranties, covenants and agreements hereunder
(2) There was a material misrepresentation and/or material inaccuracy, and/or materially misleading statement in Reseller’s Application to Parent and/or any material accompanying the application.
(3) By giving a 30 (Thirty) days advance notice of termination delivered as per Section 25 (NOTICE).
(4) With immediate effect if:-
(1) the Reseller is convicted of a felony or other serious offense related to financial activities, or is judged by a court to have committed fraud or breach of fiduciary duty, or is the subject of a judicial determination that Parent reasonably deems as the substantive equivalent of any of these; or
(2) the Reseller is disciplined by the government of its domicile for conduct involving dishonesty or misuse of funds of others. (3) as provided for in Appendix ‘A’ and Appendix ‘C’
(4) if Any officer or director of the Reseller is convicted of a felony or of a misdemeanor related to financial activities, or is judged by a court to have committed fraud or breach of fiduciary duty, or is the subject of a judicial determination that Parent deems as the substantive equivalent of any of these;
(3) Reseller may Terminate this Agreement and/or any Reseller Product Agreement Extension by notifying Parent in writing, as of the date of receipt of such notice, in the event that the Reseller does not agree with any revision to the Agreement or any Reseller Product Agreement Extension made as per Section 15 (RIGHT TO SUBSTITUTE UPDATED AGREEMENT AND RESELLER Product Agreement EXTENSIONS) within 30 days of such revision.
(4) Any Product Agreement Extension shall terminate with immediate effect in the event that
(1) Parent ceases to sell the particular Parent Product covered under that Product Agreement Extension
(2) Parents contract with Service Provider for the particular Parent Product terminates or expires without renewal
(5) Effect of Termination of this Agreement
(1) Parent shall suspend OrderBox Users’ access to the OrderBox, Parent Servers and all Parent Products and Services, under this agreement and all Reseller Product Agreement Extensions, immediately upon receiving Termination notice from the Reseller or upon learning of any event, which Parent reasonably determines, would lead to Termination of the Agreement.
(2) Upon expiration or termination of this Agreement, all Reseller Product Agreement Extensions signed by the Reseller shall deemed to have been Terminated with immediate effect
(3) Upon expiration or termination of this Agreement, Parent may complete the processing of all Orders requested to be processed, in the order that they were requested to be processed, by the Reseller prior to the date of such expiration or termination, provided that the Reseller’s Advance Account with Parent has Available Balance sufficient to carry out these Orders. If Parent is unable to fulfill these Orders then the charges levied to the Reseller for these Orders will be reversed
(6) Effect of Termination of any Reseller Product Agreement Extension
(1) Parent may suspend OrderBox Users’ access to applicable Parent Products and Services, and the OrderBox immediately upon receiving Termination notice from the Reseller or upon learning of any event, which Parent reasonably determines, would lead to Termination of any Reseller Product Agreement Extension
(2) Upon expiration or termination of any Reseller Product Agreement Extension, Parent may complete the processing of all Orders, of that Parent Product, in the order that they were requested to be processed, by the Reseller prior to the date of such expiration or termination, provided that Parent is in a position to fulfill these Orders, and the Reseller’s Advance Account with Parent has Available Balance sufficient to carry out these Orders. If Parent is unable to fulfill these Orders then the charges levied to the Reseller for these Orders will be reversed
(3) Parent may transfer all Orders falling under the purview of the specific Reseller Product Agreement Extension to another Reseller or Parent.
(7) Any pending balance due from the Reseller at the time of termination of this Agreement or any Reseller Product Agreement Extension will be immediately payable.
(8) Neither Party shall be liable to the other for damages of any sort resulting solely from terminating this Agreement or any Reseller Product Agreement Extension in accordance with its terms, unless specified otherwise. The Reseller however shall be liable for any damage arising from any breach by it of this Agreement or any Reseller Product Agreement Extension.
9. FEES / ADVANCES / RENEWALS
(1) Reseller shall pay all applicable fees/advances as per the Payment Terms and Conditions set out in Appendix ‘C’
(2) Parent will charge a non-refundable fee for an Order unless stated otherwise in any Product Agreement Extension. The applicable fees will be displayed in the Reseller Control Panel or on the Parent Website and during the Ordering Process. Parent has the right to revise this pricing at anytime. Any such revision or change will be binding and effective immediately on posting of the revision in the Reseller Control Panel or on the Parent Website or on notification to the Reseller via email to the Reseller.
(3) Reseller acknowledges that it is the Reseller’s responsibility to keep records and maintain reminders regarding the expiry of any Order. As a convenience to the Reseller, and not as a binding commitment, we may notify the Reseller of any expiring Orders, via an email message sent to the contact information associated with the Reseller in the OrderBox database. Should renewal fees go unpaid for an Order, the Order will expire. Reseller also acknowledges that it is the Reseller’s responsibility to keep a track of the Available Balance under his Reseller Account. As a convenience to the Reseller, and not as a binding commitment, we may notify the Reseller of low Available Balance, via an email message and/or SMS alert sent to the contact information associated with the Reseller in the OrderBox database. The Reseller agrees to expressly authorize Parent to send the Reseller Account and Order related transactional SMS messages, even in the case that the Reseller’s mobile number is listed as DND with the concerned Telecom Regulatory Authority. The Reseller also agrees to expressly authorize Parent to send his Customers Order related transactional SMS messages using the Reseller’s Branding, even in the case that the Customer’s mobile number is listed as DND with the concerned Telecom Regulatory Authority.
(4) Reseller acknowledges that after expiration of the term of an Order, Reseller has no rights on such Order, or any information associated with such Order, and that ownership of such Order now passes on to Parent. Parent and Service Providers may make any modifications to said Order or any information associated with said Order. Parent and Service Providers may intercept any network/communication requests to such Order and process them in any manner in their sole discretion. Parent and Service Providers may choose to monetize such requests in any fashion at their sole discretion. Parent and Service Providers may choose to display any appropriate message, and/or send any response to any user making a network/communication request, for or concerning said Order. Parent and Service Providers may choose to delete said Order at any time after expiry upon their sole discretion. Parent and Service Providers may choose to transfer the ownership of the Order to any third party in their sole discretion. Reseller acknowledges that Parent and Service Providers shall not liable to Reseller or any third party for any action performed under this clause.
(5) Parent at its sole discretion may allow the renewal of the Order after Order expiry, and such renewal term will start as on the date of expiry of the Order, unless otherwise specified. Such process may be charged separately. Such renewal after the expiry of the Order may not result in exact reinstatement of the Order in the same form as it was prior to expiry.
(6) Parent makes no guarantees about the number of days, after deletion of an Order, after which the same Order will once again become available for purchase.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL PARENT, SERVICE PROVIDERS, OR CONTRACTORS OR THIRD PARTY BENEFICIARIES BE LIABLE TO THE RESELLER FOR ANY SPECIAL, INDIRECT, ANCILLARY, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF PARENT AND/OR SERVICE PROVIDERS, OR CONTRACTORS OR THIRD PARTY BENEFICIARIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
PARENT FURTHER DISCLAIMS ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT NOT LIMITED TO:
(1) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF AUTHENTICATION INFORMATION;
(2) LOSS OR LIABILITY RESULTING FROM FORCE MAJURE EVENTS;
(3) LOSS OR LIABILITY RESULTING FROM ACCESS DELAYS OR ACCESS INTERRUPTIONS;
(4) LOSS OR LIABILITY RESULTING FROM NON-DELIVERY OF DATA OR DATA MISS-DELIVERY;
(5) LOSS OR LIABILITY RESULTING FROM ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION OR PARENT PRODUCT(S) PROVIDED UNDER THIS AGREEMENT;
(6) LOSS OR LIABILITY RESULTING FROM THE INTERRUPTION OF SERVICE.
If any legal action or other legal proceeding (including arbitration) relating to the performance under this Agreement or the enforcement of any provision of this Agreement is brought against Parent by the Reseller, then in no event will the liability of Parent exceed actual amount paid by the Reseller for the Order in question minus direct expenses incurred with respect to the Order in question.
BOTH PARTIES ACKNOWLEDGE THAT THE CONSIDERATION AGREED UPON BY THE PARTIES IS BASED IN PART UPON THESE LIMITATIONS, AND THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT WILL THE LIABILITY OF THE PARENT RELATING TO THIS AGREEMENT EXCEED TOTAL AMOUNT PAID TO PARENT BY THE RESELLER DURING THE MOST RECENT THREE (3) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
(1) The Reseller, at its own expense, will indemnify, defend and hold harmless, Parent, Service Providers and the contractors, employees, directors, officers, representatives, agents and affiliates, of Parent and Service Providers against any claim, suit, action, or other proceeding brought against Parent and/or Service Providers based on or arising from any claim or alleged claim, of third parties relating to or arising under this Agreement, Parent Products provided hereunder or use of the Parent Products, including without limitation:-
(1) arising out of any breach by the Reseller of this Agreement
(2) relating to any product or service of the Reseller, Sub-Resellers, Lower Tier Sub-Resellers;
(3) relating to any actions of the Reseller, or the Reseller’s employees, contractees, agents, Customers, Sub-Resellers, Lower Tier Sub-Resellers or any other party affiliated with the Reseller directly or indirectly;
(4) relating to any agreement and Terms and Conditions with any Customer of the Reseller, SubResellers, Lower Tier Sub-Resellers;
(5) relating to the Reseller’s, Sub-Resellers, or Lower Tier Sub-Resellers Business, including, but not limited to, the advertising, application process, systems and other processes, fees charged, billing practices and customer services provided
(6) relating to or arising out of any Order or use of any Order
(7) relating to any action of Parent as permitted by this Agreement
(8) relating to any action of Parent carried out on behalf of Reseller as described in this Agreement However, that in any such case Parent may serve the Reseller with notice of any such claim and upon the Reseller’s written request, Parent will provide to the Reseller all available information and assistance reasonably necessary for the Reseller to defend such claim, provided that the Reseller reimburses Parent for its actual costs.
(2) The Reseller will not enter into any settlement or compromise of any such indemnifiable claim without Parent’s prior written consent, which shall not be unreasonably withheld.
(3) The Reseller will pay any and all costs, damages, and expenses, including, but not limited to, actual attorneys’ fees and costs awarded against or otherwise incurred by Parent in connection with or arising from any such indemnifiable claim, suit, action or proceeding.
12. INTELLECTUAL PROPERTY & EMPLOYMENT
Subject to the provisions of this Agreement, each Party will continue to independently own his/her/its intellectual property, including all patents, trademarks, trade names, domain names, service marks, copyrights, trade secrets, proprietary processes and all other forms of intellectual property. Any improvements to existing intellectual property will continue to be owned by the Party already holding such intellectual property.
Reseller is prohibited from displaying the ICANN or ICANN-Accredited Registrar logo, or from otherwise representing itself as accredited by ICANN unless it has written permission from ICANN to do so.
Without limiting the generality of the foregoing, no commercial use rights or any licenses under any patent, patent application, copyright, trademark, know-how, trade secret, or any other intellectual proprietary rights are granted by Parent to the Reseller, or by any disclosure of any Confidential Information to the Reseller under this Agreement.
Reseller shall further ensure Reseller does not infringe any intellectual property rights or other rights of any person or entity, or does not publish any content that is libelous or illegal while using services under this Agreement.
Reseller acknowledges that Parent cannot and does not check to see whether any services or the use of the services by the Reseller under this Agreement, infringes legal rights of others.
Reseller acknowledges that
(1) Reseller and its subsidiaries;
(2) and shareholders, employees, directors, officers, agents, contractors, of Reseller and its subsidiaries
(3) and any entity/company that Reseller or its subsidiaries or shareholders, employees, directors, officers, agents, contractors, of Reseller and its subsidiaries have invested in or have any form of interest or control in, or work for, or contract with, shall not, directly or indirectly, knowingly or unknowingly, employ, make, or seek to make any offer of employment to Parent staff during the term of this Agreement and for a period of twelve (12) months following termination of same.
13. OWNERSHIP AND USE OF DATA
(1) Reseller agrees and acknowledges that Parent owns all data, compilation, collective and similar rights, title and interests worldwide in the OrderBox Database, and all information and derivative works generated from the OrderBox Database.
(2) Parent and Service Providers and their designees/agents have the right to backup, copy, publish, disclose, use, sell, modify, process this data in any form and manner as maybe required for compliance of any agreements executed by Parent or Service Providers, or in order to fulfill services under this Agreement, or for any other appropriate reason.
14. DELAYS OR OMISSIONS; WAIVERS
No failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise or waiver of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
No Party shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a waiver or continuing waiver unless otherwise expressly provided in writing duly executed and delivered.
15. RIGHT TO SUBSTITUTE UPDATED AGREEMENT AND RESELLER PRODUCT AGREEMENT EXTENSIONS
(1) During the period of this Agreement, Reseller agrees that Parent may:-
(1) revise the terms and conditions of; and
(2) change the services provided under this Agreement, or any Reseller Product Agreement Extension.
(2) Any such revision or change will be binding and effective immediately on posting of the revision in the Reseller Control Panel or on the Parent Website or on notification to the Reseller via email.
(3) The Reseller agrees to review the Reseller Control Panel and the Parent Website including the agreements, periodically, to be aware of any such revisions
(4) If the Reseller does not agree with any revision, the Reseller may terminate the Agreement or Reseller Product Agreement Extension according to Section 8(3) of this Agreement
(5) Reseller agrees that, continuing use of the services under this Agreement or the Reseller Product Agreement Extension following notice of any revision, will constitute as an acceptance of any such revisions or changes.
(6) The Reseller shall execute, if required by Parent, in a form and manner prescribed by Parent, a supplementary agreement incorporating the amendments to or revisions of the Agreement and/or Reseller Product Agreement Extension.
(7) It will be the Reseller’s responsibility to communicate any changes in the agreement and any obligations/duties covered by these changes to the Reseller’s Agents / Authorized Representatives.
All Confidential Information shall be governed by the Confidentiality Agreement as attached in Appendix ‘B’.
The Reseller shall not create, publish, distribute, or permit any written / Oral / electronic material that makes reference to the Parent or its Service Providers or uses any of Parent’s registered Trademarks / Service Marks or its Service Providers’ registered Trademarks / Service Marks without first submitting such material to the Parent and receiving prior written consent.
The Reseller gives Parent the right to recommend / suggest the Reseller’s name and details to Customers / Visitors to the Parent Website, and Prospective Customers and use the Resellers name in marketing / promotional material with regards to Parent Products.
The Reseller shall be responsible for sales tax, consumption tax, transfer duty, custom duty, octroi duty, excise duty, income tax, and all other taxes and duties, whether international, national, state or local, however designated, which are levied or imposed or may be levied or imposed, with respect to this Agreement and the Parent Products.
19. FORCE MAJEURE
Neither party shall be liable to the other for any loss or damage resulting from any cause beyond its reasonable control (a “Force Majeure Event”) including, but not limited to, insurrection or civil disorder, riot, war or military operations, national or local emergency, acts or directives or omissions of government or other competent authority, compliance with any statutory obligation or executive order, strike, lock-out, work stoppage, industrial disputes of any kind (whether or not involving either party’s employees), any Act of God, fire, lightning, explosion, flood, earthquake, eruption of volcano, storm, subsidence, weather of exceptional severity, equipment or facilities breakages / shortages which are being experienced by providers of telecommunications services generally, or other similar force beyond such Party’s reasonable control, and acts or omissions of persons for whom neither party is responsible. Upon occurrence of a Force Majeure Event and to the extent such occurrence interferes with either party’s performance of this Agreement, such party shall be excused from performance of its obligations (other than payment obligations) during the first three months of such interference, provided that such party uses best efforts to avoid or remove such causes of non performance as soon as possible.
20. ASSIGNMENT / SUBLICENSE Except as otherwise expressly provided herein, the provisions of this Agreement shall inure to the benefit of and be binding upon, the successors and assignees of the Parties. The Reseller shall not assign, sublicense or transfer its rights or obligations under this Agreement to any third person(s)/party without the prior written consent of the Parent.
THE ORDERBOX, PARENT SERVERS AND ANY OTHER SOFTWARE / API / SPECIFICATION / DOCUMENTATION / APPLICATION SERVICES IS PROVIDED ON “AS IS” AND “WHERE IS” BASIS AND WITHOUT ANY WARRANTY OF ANY KIND.
PARENT AND SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES AND / OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS AND QUALITY/AVAILABILITY OF TECHNICAL SUPPORT.
PARENT AND SERVICE PROVIDERS ASSUME NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY AFFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY IN CONNECTION WITH YOUR ACCESS TO, USE OF, ORDERBOX OR BY ACCESSING PARENT SERVERS. WITHOUT LIMITING THE FOREGOING, PARENT AND SERVICE PROVIDERS DO NOT REPRESENT, WARRANT OR GUARANTEE THAT (A) ANY INFORMATION/DATA/DOWNLOAD AVAILABLE ON OR THROUGH ORDERBOX OR PARENT SERVERS WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING DESTRUCTIVE PROPERTIES; OR (B) THE INFORMATION AVAILABLE ON OR THROUGH THE ORDERBOX/PARENT SERVERS WILL NOT CONTAIN ADULT-ORIENTED MATERIAL OR MATERIAL WHICH SOME INDIVIDUALS MAY DEEM OBJECTIONABLE; OR (C) THE FUNCTIONS OR SERVICES PERFORMED BY PARENT AND SERVICE PROVIDERS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE ORDERBOX WILL BE CORRECTED; OR (D) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR (E) THE SERVICES PROVIDED UNDER THIS AGREEMENT OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA. OR (F) YOU WILL RECEIVE NOTIFICATIONS, REMINDERS OR ALERTS FOR ANY EVENTS FROM THE SYSTEM INCLUDING BUT NOT LIMITED TO ANY MODIFICATION TO YOUR ORDER, ANY TRANSACTION IN YOUR ACCOUNT, ANY EXPIRY OF AN ORDER
PARENT AND SERVICE PROVIDERS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY OF THE INFORMATION, CONTENT, DATA, SERVICES, AVAILABLE OR WITH RESPECT TO THEIR LEGITIMACY, LEGALITY, VALIDITY, QUALITY, STABILITY, COMPLETENESS, ACCURACY OR RELIABILITY.
PARENT AND SERVICE PROVIDERS DO NOT ENDORSE, VERIFY OR OTHERWISE CERTIFY THE CONTENT OF ANY SUCH INFORMATION. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OF IMPLIED WARRANTIES, SO THE FOREGOING EXCLUSIONS, AS TO IMPLIED WARRANTIES, MAY NOT APPLY TO YOU.
FURTHERMORE, PARENT NEITHER WARRANTS NOR MAKES ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE ORDERBOX, ORDERBOX SERVERS, PARENT WEBSITE AND ANY OTHER SOFTWARE / API / SPECIFICATION / DOCUMENTATION / APPLICATION SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
22. ARBITRATION Any Dispute, including any question regarding the existence, validity or termination of the Agreement, shall be referred to and finally resolved by arbitration.
23. JURISDICTION & ATTORNEY’S FEES
This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the Country, State and City where Parent is incorporated, applicable therein without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in a court in the city, state, country where Parent is incorporated. Parent reserves the right to enforce the law in the Country/State/District where the Registered/Corporate/Branch Office, or Place of Management of the Reseller is situated as per the laws of that Country/State/District.
If any legal action or other legal proceeding relating to the performance under this Agreement or the enforcement of any provision of this Agreement is brought against either Party hereto, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing Party may be entitled).
(1) Any reference in this Agreement to gender shall include all genders, and words importing the singular number only shall include the plural and vice versa.
(2) There are no representations, warranties, conditions or other agreements, express or implied, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth herein.
(3) The Parties shall attempt to resolve any disputes between them prior to resorting to litigation through mutual understanding or a mutually acceptable Arbitrator.
(4) Survival: In the event of termination of this Agreement for any reason, Sections 1, 4, 6, 8(5), 8(6), 8(7), 8(8), 9, 10, 11, 12, 13, 14, 16, 17, 18, 21, 22, 23, 24(3), 24(4), 24(6), 24(10), 25(2) and all Sections of Appendix A, and all Sections of Appendix B, and Sections 1(5), 1(6), 1(7), 2(5), 3, 4 of Appendix C and any Sections covered separately under a Survival clause in any Reseller Product Agreement Extension shall survive.
(5) This Agreement does not provide and shall not be construed to provide third parties (i.e. non-parties to this Agreement), including any Sub-Reseller, Lower Tier Sub-Reseller Agent, Customer, and Prospective Customer with any remedy, claim, and cause of action or privilege against Parent.
(6) The Reseller and Parent and its Service Providers are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, and sales representative or employment relationship between the parties. Reseller will have no authority to make or accept any offers or representations on our, or our Service Providers’, behalf. Reseller will not make any statement, whether on his Website or otherwise, that reasonably would contradict anything in this Agreement.
(7) Further Assurances: Each Party hereto shall execute and/or cause to be delivered to the other Party hereto such instruments and other documents, and shall take such other actions, as such other Party may reasonably request for the purpose of carrying out or evidencing any of the transactions contemplated / carried out, by / as a result of, this Agreement.
(8) Construction: The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be applied in the construction or interpretation of this Agreement.
(9) Entire Agreement; Severability: This Agreement, which includes Appendix A, Appendix B, Appendix C and each executed Reseller Product Agreement Extension constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements, representations, statements, negotiations, understandings, proposals or undertakings, oral or written, with respect to the subject matter expressly set forth herein. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. If necessary to effect the intent of the Parties, the Parties shall negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language that reflects such intent as closely as possible.
(10) The division of this Agreement into Sections, Subsections, Appendices, Extensions and other Subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be used in the construction or interpretation of this Agreement. (11) This agreement may be executed in counterparts.
(12) Language. All notices, designations, and specifications made under this Agreement shall be made in the English Language only.
(13) Dates and Times. All dates and times relevant to this Agreement or its performance shall be computed based on the date and time observed in the city of the Registered office of the Parent
In the event that Parent suspects breach of any of the terms and conditions of this Agreement:
(1) Parent can immediately, without any notification and without assigning any reasons, suspend / terminate OrderBox Users’ access to all Parent Products and Services and the OrderBox.
(2) Reseller will be immediately liable for any damages caused by any breach of any of the terms and conditions of this Agreement.
(1) Any notice or other communication required or permitted to be delivered to Parent under this Agreement shall be in writing unless otherwise specified and shall be deemed properly delivered when delivered to the legal contact address specified in the Reseller Control Panel or on the Parent Website, by registered mail or courier. Any communication shall be deemed to have been validly and effectively given, on the date of receiving such communication, if such date is a Business Day and such delivery was made prior to 17:30 hours local time, and otherwise on the next Business Day.
(2) Any notice or other communication to be delivered to Parent via email under this agreement shall be deemed to have been properly delivered if sent to its Legal Contact mentioned in the Reseller Control Panel or on the Parent Website.
(3) Any notice or other communication required or permitted to be delivered to the Reseller under this Agreement shall be deemed properly delivered, given and received when delivered to email address or contact address of the Reseller in the OrderBox Database.
(4) Other than those notices mentioned in this agreement, Parent is NOT required to communicate with the Reseller in any respect about services provided under this agreement. As a convenience to the Reseller, Parent may proactively send notices about aspects with regards to services rendered under this Agreement, however these notices may be discontinued by Parent at anytime.
TERMS AND CONDITIONS OF OrderBox USAGE
This Appendix A covers the terms of access to the OrderBox. Any violation of these terms will constitute a breach of agreement, and grounds for immediate termination of this Agreement.
1. ACCESS TO OrderBox
(1) Parent may in its ABSOLUTE and UNFETTERED SOLE DISCRETION, temporarily suspend OrderBox Users’ access to the OrderBox in the event of significant degradation of the OrderBox, or at any time Parent may deem necessary.
(2) Parent may in its ABSOLUTE and UNFETTERED SOLE DISCRETION make modifications to the OrderBox from time to time.
(3) Access to the OrderBox is controlled by authentication information provided by Parent. Parent is not responsible for any action in the OrderBox that takes place using this authentication information whether authorized or not.
(4) Parent is not responsible for any action in the OrderBox by a OrderBox User
(5) OrderBox User will not attempt to hack, crack, gain unauthorized access, misuse or engage in any practice that may hamper operations of the OrderBox including, without Limitation temporary / permanent slow down of the OrderBox, damage to data, software, operating system, applications, hardware components, network connectivity or any other hardware / software that constitute the OrderBox and architecture needed to continue operation thereof.
(6) OrderBox User will not send or cause the sending of repeated unreasonable network requests to the OrderBox or establish repeated unreasonable connections to the OrderBox. Parent will in its ABSOLUTE and UNFETTERED SOLE DISCRETION decide what constitutes as a reasonable number of requests or connections.
(7) OrderBox User will take reasonable measures and precautions to ensure secrecy of authentication information.
(8) OrderBox User will take reasonable precautions to protect OrderBox Data from misuse, unauthorized access or disclosure, alteration, or destruction.
(9) Parent shall not be responsible for damage caused due to the compromise of your Authentication information in any manner OR any authorized/unauthorized use of the Authentication Information.
(10) Parent shall not be liable for any damages due to downtime or interruption of OrderBox for any duration and any cause whatsoever.
(11) Parent shall have the right to temporarily or permanently suspend access of a OrderBox User to the OrderBox if Parent in its ABSOLUTE and UNFETTERED SOLE DISCRETION suspects misuse of the access to the OrderBox, or learns of any possible misuse that has occurred, or will occur with respect to a OrderBox User.
(12) Parent and Service Providers reserve the right to, in their sole discretion, reject any request, network connection, e-mail, or message, to, or passing through, OrderBox
2. Terms of USAGE OF OrderBox
(1) Reseller, or its contractors, employees, directors, officers, representatives, agents and affiliates and OrderBox Users, either directly or indirectly, shall not use or permit use of the OrderBox, directly or indirectly, in violation of any country, state or local rule, regulation or law, or for any unlawful purpose, or in a manner injurious to Parent, Service Providers or other Resellers, Customers and OrderBox Users, or their reputation, including but not limited to the following activities –
(1) Usenet spam (off-topic, bulk posting/cross-posting, advertising in non-commercial newsgroups, etc.)
(2) Posting a single article or substantially similar articles to an excessive number of newsgroups (i.e., more than 2-3) or posting of articles which are off-topic (i.e., off-topic according to the newsgroup charter or the article provokes complaints from the readers of the newsgroup for being off-topic)
(3) Sending unsolicited mass e-mails (i.e., to more than 10 individuals, generally referred to as spamming) which provokes complaints from any of the recipients; or engaging in spamming from any provider
(4) Offering for sale or otherwise enabling access to software products that facilitate the sending of unsolicited e-mail or facilitate the assembling of multiple e-mail addresses (“spamware”)
(5) Advertising, transmitting, linking to, or otherwise making available any software, program, product, or service that is designed to violate these terms, including but not limited to the facilitation of the means to spam, initiation of pinging, flooding, mailbombing, denial of service attacks, and piracy of software
(6) Harassment of other individuals utilizing the Internet after being asked to stop by those individuals, a court, a law-enforcement agency and/or Parent
(7) Impersonating another user or entity or an existing company/user/service or otherwise falsifying one’s identity for fraudulent purposes in e-mail, Usenet postings, on IRC, or with any other Internet service, or for the purpose of directing traffic of said user or entity elsewhere
(8) Pointing to or otherwise directing traffic to, directly or indirectly, any material that, in the sole opinion of Parent, is associated with spamming, bulk e-mail, e-mail harvesting, warez (or links to such material), is in violation of copyright law, or contains material judged, in the sole opinion of Parent, to be threatening or obscene or inappropriate
(9) Engaging in or solicit illegal activities, or to conduct any other activity that infringes the rights of Parent, Service Providers or any other third party
(10) Making foul or profane expressions, or impersonating another person with fraudulent or malicious intent, or to annoy, abuse, threaten, or harass that person
(11) Transmitting Unsolicited Commercial e-mail (UCE)
(12) Transmitting bulk e-mail
(13) Being listed, or, in our sole opinion is about to be listed, in any Spam Blacklist or DNS Blacklist
(14) Posting bulk Usenet/newsgroup articles
(15) Denial of Service attacks of any kind
(16) Excessive use of any web service obtained under this agreement beyond reasonable limits as determined by the Parent in its sole discretion
(17) Copyright or trademark infringement
(18) Unlawful or illegal activities of any kind
(19) Promoting net abuse in any manner (providing software, tools or information which enables, facilitates or otherwise supports net abuse)
(20) Causing lossage or creating service degradation for other users whether intentional or inadvertent.
(21) Distributing chain letters
(22) Sending large or multiple files or messages to a single recipient with malicious intent
(23) Cross-posting articles to an excessive number of, or inappropriate, newsgroups, forums, mailing lists or websites
(24) Phishing (identity theft), pharming, distribution of virus or malware, child pornography, Fast Flux techniques, running Botnet command and control, network attacks, money laundering schemes (Ponzi, Pyramid, Money Mule, etc.), illegal pharmaceutical distribution
(25) Referencing an OrderBox provided service or an Order within a spam email
(26) Hosting, transmitting, providing, publishing, or storing illegal content, including but not limited to the following material, information, messages, data or images:
(1) libelous or defamatory content
(2) content that violates any privacy right
(3) content which threatens physical harm or property damage
(4) content which is obscene, pornographic, salacious, explicitly erotic or offensive
(5) content that violates applicable intellectual property laws or regulations, including but not limited to, the transmission of copyrighted material or trade secrets and the infringement of patents and trademarks
(6) content which violates any export, re-export or import laws and regulations of any jurisdiction
(7) hacker programs or archives, “warez”, passwords or “cracks” (8) internet relay chat servers (“IRCs”) IRC bots
(9) any content which Parent in its sole discretion determines as illegal, unlawful, or otherwise inappropriate
(2) Parent in its sole discretion will determine what constitutes as violation of appropriate usage including but not limited to all of the above.
(3) Data in the OrderBox Database cannot be used for any purpose other than those listed below, except if explicit written permission has been obtained from Parent:-
(1) To perform services contemplated under this agreement; and
(2) To communicate with the Sub-Reseller, Lower Tier Sub-Reseller or Customer of an Order with respect to the Order, Support thereof, or any other matter pertaining to Parent or its services
(4) Data in the OrderBox Database cannot specifically be used for any purpose listed below :-
(1) Mass Mailing or SPAM; and
(2) Selling the data
The Resellers use and disclosure of Confidential Information disclosed hereunder are subject to the following terms and conditions:-
(1) With respect to the Confidential Information, the Reseller agrees that:
(1) The Reseller shall treat as strictly confidential, and use all reasonable efforts, including implementing reasonable physical security measures and operating procedures, to preserve the secrecy and confidentiality of, all Confidential Information received from Parent.
(2) The Reseller shall make no disclosures whatsoever of any Confidential Information to others, provided however, that if the Reseller is a corporation, partnership, or similar entity, disclosure is permitted to the Reseller’s officers and employees who have a demonstrable need to know such Confidential Information, provided the Reseller shall advise such personnel of the confidential nature of the Confidential Information and of the procedures required to maintain the confidentiality thereof; and
(3) The Reseller shall not modify or remove any confidentiality legends and/or copyright notices appearing on any Confidential Information of Parent.
(2) The obligations set forth in this Appendix shall be continuing, provided, however, that this Appendix imposes no obligation upon the Reseller with respect to information that:
(1) is disclosed with Parent’s prior written approval; or
(2) is or has entered the public domain in its integrated and aggregated form through no fault of the receiving party; or
(3) is known by the Reseller prior to the time of disclosure in its integrated and aggregated form; or
(4) is independently developed by the Reseller without use of the Confidential Information; or
(5) is made generally available by Parent without restriction on disclosure.
(3) In the event the Reseller is required by law, regulation or court order to disclose any of Parent’s Confidential Information, the Reseller will promptly notify Parent in writing prior to making any such disclosure in order to facilitate Parent seeking a protective order or other appropriate remedy from the proper authority, at the Reseller’s expense. Reseller agrees to cooperate with Parent in seeking such order or other remedy. Reseller further agrees that if Parent is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only that portion of the Confidential Information which is legally required.
(4) In the event of any termination of this Agreement, all Confidential Information, including all copies, partial copies of Confidential Information, copied portions contained in derivative works, in the Reseller’s possession shall be immediately returned to Parent or destroyed. Within 30 (Thirty) days of termination of this Agreement, the Reseller will certify in writing of the Agreement, to Parent Reseller’s compliance with this provision.
(5) In the event of any termination of any Reseller Product Agreement Extensions, all Confidential Information, including all copies, partial copies of Confidential Information, copied portions contained in derivative works, pertaining to that Parent Product and the Reseller Product Agreement Extension in the Reseller’s possession shall be immediately returned to Parent or destroyed. Within 30 (Thirty) days of termination of the Reseller Product Agreement Extension, the Reseller will certify in writing, to Parent, Reseller’s compliance with this provision.
(6) The Reseller shall provide full voluntary disclosure to Parent of any and all unauthorized disclosures and/or unauthorized uses of any Confidential Information; and the obligations of this Appendix shall survive such termination and remain in full force and effect.
(7) The Resellers duties under this Appendix shall expire five
(5) years after the information is received or earlier, upon written agreement of the parties.
(8) The Reseller agrees that Parent shall be entitled to seek all available legal and equitable remedies for the breach by the Reseller of all of these clauses in Appendix ‘B’ – CONFIDENTIALITY at the cost of the Reseller.
PAYMENT TERMS AND CONDITIONS
1. ADVANCE ACCOUNT
(1) Prior to purchasing any Parent Products, the Reseller shall maintain an Advance Account with Parent.
(2) As and when, the Reseller purchases Parent Products, the Reseller’s Advance Account balance shall be reduced as per the then current pricing of that Parent Product as mentioned in the Reseller Control Panel or on the Parent Website or during the ordering process.
(3) Parent shall maintain a record of Reseller’s Advance Account balance, which shall be accessible by the Reseller. If the Reseller’s Advance Account balance is insufficient for processing any Order then that Order shall not be processed.
(4) The Advance Account will maintain the Reseller Credit in both the Accounting Currency and Selling Currency of the Parent’s choice. Parent has the right to modify the currency at anytime.
(5) Any negative balance in the Reseller’s Advance Account will be immediately payable. If a Reseller does not remedy a negative balance in their account within 24 hours, Parent has the right to terminate this agreement with immediate effect and without any notice. Upon such termination or otherwise Parent shall continue to have the right to initiate any legal proceedings against the Reseller to recover any negative balance in the Reseller’s Advance Account.
(6) Parent shall have the right to set-off any payment received from the Reseller, or Sub-Reseller, or Lower Tier Sub-Reseller, or Customer against any negative balance in the Reseller’s Advance Account.
(7) Any discrepancy, mistake, error in the credit / debit / amount in the Reseller Transactions / Advance Account maybe corrected by Parent at anytime
2. PAYMENT TERMS
(1) Parent will accept payments from the Reseller only by means specified in the Reseller Control Panel
(2) Parent will credit all payments received to the Resellers Advance Account after deducting all bank charges, processing charges and any other charges which Parent may choose to levy upon its sole discretion, within reasonable time of receiving the credit in Parent’s Account. The exchange rate will be determined by Parent through a reasonable source. The exchange rate determined by Parent shall be undisputable.
(3) A processing charge will be deducted on all Credit Card Transactions. This processing charge will be at the discretion of Parent, and will be mentioned in the Reseller Control Panel or on the Parent Website.
(4) It is the Reseller’s responsibility to provide the Reseller Username to Parent to be credited for the payment. The absence of the Reseller Username along with reasonable information will delay the corresponding credit to the Advance Account.
(5) In the event that the Reseller charges back a payment made via Credit Card or the payment instrument sent by the Reseller bounces due to Lack of Funds or any other Reason, then
(4) Parent may immediately suspend OrderBox Users’ access to the OrderBox
(5) Parent has the right to terminate this agreement with immediate effect and without any notice.
(6) Parent in its ABSOLUTE and UNFETTERED SOLE DISCRETION may delete, suspend, deny, cancel, modify, take ownership of or transfer any or all of the Orders placed by the Reseller, or Sub-Resellers or Lower Tier Sub-Resellers or Customers as well as stop / suspend / delete / transfer any Orders currently being processed.
(7) Parent in its ABSOLUTE and UNFETTERED SOLE DISCRETION may Transfer all Orders placed by the Sub-Resellers or Lower Tier Sub-Resellers or Customers of the Reseller to any other Reseller, or under Parent’s account.
(8) Parent in its ABSOLUTE and UNFETTERED SOLE DISCRETION may levy reasonable additional charges for the processing of the Charge-back / Payment Reversal in addition to actual costs of the same.
(9) Any negative balance in the Resellers Advance Account shall become immediately payable
(10) Parent shall have the right to initiate any legal proceedings against the Reseller to recover any such liabilities.
3. PRICING TERMS
(1) All pricing in this Agreement as well as every Reseller Product Agreement Extension refers to the price at which the Reseller may Purchase the corresponding Parent Product. This is excluding taxes, surcharges or any other costs. (2) Parent may at any time change the price of any Parent Product with immediate effect. Notification will be provided to the Reseller before the price change. 4. REFUNDS AND REIMBURSEMENT TERMS
(1) All Available Balance pending in the Advance Account maybe reimbursed fully to the Reseller, on request of the Reseller. Such Request must be sent to Parent in the manner prescribed by Parent.
(2) All bank charges applicable and a reasonable processing fee will be deducted from this amount. All Refunds and Reimbursements will take up to 14 Business Days from the date of receipt of the request, to process.
(3) Parent will not be responsible for any differences in the reimbursement amount due to Fluctuation in International Currency rates. Parent will determine in its sole discretion appropriate conversion rates for currency exchange
(4) Parent will not refund any amount that has already been debited to the Resellers Advance Account under any circumstances.
RESELLER DOMAIN REGISTRATION PRODUCT AGREEMENT EXTENSION
SPARK I/T Services (hereinafter referred to as “Parent”) AND you (hereinafter referred to as “Reseller”) HAVE entered into a Reseller Master Agreement (“Agreement”) effective from July 16, 2014 of which this “Domain Registration Product Agreement Extension” is a part.
WHEREAS, Parent is authorized to provide Internet registration and management services for domain names, for the list of TLDs mentioned within APPENDIX ‘B’;
WHEREAS, the Reseller intends to provide Registration and/or Management and/or Renewal and/or Transfer for the list of TLDs mentioned within APPENDIX ‘B’ through Parent;
WHEREAS, Parent provides Domain Name Privacy Protection Services for a select set of Top Level Domains registered through Parent;
WHEREAS, Reseller also intends to provide Domain Name Privacy Protection Services to Customers through Parent;
NOW, THEREFORE, for and in consideration of the mutual promises, benefits and covenants contained herein and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, Parent and the Reseller, intending to be legally bound, hereby agree as follows:
(1) “TLD” refers to .COM, .NET, .ORG, .BIZ, .INFO, .NAME, .US, .IN, .EU, .UK, .TRAVEL, .WS, .COOP, CentralNIC, .MOBI, .ASIA, .ME, .TEL, .MN, .BZ, .CC, .TV, .CN, .NZ, .CO, .CA, .DE, .ES, .AU, .XXX, .RU, .PRO, .SX, .PW, .IN.NET, .CO.DE, .LA, Donuts, .CLUB, .UNO, .MENU and .BUZZ
(2) “gTLD” refers to .COM, .NET, .ORG, .BIZ, .INFO, .NAME, .TRAVEL, .COOP, .MOBI, .ASIA, .TEL, .XXX, .PRO, Donuts, .CLUB .UNO, .MENU and .BUZZ
(3) “Domain Order” refers to an Order fulfilled by the Reseller through the Parent under this Domain Registration Product Agreement Extension.
(4) “ICANN” is the Internet Corporation for Assigned Names and Numbers.
(5) “Registrant” refers to the registrant/owner of a Domain Order as in the OrderBox Database.
(6) “Registrar” refers to the Registrar of a Domain Order as in the OrderBox Database and/or shown in the Whois Record.
(7) “Registry Operator” refers to the Organisation/Entity that maintains the registry of a TLD of a Domain Order.
(8) “Whois Record” refers to the collection of all data elements of the Domain Order, specifically its Registrant Contact Information, Administrative Contact Information, Technical Contact Information, Billing Contact Information, Nameservers if any, its Creation and Expiry dates, its Registrar and its current Status in the Registry.
2. OBLIGATIONS OF THE RESELLER
(1) The Reseller must ensure that the Registrant of each Domain Order must agree to be bound by the terms and conditions laid out by the Registrar of the Domain Name during the term of the Domain Order. The Reseller must familiarize himself with such terms. The Reseller acknowledges that the Registrar has various rights and powers as mentioned in the Registrar’s terms and conditions. Parent is not liable for any action taken by Registrar pursuant to the Registrar’s terms and conditions. The Reseller acknowledges and agrees that the Reseller shall indemnify Parent of, and shall be responsible for any liability resulting from Registrants’ noncompliance with such terms and conditions.
(2) The Reseller will not make any changes to any information associated with the Domain Order without explicit authorization from the Registrant of that Domain Order.
(3) The Reseller must comply with all applicable terms and conditions, standards, policies, procedures, and practices laid down by ICANN, the Registrar and the Registry Operator.
(4) The Reseller acknowledges, agrees and ensures that the Registrant accepts the “Registrar Registrant Agreement” before purchasing domain names. The Reseller shall display the “Registrar Registrant Agreement” before collecting payment from the Registrant.
(5) The Reseller agrees to display domain registration, renewal, transfer and restore fee on its website for all the TLD’s offered by them during the term of this Agreement.
(6) The Reseller agrees that they will display the communication and notification methods on their website to communicate with the Registrant. The Reseller shall include domain pre and post expiry notice details and how the registrant will be informed about expiring domains. The Reseller will ensure that the Registrant contact for expiring domain names will receive renewal reminders atleast 30 days and 7 days before expiry. A third reminder will also be sent immediately after the domain name expires.
3. RIGHTS OF PARENT
Parent and Service Providers, in their sole discretion, expressly reserve the right to freeze, delete, suspend, deny, cancel, modify, take ownership of or transfer any Domain Order, in order to comply with any applicable Dispute policies, requests of law enforcement, or in compliance with any Court Orders, or if Parent or Service Providers in their sole discretion determine that the information associated with the Domain Order is inaccurate, or has been tampered with, or has been modified without authorization, or if Parent or Service Providers in their sole discretion determine that the Domain Order ownership should belong to another entity, or if Reseller/Customer/Registrant does not comply with any applicable terms and conditions, standards, policies, procedures, and practices laid down by Parent, Service Providers, ICANN, the Registrar and the Registry Operator. The Reseller agrees that Parent and Service Providers, and the contractors, employees, directors, officers, representatives, agents and affiliates, of Parent and Service Providers, are not liable for loss or damages that may result from any of the above.
In the event of termination of this Product Agreement Extension for any reason, Sections 2 and 3 shall survive.
PRIVACY PROTECTION SERVICE SPECIFIC CONDITIONS
1. DESCRIPTION OF SERVICES
The Privacy Protection Service hides the contact details of the actual owner from appearing in the Whois Lookup Result of his domain name.
2. IMPLEMENTATION DETAILS
(1) Reseller acknowledges and agrees that the contact information being displayed in the Whois of a privacy protected Domain Order will be those designated by the Parent, and
(1) any mail received via post at this Address would be rejected;
(2) any telephone call received at this Telephone Number, would be greeted with an electronic answering machine requesting the caller to email the email address listed in the Whois of this privacy protected domain name;
(3) the sender of any email to an email address listed in the Whois of this privacy protected domain name, will get an automated response email asking them to visit the URL http://www.privacyprotect.org/ to contact the Registrant, Administrative, Billing or Technical Contact of a privacy protected domain name through an online form. This message would be relayed as an email message via http://www.privacyprotect.org/ to the actual Registrant, Administrative, Billing or Technical Contact email address in the OrderBox Database.
(2) Reseller agrees that we can not guarantee delivery of messages to either the Registrant, Administrative, Billing, Technical Contact, or Customer of a privacy protected Domain Order, and that such message may not be delivered in time or at all, for any reason whatsoever. Parent and Service Providers disclaim any and all liability associated with non-delivery of any messages relating to the Domain Order and this service.
(3) Reseller understands that the Privacy Protection Service is only available for certain TLDs.
(4) Irrespective of whether Privacy Protection is enabled or not, Customers and Registrants are required to fulfill their obligations of providing true and accurate contact information as detailed in the Agreement.
(5) Reseller understands and acknowledges that Parent in its sole, unfettered discretion, can discontinue providing Privacy Protection Services on the Order for any purpose, including but not limited to:
(1) if Parent receives any abuse complaint for the privacy protected domain name, or
(2) pursuant to any applicable laws, government rules or requirements, requests of law enforcement agency, or
(3) for the resolution of disputes concerning the domain name, or
(4) any other reason that Parent in its sole discretion deems appropriate to switch off the Privacy Protection Services.
3. OBLIGATIONS OF RESELLER
Reseller must ensure that the Registrant and Customer of each Domain Order must also acknowledge and agree to be bound by the following terms and conditions. The Reseller acknowledges and agrees that the Reseller shall indemnify Parent of, and shall be responsible for any liability resulting from Resellers’ nondisclosure of these terms to Customers and Registrants.
Reseller will ensure that Customer and Registrant agree to release, defend, indemnify and hold harmless Parent, Service Providers, PrivacyProtect.org, and their parent companies, subsidiaries, affiliates, shareholders, agents, directors, officers and employees, from and against any and all claims, demands, liabilities, losses, damages or costs, including reasonable attorney’s fees, arising out of or related in any way to the Privacy Protection services provided hereunder.
LIST OF TLDS PARENT IS AUTHORIZED TO PROVIDE DOMAIN NAME REGISTRATION AND MANAGEMENT SERVICES
.NET (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.ORG (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.BIZ (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com) .INFO (through Registrar UK2 Group Ltd.)
.NAME and .NAME Defensive Registrations and .NAME Mail Forwards (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.US (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.IN (through Registrar Webiq Domains Solutions Pvt Ltd)
.EU (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.UK (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.TRAVEL (through Registrar Directi Internet Solutions Pvt. Ltd. D/B/A PublicDomainRegistry.com)
.WS (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.COOP (through Registrar Domains.coop Ltd.) CentralNIC (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.MOBI (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.ASIA (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com) .ME (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.TEL (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.MN, .BZ (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.CC, .TV (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.CN (through Registrar PDR Ltd.) .NZ (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.CO (through Registrar <#=dotco_serviceprovidername#>)
.CA (through Registrar PublicDomainRegistry.com Inc)
.DE (through Registrar Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com)
.ES (through Registrar Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com)
.AU (through Registrar Public Domain Registry Pty Ltd.)
.RU (through Registrar RU-Center)
.XXX (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.PRO (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.SX (through Registrar PDR Ltd.)
.PW (through Registrar <#=dotpw_serviceprovidername#>)
.IN.NET (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
.CO.DE (through Registrar PDR Ltd.)
.LA (through Registrar <#=centralnicdotla_serviceprovidername#>) Donuts (through Registrar PDR Ltd.)
.CLUB (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com) .UNO (through Registrar PDR Ltd.)
.MENU (through Registrar PDR Ltd.)
.BUZZ (through Registrar PDR Ltd. d/b/a PublicDomainRegistry.com)
RESELLER WEB SERVICES PRODUCT AGREEMENT EXTENSION
SPARK I/T Services (hereinafter referred to as “Parent”) AND you (hereinafter referred to as “Reseller”) HAVE entered into a Reseller Master Agreement (“Agreement”) effective from July 16, 2014 of which this “Web Services Product Agreement Extension” is a part.
WHEREAS, Parent provides Domain Forwarding, Mail Forwarding, Managed DNS;
WHEREAS, the Reseller intends to provide through Parent, Domain Forwarding or Mail Forwarding or Managed DNS;
NOW, THEREFORE, for and in consideration of the mutual promises, benefits and covenants contained herein and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, Parent and the Reseller, intending to be legally bound, hereby agree as follows:
1. Reseller Election. Reseller hereby elects and agrees to begin providing Domain Forwarding or Mail Forwarding or Managed DNS through Parent.
2. Parent’s Acceptance. Parent hereby accepts Reseller’s election to begin providing Domain Forwarding or Mail Forwarding or Managed DNS through Parent.
RESELLER DIGITAL CERTIFICATES PRODUCT AGREEMENT EXTENSION
SPARK I/T Services (hereinafter referred to as “Parent”) AND you (hereinafter referred to as “Reseller”) HAVE entered into a Reseller Master Agreement (“Agreement”) effective from July 16, 2014 of which this “Digital Certificate Product Agreement Extension” is a part.
WHEREAS, Parent is authorized to sell digital certificates of Thawte;
WHEREAS, the Reseller intends to resell Thawte digital certificates through Parent;
NOW, THEREFORE, Parent and the Reseller, hereby agree as follows:
1. Reseller Election. Reseller hereby elects and agrees to begin providing Thawte digital certificates through Parent
2. Parent’s Acceptance. Parent hereby accepts Reseller’s election to begin providing Thawte digital certificates through Parent.
RESELLER HOSTING PRODUCT AGREEMENT EXTENSION
SPARK I/T Services (hereinafter referred to as “Parent”) AND you (hereinafter referred to as “Reseller”) HAVE entered into a Reseller Master Agreement effective from July 16, 2014 of which this “Web Services Product Agreement Extension” is a part.
WHEREAS, Parent provides Web, Virtual Private Server and Email Hosting services;
WHEREAS, the Reseller intends to provide through Parent, Web, VPS and Email Hosting services;
NOW, THEREFORE, for and in consideration of the mutual promises, benefits and covenants contained herein and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, Parent and the Reseller, intending to be legally bound, hereby agree as follows:
(1) Reseller hereby elects and agrees to begin providing web hosting services through Parent. Each Order that represents a web hosting service or a VPS service and/or an email hosting service shall be referred to as a “Hosting Order”
(2) Parent hereby accepts Reseller’s election to begin providing web hosting services through Parent.
2. Rights of Parent
While certain attributes of a Hosting Order may consist of unlimited resources, Reseller recognizes that a Hosting Order is a shared hosting service, and that the Parent has the right in its sole discretion to apply any hard limits on any specific attribute or resource on a Hosting Order at any given time without notice in order to prevent degradation of its services, or in case of any breach or violation or threatened breach or violation of this Agreement, or in case Parent learns of a possibility of breach or violation of this Agreement which Parent in its sole discretion determines to be appropriate, or to protect the integrity and stability of the Parent Products and the OrderBox, or to avoid any liability, civil or criminal, on the part of Parent and/or Service Providers, or for any other appropriate reason. The Reseller agrees that Parent and Service Providers, and the contractors, employees, directors, officers, representatives, agents and affiliates, of Parent and Service Providers, are not liable for loss or damages that may result from any of the above.
3. Terms of Usage
Reseller, or its contractors, employees, directors, officers, representatives, agents and affiliates and OrderBox Users, shall not use or permit use, either directly or indirectly, or through its customers, of any Hosting Order, in violation of this Agreement, and for any of the activities described below –
A. General Terms
(1) For any unacceptable or inappropriate material as determined by Parent in its sole discretion, including but not limited to Topsites, IRC Scripts/Bots, Proxy Scripts/Anonymizers, Pirated Software/Warez, Image Hosting Scripts (similar to Photobucket or Tinypic), AutoSurf/PTC/PTS/PPC sites, IP Scanners, Bruteforce Programs/Scripts/Applications, Mail Bombers/Spam Scripts, Banner-Ad services (commercial banner ad rotation), File Dump/Mirror Scripts (similar to rapidshare), Commercial Audio Streaming (more than one or two streams), Escrow/Bank Debentures, High-Yield Interest Programs (HYIP) or Related Sites, Investment Sites (FOREX, E-Gold Exchange, Second Life/Linden Exchange, Ponzi, MLM/Pyramid Scheme), Sale of any controlled substance without prior proof of appropriate permit(s), Prime Banks Programs, Lottery Sites, MUDs/RPGs/PPBGs, Hateful/Racist/Harassment oriented sites, Hacker focused sites/archives/programs, Sites promoting illegal activities, Forums and/or websites that distribute or link to warez/pirated/illegal content, Bank Debentures/Bank Debenture Trading Programs, Fraudulent Sites (Including, but not limited to sites listed at aa419.org & escrow-fraud.com), Mailer Pro.
(2) Use over 25% of system resources, including but not limited to Memory, CPU, Disk, Network, and Bandwidth capacity, for longer than 90 seconds in any consecutive 6 hour period.
(3) Execute long-running, stand-alone, unattended server-side processes, bots or daemons.
(4) Run any type of web spiders or indexers.
(5) Run any software that interfaces with an IRC (Internet Relay Chat) network.
(6) Run, host, or store any P2P client, tracker, software, server, files, content or application, including bittorrent.
(7) Participate in any P2P or file-sharing networks.
(8) Use excessive resources which in the Parent’s sole discretion result in damage or degradation to the performance, usage, or experience of OrderBox, other users, other orders, and any of Parent’s services.
(9) Use the email service for sending or receiving unsolicited emails.
(10) Use the email service for sending or receiving emails through automated scripts hosted on your website. For sending out promotional emails, email campaigns, etc., we recommend using the Mailing Lists feature rather than using your email account. Upon detection of such mails going through the regular mailing system, such mails will get classified as spam even though the recipient might have opted in for receiving such mails. This would lead to immediate cessation of mail sending capabilities for the user or the domain name. Frequent violation would lead to permanent suspension of the domain name.
(11) Sending mails to invalid recipient email addresses. On receipt of too many bounce back messages due to invalid recipient email addresses, the user sending such mails would get blocked. Frequent violation would lead to permanent suspension of the domain name.
(12) Sending mails from an email address that is not valid and which results in triple bounces would result in suspension of the user sending such mails. Frequent violation would lead to permanent suspension of the domain name.
(13) Send emails with malicious content. Such emails could be emanating from user(s) whose machine(s) are infected with a virus or malware and such activity could be happening without the user(s) knowledge or user(s) could be unknowingly sending out emails whose receivers may deem them as unsolicited.
(14) Run cron entries with intervals of less than 15 minutes.
(15) Engage in any activities related to purchase, sale or mining of currencies such as Bitcoin.
B. Web, Email Hosting Specific terms
(1) As a backup/storage device.
(2) Run any gaming servers.
(3) Store over 100,000 files.
(4) Constantly create and delete large numbers of files on a regular basis, or cause file system damage.
(5) Run any MySQL queries longer than 15 seconds.
(6) Divide Multi-Domain Hosting Orders into smaller packages to resell. Multi-Domain Hosting Orders can only be used by a single Company or Customer to host websites that are fully owned by them. Certain relevant Documents, other than domain name whois details, with respect to company and domain names/website ownership will need to be presented when requested. Having the same whois details for all domain names in your Multi-Domain Hosting Order will not be enough to substantiate ownership.
(7) Store a large number of media files (audio, video, etc.), wherein the limit is at Parent’s sole discretion.
(8) Send over 100 messages per hour per user and/or 300 messages per hour for a domain name. Receive a high volume of emails, by a user or domain name, in any given period of time.
(9) Purchase/use a Dedicated IP Address without installing an SSL Certificate.
(10) Violate the above Terms of Usage for a Hosting Order which comprises of the Do-It-Yourself website builder powered by Jigsy.com.
(11) Occupy more than 50% of the total disk space used for storing emails on the server.
(12) Use a WHMCS license issued by the Parent with any product/service other than the one for which it was issued.
(13) Store more than two website backup files.
General terms: This Limited Warranty applies only to hardware products you purchased from SPARK I/T Services, LLC (hereinafter referred to as “SPARK Services”) for your own use and not for resale.
SPARK Services warrants that each hardware product that you purchase is free from defects in materials and workmanship under normal use during the warranty period. The warranty period for the product starts on the original date of purchase as shown on your sales receipt or invoice or as may be otherwise specified by SPARK Services. The warranty period and type of warranty service that apply to your product are as specified in “Warranty Service Information” section below. This warranty only applies to products in the country or region of purchase.
THIS WARRANTY IS YOUR EXCLUSIVE WARRANTY AND REPLACES ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AS SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES APPLY ONLY TO THE EXTENT AND FOR SUCH DURATION AS REQUIRED BY LAW AND ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. AS SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON THE DURATION OF AN IMPLIED WARRANTY, THE ABOVE LIMITATION ON DURATION MAY NOT APPLY TO YOU.
If the product does not function as warranted during the warranty period, you may obtain warranty service by contacting SPARK Services and opening a website-based support ticket at the following URL; http://www.sparkservices.net/support/, or by making a request either via EMAIL or in writing to any SPARK Services office location. Contact via telephone will not preserve your rights under this Limited Warranty. Warranty service may not be available in all customer locations and may differ from location to location.
Customer Responsibilities for Warranty Service: Before warranty service is provided, you must take the following steps.
- Follow the service request procedures specified by SPARK Services; and
- Backup or secure all programs and data contained in the product; and
- Provide SPARK Services with all system keys or passwords; and
- For use of on-site service options provide SPARK Services with sufficient, free, and safe access to your facilities to perform service; and
- Remove all data, including confidential information, proprietary information and personal information, from the product or, if you are unable to remove any such information, modify the information to prevent its access by another party or so that it is not personal data under applicable law. Note that SPARK Services shall not be responsible for the loss or disclosure of any data, including confidential information, proprietary information, or personal information, on a product returned or accessed for warranty service; and
- Remove all features, parts, options, alterations, and attachments not covered by the warranty; and
- Ensure that the product or part is free of any legal restrictions that prevent its replacement; and
- If you are not the owner of a product or part, obtain authorization from the owner for SPARK Services to provide warranty service.
What SPARK Services will do to correct problems: When you contact SPARK Services you must follow the specified problem determination and resolution procedures. SPARK Services will first attempt to diagnose and resolve your problem by telephone, e-mail or remote assistance. SPARK Services may direct you to download and install designated software updates. Some problems may be resolved with a replacement part that you install yourself called a “Customer Swap Component” or “CSC.” If so, SPARK Services will ship the CSC to you for you to install.
If your problem cannot be resolved over the telephone; through the application of software updates or the installation of a CSC, SPARK Services will arrange for service under the type of warranty service designated for the product under “Warranty Service Information” below.
If SPARK Services determines that it is unable to repair your product, SPARK Services will replace it with one that is at least functionally equivalent. If SPARK Services determines that it is unable to either repair or replace your product, your sole remedy under this Limited Warranty is to return the product to SPARK Services for a refund of your purchase price.
Replacement Products and Parts: When warranty service involves the replacement of a product or part, the replaced product or part becomes SPARK Services property and the replacement product or part becomes your property. Only unaltered SPARK Services products and parts are eligible for replacement. The replacement product or part provided by SPARK Services may not be new, but it will be in good working order and at least functionally equivalent or in some cases more functional (I.E. faster speed, greater storage capacity, etc…) than the original product or part. The replacement product or part shall be warranted for the balance of the period remaining on the original product.
What this Warranty Does NOT Cover: This warranty does not cover the following:
- Uninterrupted or error-free operation of a product
- Loss of, or damage to, your data by a product
- Any software programs, whether provided with the product or installed subsequently
- Failure or damage resulting from misuse, abuse, accident, deliberate alteration,
tampering or modification of the product from its original configuration as-sold, unsuitable physical or operating environment, natural disasters and acts of god including but not limited to all weather-related & environmental events such as earthquake, flooding, tornado, hurricane, etc, war, rioting/insurrection/civil disorder/ calamity.
- Power surges, improper maintenance, or use not in accordance with product information materials
- Damage caused by a non-authorized service provider
- Failure of, or damage caused by, any third-party products, including those that SPARK
Services may provide or integrate into the SPARK Services product at your request
- Any technical or other support, such as assistance with “how-to” questions and those
regarding product set-up and installation products or parts with an altered identification label or from which the identification label has been removed
Limitation of Liability: SPARK Services is responsible for loss or damage to your product only while it is in SPARK Services’ possession or in transit, if SPARK Services is responsible for the transportation. SPARK Services is not responsible for loss or disclosure of any data, including confidential information, proprietary information, or personal information, contained in a product.
UNDER NO CIRCUMSTANCES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, SHALL SPARK SERVICES, ITS AFFILIATES, SUPPLIERS, RESELLERS, OR SERVICE PROVIDERS BE LIABLE FOR ANY OF THE FOLLOWING EVEN IF INFORMED OF THEIR POSSIBILITY AND REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY:
- THIRD PARTY CLAIMS AGAINST YOU FOR DAMAGES;
- LOSS, DAMAGE OR DISCLOSURE OF YOUR DATA;
- SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, BUSINESS REVENUE, GOODWILL OR ANTICIPATED SAVINGS. IN NO CASE SHALL THE TOTAL LIABILITY OF SPARK SERVICES, ITS AFFILIATES, SUPPLIERS, RESELLERS OR SERVICE PROVIDERS FOR DAMAGES FROM ANY CAUSE EXCEED THE AMOUNT OF ACTUAL DIRECT DAMAGES, NOT TO EXCEED THE AMOUNT PAID FOR THE PRODUCT.
THE FOREGOING LIMITATIONS DO NOT APPLY TO DAMAGES FOR BODILY INJURY (INCLUDING DEATH), DAMAGE TO REAL PROPERTY OR DAMAGE TO TANGIBLE PERSONAL PROPERTY FOR WHICH SPARK SERVICES IS LIABLE UNDER LAW. AS SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Your Other Rights: THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS ACCORDING TO THE APPLICABLE LAWS OF YOUR STATE OR JURISDICTION. YOU MAY ALSO HAVE OTHER RIGHTS UNDER A WRITTEN AGREEMENT WITH SPARK SERVICES. NOTHING IN THIS WARRANTY AFFECTS STATUTORY RIGHTS, INCLUDING RIGHTS OF CONSUMERS UNDER LAWS OR REGULATIONS GOVERNING THE SALE OF CONSUMER GOODS THAT CANNOT BE WAIVED OR LIMITED BY CONTRACT.
TYPES OF WARRANTY SERVICE & WARRANTY SERVICE INFORMATION
General term of warranty: Unless otherwise specified on the invoice at time of sale, physical hardware sold by SPARK Services shall carry a Limited Warranty with a duration of Thirty-Six (36) months from the date of original purchase. Said warranty shall cover parts and labor costing to either return the original equipment to full and operable service (as specified by SPARK Services), or shall cover replacement with a functionally equivalent unit to the original equipment purchased, whether the same is provided as either new or pre-owned equipment. Shipping costs will be apportioned as specified in the other paragraphs covering this warranty. Software products provided by third products are not warranted by SPARK Services other than the original manufacturer’s warranty. Please contact the manufacturer of the software in question for further warranty details they may offer.
Customer Swap Component (“CSC”) Service: Under CSC Service, SPARK Services will ship CSCs to you at its cost for installation by you. CSC information and replacement instructions are shipped with your product and are available from SPARK Services at any time upon request. CSCs that are easily installed by you are called “Self- service CSCs”. These are CSCs that may require some technical skill and tools. Installation of Self-service CSCs is your responsibility. You may request that Spark Services install Optional- service CSCs under one of the other types of warranty service designated for your product. An optional service offering may be available for purchase from SPARK Services under which Self- service CSCs would be installed for you.
The requirement to return a defective CSC, if any, will be specified in the instructions shipped with a replacement CSC. When return is required, return instructions, a prepaid return shipping label, and a container will be included with the replacement CSC. You may be charged full list price for the replacement CSC if SPARK Services does not receive the defective CSC from you within thirty (30) days of your receipt of the replacement CSC.
On-site Service: Under On-Site Service, either a SPARK Services technician or a Service Provider under contract to SPARK Services will either repair or exchange the product at your location. You must provide a suitable working area to allow disassembly and reassembly of the product. Some repairs may need to be completed at a service center. If so, the Service Provider will send the product to the service center at its expense.
Courier or Depot Service: Under Courier or Depot Service, your product will be repaired or exchanged at a designated service center of the original manufacturer of the product, with shipping at the expense of SPARK Services. You are responsible for disconnecting the product and securely packing it in a shipping container provided to you to return your product to either SPARK Services or a designated service center. A courier will pick up your product and deliver it to the designated service location. The service location will return the product to you at its expense.
Customer Carry-In Service: Under Customer Carry-In Service, your product will be repaired or exchanged after you deliver it to either SPARK Services or a designated service center at your risk and expense. After the product has been repaired or exchanged, it will be made available to you for collection. If you fail to collect the product within 30 days after notification the product is repaired, SPARK Services may dispose of the product as it sees fit, with no liability to you.
Mail-In Service: Under Mail-In Service, your product will be repaired or exchanged at a designated service center after you deliver or mail it to the service center at your risk and expense. After the product has been repaired or exchanged, it will be returned to you at SPARK Services’ risk and expense, unless SPARK Services specifies otherwise.
Product Exchange Service: Under Product Exchange Service, SPARK Services will ship a replacement product to your location. You are responsible for its installation and verification of its operation. The replacement product becomes your property in exchange for the failed product, which becomes the property of SPARK Services. You must securely pack the failed product in the shipping carton in which you received the replacement product and return it to SPARK Services. Transportation charges, both ways, shall be at SPARK Services expense. If you fail to use the carton in which the replacement product was received, you may be responsible for any damage to the failed product occurring during shipment. You may be charged for the replacement product if SPARK Services does not receive the failed product within thirty (30) days of your receipt of the replacement product.
GENERAL SERVICE POLICIES
In addition to these Residential General Terms and Conditions of Service (“General Terms”), You (“CUSTOMER”) agree to be bound by the terms of service applicable to the residential SPARK Services service(s) to which You subscribe (hereafter, “Service” or “Services”), as well as the SPARK Services CUSTOMER Privacy Notice which may each be found at www.sparkservices.net/our-policies/ as such may be updated from time to time (collectively, the “Terms of Service”), which are incorporated herein by this reference. In the event of any conflict between these General Terms below and the Service-specific Terms of Service, the Service-specific Terms of Service shall control.
If SPARK Services provides SIP service (also, “Phone Service”) in CUSTOMER’s area, it will be provided through the SPARK Services VoIP affiliate servicing CUSTOMER’s area. For purposes of this Agreement, “affiliate” means any subsidiary of SPARK Services.
CUSTOMER’s signature on the work Request presented upon installation of Services and/or CUSTOMER’s use of Services are evidence of CUSTOMER’s agreement to the Terms of Service. SPARK Services may change its prices, fees, the Services, and/or the Terms of Service at any time. CUSTOMER’s continued use of the Services after notice of the change, shall be considered CUSTOMER’s acknowledgement and acceptance of the changes. The current version of the Terms of Service may be found at “www.sparkservices.net” under “Terms of Service/Policies.” CUSTOMER may not modify the General Terms below, the Service-specific Terms of Service, or the SPARK Services CUSTOMER Privacy Notice by making any typed, handwritten, or any other changes to it for any purpose. This is a binding legal document.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION IN SECTION 24, WHICH INCLUDES A WAIVER OF CLASS ACTIONS AND PROVISIONS FOR OPTING OUT OF ARBITRATION, WHICH AFFECTS CUSTOMER’S RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO ALL SERVICES.
1. Payment of Charges
CUSTOMER will be billed monthly in advance for Services to be received, plus pro-rata charges, if any, for periods not previously billed. CUSTOMER will be billed monthly for Services Requested where charges are based on actual usage or on Requests placed during the previous month. CUSTOMER shall pay all monthly charges and all applicable fees and taxes as listed on the SPARK Services monthly bill. CUSTOMER shall notify SPARK Services of disputed items within thirty (30) days of receipt, or longer as required by applicable law. Failure to pay charges billed (including checks returned for insufficient funds) may result in discontinuance of Service, the removal of all SPARK Services Equipment (as defined below) and/or imposition of a late payment or service charge. If the CUSTOMER has more than one account (business and/or residential) served by SPARK Services, all SPARK Services-provided Services at all locations may be subject to suspension or discontinuance of Service in the event any one account remains unpaid, and SPARK Services may apply any funds received from CUSTOMER first to such delinquent account(s). Should CUSTOMER wish to resume a Service after any suspension, CUSTOMER may be subject to a reconnection fee. Should CUSTOMER wish to resume a Service after termination of Service, SPARK Services may charge an installation fee and/or service activation fee. These fees are in addition to all past due charges and other fees. In the event collection activities are required, an additional collection charge may be imposed. The CUSTOMER’s first bill may include prorated charges for Service received. If partial payment is made of any bill and without waiving its right to collect the full balance owed, SPARK Services will apply that payment to any outstanding charges in the amounts and proportions that it determines.
2. Payment by Check; Non-Sufficient Funds/Returned Items; Third Party Processing
If CUSTOMER makes payment by check, CUSTOMER authorizes SPARK Services to collect such payment electronically. CUSTOMER may not amend or modify this Agreement with any restrictive endorsements (such as “paid in full”), releases, or other statements on or accompanying checks or other payments accepted by SPARK Services; any of which notations shall have no legal effect. If CUSTOMER’s card issuer or financial institution refuses payment for insufficient funds, closed or unauthorized accounts, or any other reason, CUSTOMER will be charged an insufficient fund charge for each instance in which such payment is refused. CUSTOMER hereby authorizes SPARK Services to collect any declined amount and the insufficient funds charge(s) electronically from the subject account. In addition, CUSTOMER’s Service may be suspended and/or terminated. This fee is in addition to any charges CUSTOMER’s financial institution may assess. If initially rejected, SPARK Services may make additional multiple attempts to execute the payment for up to thirty (30) days following the initial refusal.
Customer shall be responsible for any payment processing fees incurred when using a third party to process Customer’s payments to SPARK Services.
3. SPARK Services Refund Policy/30-Day Guarantee
New CUSTOMERs (those who have not been SPARK Services customers for 90 days prior to subscription) qualify to have all levels of subscription Service refunded/credited if not fully satisfied with the service. Current CUSTOMERs adding a new level of Service qualify to receive a refund/credit only on those newly added Services not received within the previous 90 days. Such refund is valid for customers who pay for their first month of new or upgraded monthly recurring subscription Services. Non-recurring subscription purchases are not refundable in addition to any installation fees that may apply. CUSTOMER is limited to one refund or credit per household for a maximum of 30 days of Service. Refunds/credits will be given only when request for cancellation of Service is received by SPARK Services within 45 days of installation of Service (30 days subscribing to the Service, plus 15-day grace period for formal request of refund/credit). Any equipment associated with the new subscription must be returned prior to release of refund/credit. Any state taxes, telecommunications service fees and other fees or charges that may apply are the responsibility of the CUSTOMER and will not be refunded or credited. Other restrictions per any offer may apply.
4. SPARK Services Property
All SPARK Services-provided equipment distributed to and/or installed for use in the CUSTOMER’s service location(s) by or on behalf of SPARK Services (“Equipment”) remains the property of SPARK Services. None of the Equipment shall become a fixture. SPARK Services Equipment is intended to service and reside at the specific Service location and is not to be used or relocated off premises without SPARK Services authorization. CUSTOMER must return all Equipment upon substitution of use or termination of Service. Failure to do so will result in a charge to be determined in accordance with SPARK Services then- current schedule of charges for non-returned Equipment, which amount shall be due immediately. CUSTOMER agrees to pay such charge whether the Equipment is lost (through theft or otherwise), damaged or destroyed.
5. Disruption of Service
All services provided by SPARK Services are provided on an “AS IS” and “AS AVAILABLE” basis. In no event shall SPARK Services be liable for any failure or interruption of Service, including without limitation those failures and interruptions resulting in part or entirely from circumstances beyond SPARK Services’ reasonable control. Subject to applicable law, SPARK Services may give credit with respect to CUSTOMER’s recurring monthly subscription fee for qualifying outages of Services.
6. SPARK Services Equipment
SPARK Services will repair and/or replace defective Equipment, if any, as long as such damage was not caused by misuse or other improper operations or handling by CUSTOMER. SPARK Services shall have the right to presume misuse or other improper operations or handling by CUSTOMER in the event CUSTOMER requests repair or replacement more than twice in any twelve (12) month period, or more than three times in any twenty-four (24) month period, and shall have no obligation to fulfill any such repair or replacement. SPARK Services is not responsible for the maintenance or repair of CUSTOMER- provided equipment, including but not limited to telephones, computers, modems, monitors, or any other related CUSTOMER-provided equipment. A service charge may be imposed upon the dispatch of a technician if there is damage to SPARK Services Equipment due to negligent use or abuse or if no fault is discovered in SPARK Services’ system(s) or Equipment. SPARK Services makes no warranties, with respect to Equipment or Service provided by SPARK Services or with respect to the compatibility of the Service or the Equipment with any CUSTOMER- provided equipment.
ALL EQUIPMENT IS PROVIDED “AS IS”, AND SPARK SERVICES HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTIBILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A SPECIFIC PURPOSE.
SPARK SERVICES SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING FROM THE USE, DEPLOYMENT, AND/OR FUNCTIONALITY OF ITS EQUIPMENT.
SPARK Services’ sole obligation and CUSTOMER’s sole remedy with respect to any liability or damage caused by CUSTOMER’s use or deployment of SPARK Services Equipment, shall be a refund of fees paid by CUSTOMER for such Equipment for the previous billing month/cycle.
7. CUSTOMER Property
SPARK Services assumes no responsibility and shall have no responsibility for the condition or repair of any CUSTOMER-provided equipment and/or software. CUSTOMER is responsible for the repair and maintenance of CUSTOMER-provided equipment and/or software. SPARK Services is not responsible or liable for any loss or impairment of Services provided by SPARK Services due in whole or in part to a malfunction, defect or otherwise caused by CUSTOMER-provided equipment and/or software.
Notwithstanding anything to the contrary, CUSTOMER agrees to allow SPARK Services and our agents the right (A) to install hardware in, (B) send software downloads to, and (C) install, configure, maintain, inspect or upgrade CUSTOMER-provided equipment to the extent necessary to provide Service. CUSTOMER warrants that CUSTOMER is either the owner of such equipment or that CUSTOMER has the authority to give SPARK Services access to it.
CUSTOMER agrees to pay any local, state or federal taxes and fees imposed or levied on or with respect to the Services, the Equipment or installation or service charges incurred with respect to the same.
9. Care of SPARK Services Property and Service
CUSTOMER agrees that neither CUSTOMER nor any other person (except SPARK Services authorized personnel) will: (A) open, tamper with, service, or make any alterations to the Equipment; nor (B) remove or relocate any Equipment from the service address of initial installation. Notwithstanding the foregoing, upon receipt of a request by CUSTOMER, SPARK Services shall relocate the SPARK Services Equipment for CUSTOMER within CUSTOMER’s home at a time mutually agreed to by SPARK Services and CUSTOMER. CUSTOMER may incur a charge for such relocation and should consult a current SPARK Services schedule of rates and charges prior to requesting such relocation. If the CUSTOMER moves residences outside of SPARK Services’ service area, CUSTOMER shall notify SPARK Services that this Agreement shall be terminated and the provisions of Section 13 shall apply to such termination.
10. Access to CUSTOMER Premises
CUSTOMER authorizes SPARK Services and its employees, agents, contractors and representatives to access and otherwise enter the CUSTOMER’s premises to install, inspect, maintain and/or repair the Equipment and, upon the termination of Service, to remove the same from the premises. SPARK Services’ failure to remove its Equipment shall not be deemed an abandonment thereof. If the installation and maintenance of Service are requested at Premises that, in SPARK Services’ sole discretion, are or may become hazardous or dangerous to our employees, the public or property, SPARK Services may refuse to install and maintain such Service.
11. Recording of Communications
Customer acknowledges and agrees that all communications between Customer and SPARK Services may be recorded or monitored by SPARK Services for quality assurance or other purposes.
12. Assignment or Transfer
This Agreement and the Services and/or Equipment supplied by SPARK Services are not assignable or otherwise transferable by CUSTOMER, without specific written authorization from SPARK Services.
13. Termination and Expiration
(a) Termination by CUSTOMER: Unless otherwise terminated, Agreement(s) shall automatically self-renew on a month-to-month basis. CUSTOMER acknowledges that upon such renewal all pricing is subject to change. To terminate any recurring service, CUSTOMERs must call 918-608- 8888, or provide a hardcopy written notice of termination to SPARK Services delivered to 821 N. York St., Suite “E”, Muskogee, OK 74403.
(b) Termination for Bankruptcy: SPARK Services shall have the right to terminate this Agreement immediately in the event that CUSTOMER makes an assignment for the benefit of creditors, or a voluntary or involuntary petition is filed by or against CUSTOMER under any law having for its purpose the adjudication of CUSTOMER as a bankrupt or the reorganization of CUSTOMER.
(c) Termination for Breach: In the event of any breach of this Agreement by CUSTOMER, the failure of CUSTOMER to abide by the rates, rules and regulations of SPARK Services, the failure of CUSTOMER to provide and maintain accurate registration information, or any illegal activity by the CUSTOMER using any Service provided by SPARK Services, this Agreement may, at SPARK Services’ option, be terminated and SPARK Services’ Equipment removed. Failure of SPARK Services to remove such Equipment shall not be deemed abandonment thereof. CUSTOMER shall pay reasonable collection and/or attorney’s fees to SPARK Services in the event that SPARK Services shall, in its discretion, find it necessary to enforce collection or to preserve and protect its rights under this Agreement. SPARK Services may terminate this Agreement or SPARK Services may reject an application or block access to or use of any component of any Service provided by SPARK Services for any reason including, but not limited to, if:
i. CUSTOMER violated this Agreement as to this or another SPARK Services account;
ii. the information required in the application process is or becomes incorrect, absent or incomplete;
iii. CUSTOMER threatened or harassed any SPARK Services employee, agent, contractor or representative;
iv. CUSTOMER’s credit card issuer refuses a charge or any other payment method fails to compensate SPARK Services;
v. there is a violation of the Terms of Service or other agreements (such as Term Agreements) with respect to any SPARK Services Service, as determined in the sole discretion of SPARK Services; or
vi. the amount of technical support required to be provided to CUSTOMER is excessive as determined in the sole discretion of SPARK Services.
CUSTOMER further agrees that in the event of termination pursuant to subsections (b) or (c), SPARK Services shall have no liability to CUSTOMER.
d. Obligations Upon Termination: The CUSTOMER agrees that upon termination of this Agreement:
i. Subject to 13.a, CUSTOMER will pay SPARK Services in full for CUSTOMER’s use of the Equipment and the Services, as applicable, up to the later of the effective date of termination of this Agreement, the date on which the SPARK Services Service has been disconnected, or the date on which the Equipment is returned to SPARK Services. The CUSTOMER agrees to pay SPARK Services on a pro-rated basis for any use by the CUSTOMER of any SPARK Services Service for a part of a month;
ii. CUSTOMER will promptly return all Equipment to SPARK Services. In the event that CUSTOMER fails to return any Equipment within ten (10) days of the termination of this Agreement in addition to Equipment charges contemplated in Section 13.d, CUSTOMER shall be liable to SPARK Services in accordance with SPARK Services’ then current schedule of charges for non-returned Equipment.
e. Renewal after Cancellation or Termination: CUSTOMER acknowledges and agrees that in the event of renewal after cancellation or termination of a SPARK Services Service, CUSTOMER shall be subject to the pricing, warranties, and Terms of Service as are effective at the time of such renewal.
14. Security Deposit
Any security deposit required of CUSTOMER for the Equipment or SPARK Services’ Service will be due and payable upon the first monthly billing. Such security deposits will be returned to CUSTOMER within sixty (60) days of termination of SPARK Services’ Service so long as payment has been made for all amounts due on CUSTOMER’s account and CUSTOMER has returned the SPARK Services Equipment undamaged.
15. Advance Payment
CUSTOMERs who are unable or unwilling to provide information to establish credit worthiness or who have an unsatisfactory credit rating may be required to make an advance payment. The advance payment will be equal to the applicable installation charge and one month of recurring charges, excluding taxes, fees and surcharges. The advance payment will appear as a credit and be applied to the first monthly bill. SPARK Services reserves the right to refuse service if the CUSTOMER fails to fulfill standard credit requirements. After service has been established, the CUSTOMER will be responsible for the payment of all applicable charges, including taxes, fees and surcharges to avoid discontinuance of service.
16. Content and Services
All services are subject to change in accordance with applicable law.
All rates are subject to change in accordance with applicable law.
18. Late Fee
If CUSTOMER’s account is 30 days past due, a reminder message will be included on CUSTOMER’s monthly bill. If CUSTOMER’s past due balance remains unpaid, CUSTOMER may be charged an applicable late fee in addition to CUSTOMER’s past due balance at SPARK Services’ then current rate. If CUSTOMER’s account remains unpaid CUSTOMER’s Services may be disconnected. CUSTOMER can avoid incurring late fees by paying CUSTOMER’s monthly bill promptly. Any late fees assessed are not considered interest credit service charges, finance charges or penalties. SPARK Services expects that CUSTOMER will pay for Services on a timely basis, and SPARK Services does not extend credit to customers.
SPARK Services assumes no liability for any program, services, content or information distributed on or through the Services and SPARK Services expressly disclaims any responsibility or liability for CUSTOMER’s use thereof. Further, SPARK Services shall not be responsible for any products, merchandise or prizes promoted or purchased through the use of the Services.
20. Right to Make Credit Inquiries
CUSTOMER authorizes SPARK Services to make inquiries and to receive information about CUSTOMER’s credit experiences, including CUSTOMER’s credit report, from others, to enter this information in CUSTOMER’s file, and to disclose this information concerning CUSTOMER to appropriate third parties for reasonable business purposes.
21. SPARK Services’ Reservation of Rights
SPARK Services reserves the right to refuse, suspend or terminate Service to any person at any time for any reason not prohibited by law. When practical, SPARK Services will provide notice that is reasonable under the circumstances before suspending or terminating Service to an existing CUSTOMER, and SPARK Services will provide any prior notice of suspension or termination that is required by law.
22. LIMITATION OF LIABILITY
THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION APPLY TO ANY ACTS, OMISSIONS AND NEGLIGENCE OF SPARK SERVICES AND ITS THIRD-PARTY SERVICE PROVIDERS, AGENTS AND SUPPLIERS (AND EACH OF THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES).
UNDER NO CIRCUMSTANCES SHALL SPARK SERVICES BE LIABLE TO CUSTOMER FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH, INCLUDING ANY ACTS OR OMISSIONS BY THIRD-PARTY SERVICE PROVIDERS, AGENTS OR SUBCONTRACTORS OF SPARK SERVICES, OR RELATING TO ANY SERVICES FURNISHED, WHETHER SUCH CLAIM IS BASED ON BREACH OF WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF THE CAUSES OF SUCH LOSS OR DAMAGES OR WHETHER ANY OTHER REMEDY PROVIDED HEREIN FAILS. SPARK SERVICES’ ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SERVICES OR ANY BREACH BY SPARK SERVICES OF ANY OBLIGATION SPARK SERVICES MAY HAVE UNDER THESE TERMS OF SERVICE OR APPLICABLE LAW, SHALL BE CUSTOMER’S ABILITY TO TERMINATE THE SERVICE OR TO OBTAIN THE REPLACEMENT OR REPAIR OF ANY DEFECTIVE EQUIPMENT PROVIDED BY SPARK SERVICES. IN NO EVENT SHALL SPARK SERVICES’ LIABILITY TO CUSTOMER FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER DURING THE PRECEDING THIRTY (30) DAY PERIOD.
The following provisions are important with respect to the Agreement between CUSTOMER and SPARK Services regarding services provided by SPARK Services.
PLEASE READ THEM CAREFULLY TO ENSURE THAT CUSTOMER UNDERSTANDS EACH PROVISION. This Agreement requires the use of arbitration to resolve disputes and otherwise limits the remedies available to CUSTOMER in the event of a dispute.
Subject to the “Exclusions” paragraph below, SPARK Services and CUSTOMER agrees to arbitrate disputes and claims arising out of or relating to this Agreement, the Services or marketing of the Services CUSTOMER has received from SPARK Services. Notwithstanding the foregoing, either party may bring an individual action on any matter or subject in small claims court.
THIS AGREEMENT MEMORIALIZES A TRANSACTION IN INTERSTATE COMMERCE.THE FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THESE ARBITRATION PROVISIONS.
A party who intends to seek arbitration must first send to the other a written notice of intent to arbitrate, entitled “Notice of Intent to Arbitrate” (“Notice”). The Notice to SPARK Services should be addressed to: CEO, SPARK Services, 821 N. York St., Suite “E”, Muskogee, OK 74403 (“Arbitration Notice Address”). The Notice must: (1) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. If we do not reach an agreement to resolve the claim within 30 days after the Notice is received, CUSTOMER or SPARK Services may commence an arbitration proceeding, in which all issues are for the arbitrator to decide (including the scope of the arbitration clause), but the arbitrator shall be bound by the terms of this Agreement.
The arbitration shall be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and the arbitration shall be administered by the AAA. The AAA Rules and fee information are available at “www.adr.org,” by calling the AAA at 1-800-778-7879, or by writing to the Arbitration Notice Address.
SPARK SERVICES SHALL BEAR THE COST OF ANY ARBITRATION FILING FEES AND ARBITRATOR’S FEES FOR CLAIMS OF UP TO $75,000. CUSTOMER IS RESPONSIBLE FOR ALL OTHER ADDITIONAL COSTS THAT CUSTOMER INCURS IN THE ARBITRATION INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES OR EXPERT WITNESS COSTS UNLESS OTHERWISE REQUIRED OF SPARK SERVICES UNDER APPLICABLE LAW.
If the arbitrator’s award exceeds $75,000, either party may appeal such award to a three- arbitrator panel administered by the AAA and selected according to the AAA Rules, by filing a written notice of appeal within 30 days after the date of entry of the arbitration award. The appealing party must provide the other party with a copy of such appeal concurrently with its submission of the appeals notice to AAA. The three-arbitrator panel must issue its decision within 120 days of the date of the appealing party’s notice of appeal. The decision of the three- arbitrator panel shall be final and binding, except for any appellate right which may exist under the Federal Arbitration Act.
The parties may agree that arbitration will be conducted solely on the basis of the documents submitted to the arbitrator, via a telephonic hearing, or by an in-person hearing as established by AAA rules.
CUSTOMER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND SPARK SERVICES ARE WAIVING THE RIGHT TO A TRIAL BY JUDGE OR JURY.
Unless SPARK Services and CUSTOMER agree otherwise in writing, all hearings conducted as part of the arbitration shall take place in the county (or parish) of CUSTOMER’s billing address.
The arbitrator may award injunctive relief only in favor of the party seeking relief, only to the extent sought, and only to the extent necessary to provide the specific relief warranted by such individual’s claim.
The parties agree that the arbitrator must give effect to the terms of this Agreement.
CUSTOMER AND SPARK SERVICES AGREE THAT CLAIMS MAY ONLY BE BROUGHT IN CUSTOMER’S INDIVIDUAL CAPACITY AND NOT ON BEHALF OF, OR AS PART OF, A CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Furthermore, unless both CUSTOMER and SPARK Services agree otherwise in writing, the arbitrator may not consolidate proceedings or more than one person’s claims and may not otherwise preside over any form of representative or class proceeding. If this specific paragraph is found to be unenforceable, then the entirety of these arbitration provisions shall be null and void and rendered of no further effect with respect to the specific claim at issue.
Right to Opt Out. If CUSTOMER does not wish to be bound by these arbitration provisions, CUSTOMER must notify SPARK Services in writing within 30 days of (a) the date that this arbitration provision becomes effective, if CUSTOMER is an existing customer, or (b) the date that CUSTOMER first subscribes to the Service(s). CUSTOMER may opt out by mail to the Arbitration Notice Address. CUSTOMER’s written notification to SPARK Services must include CUSTOMER’s name, address, and SPARK Services account number as well as a clear statement that CUSTOMER does not wish to resolve disputes with SPARK Services through arbitration. CUSTOMER’s decision to opt out of this arbitration provision will have no adverse effect on CUSTOMER’s relationship with SPARK Services or the delivery of Services to CUSTOMER by SPARK Services.
Severability. If any clause within these arbitration provisions is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN THE EVENT SOME OR ALL OF THESE ARBITRATION PROVISIONS IS DETERMINED TO BE UNENFORCEABLE FOR ANY REASON, OR IF A CLAIM IS BROUGHT THAT IS FOUND BY A COURT TO BE EXCLUDED FROM THE SCOPE OF THESE ARBITRATION PROVISIONS, BOTH PARTIES AGREE TO WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY TRIAL BY JURY.
For purposes of the foregoing sentence only, in the event such waiver is found to be unenforceable, it shall be severed from this Agreement, rendered null and void and of no further effect without affecting the rest of the arbitration provisions set forth herein.
EXCLUSIONS. CUSTOMER AND SPARK SERVICES AGREE THAT THE FOLLOWING CLAIMS OR DISPUTES SHALL NOT BE SUBJECT TO ARBITRATION:
(1) ANY INDIVIDUAL ACTION BROUGHT BY CUSTOMER OR BY SPARK SERVICES ON ANY MATTER OR SUBJECT THAT IS WITHIN THE JURISDICTION OF A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS.
(2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS.
(3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF SERVICE.
The foregoing arbitration provisions shall survive the termination of this Agreement.
25. Entire Agreement
These Terms and Conditions (including the Terms of Service) constitutes the entire agreement between the CUSTOMER and SPARK Services. No undertaking, representation or warranty made by an agent or representative of SPARK Services in connection with the sale, installation, maintenance or removal of SPARK Services’ Services or Equipment shall be binding on SPARK Services except as expressly included herein. CUSTOMER agrees that, if any portion of this Agreement is held invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible, and if severed or rendered null and void thereby, the remaining portions will remain in full force and effect. If SPARK Services fails to insist upon or enforce strict performance of any provision of this Agreement, it does not thereby waive any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement.
The following policies are effective as of May 1, 2017. For products sold prior to that date, the terms of the original sale and warranty will apply.
1. AGREEMENT TERM
This Agreement shall continue in perpetuity unless terminated in writing either by the Customer, or a duly-authorized agent of SPARK Services.
SPARK Services shall provide the Services during the Service Period to Customer at the site(s) identified in the Service Request(s). “Service Period” is the time period starting on the date the Services are functional in all material respects and available for use (the “Turn-up Date”), and continuing for the number of months specified in the Service Request(s).
3. STANDARD PAYMENT TERMS
Customer shall pay fees and charges for the Services in the amount specified on the Service Request in accordance with this Agreement. A one-time charge (“OTC”) is a nonrecurring fee for construction, Service installation charge(s), repair, replacement, or any other nonrecurring costs or charges. “Equipment” means the components (e.g., any gateway or edge electronic device, node, router, switch, communications lines/cables, etc.) that make up the Network. “Network” means all of the physical elements necessary to provide the Services.
Customer shall pay all charges associated with the Service(s), as set forth or referenced in the applicable Service Request(s) or invoiced by SPARK Services. These charges may include, but are not limited to a monthly service fee (“MSF”), nonrecurring fees for construction, installation, repair, replacement or other one-time charges (“OTC”), usage charges such as, pay-per-view charges, and applicable federal, state, and local taxes, fees, surcharges and recoupments (however designated), MSFs shall be subject to increases attributable to retransmission and/or other similar costs imposed upon SPARK Services, SPARK Services shall provide not less than thirty (30) days prior notice to Customer of any MSF change.
(b) Taxes, Surcharges, and Fees
Customer shall pay any sales, use, property, excise or other taxes, and governmental charges (excluding income taxes) arising under this Agreement, in addition to any surcharges that may be imposed as may be permitted under and consistent with applicable law. A copy of Customer’s tax exemption document, if applicable, must be provided to SPARK Services to certify tax-exempt status. Tax-exempt status shall not relieve Customer of its obligation to pay any applicable fees. SPARK Services reserves the right from time to time to change the surcharges for Services under this Agreement to reflect the charges or payment obligations imposed on SPARK Services which SPARK Services is permitted or required under applicable law to pass through to Customer (e.g., universal service fund (“USF”) charges, other government fees etc.).
(c) Change Requests
Any charges associated with Service and Equipment installations, changes, or additions requested by Customer subsequent to executing a Service Request for the applicable site are the sole financial responsibility of Customer. SPARK Services shall notify Customer, in writing, of any additional OTCs and/or adjustments to MSFs associated with or applicable to such Customer change requests prior to making any such additions or modifications. Customer’s failure to accept such additional charges within three days of receiving such notice shall be deemed a rejection by Customer, and SPARK Services shall not be liable to perform any work giving rise to such charges. For accepted charges, Customer shall be assessed such additional OTCs and/or adjustments of the MSFs either (i) in advance of implementation of the change request or (ii) beginning on Customer’s next and/or subsequent invoice(s).
(d) Site Visits and Repairs
If Customer’s misuse, abuse or modification of the Services, Equipment or Network results in a visit to the Customer site for inspection, correction or repair, SPARK Services may charge Customer a site visit fee as well as charges for any resulting Equipment or Network repair or replacement, which may be necessary.
(e) Invoicing Errors.
Customer must provide written notice to SPARK Services of any invoice errors or disputed charges within 30 days of the invoice date on which the errors and/or disputed charges appear for Customer to receive any credit that may be due. Customer must have and present a reasonable basis for disputing any amount charged.
(f) Late Fees
Undisputed amounts not paid within 30 days of the invoice date shall be past due and subject to a late fee of not more than 1.5% per month or the maximum amount permitted by law.
If Services are suspended due to late payment, SPARK Services may require that Customer pay all past due charges, a reconnect fee, and one or more MSFs in advance before reconnecting Services.
(h) Collection Fees
SPARK Services may charge a reasonable service fee for all returned checks and bank card, credit card or other charge card charge-backs. Customer shall be responsible for all expenses, including reasonable attorney fees and collection costs, incurred by SPARK Services in collecting any unpaid amounts due under this Agreement.
4. SERVICE LOCATION ACCESS AND INSTALLATION
SPARK Services will require reasonable access to each service location listed on a Service Request (“Service Location”) as necessary for SPARK Services to review, install, inspect, maintain or repair any Equipment or Materials necessary to provide the Services. If Customer owns or controls the Service Location(s), Customer grants SPARK Services permission to enter the Service Location(s) for the exercise of such right. If a Service Location is not owned and/or controlled by Customer, Customer will obtain, with SPARK Services’ assistance, appropriate right of access. If such right of access for SPARK Services is not obtained by either party, then SPARK Services’ obligations with respect to such Service Location shall be considered null and void.
(b) Installation Review; Subsequent Interference
SPARK Services may perform an installation review of each Service Location prior to installation of the Services. Upon request, Customer shall provide SPARK Services with accurate site and/or physical network diagrams or maps of a Service Location, including electrical and other utility service maps, prior to the installation review. If SPARK Services determines that safe installation and/or activation of one or more of the Services will have negative consequences to SPARK Services’ personnel or Network or cause technical difficulties to SPARK Services or its customers, SPARK Services may terminate the Service Request effective upon written notice to Customer or may require Customer to correct the situation before proceeding with installation or activation of the Services.
If during a Service Period, or any renewal thereof, (i) proper operation of Equipment or provision of a Service is no longer unhindered or possible as a result of interference or obstruction due to any cause other than SPARK Services or (ii) such interference/obstruction or its cause may endanger, hinder, harm or injure SPARK Services’ personnel or Network and/or cause technical difficulties to SPARK Services or its customers, SPARK Services may terminate the affected Service Request(s) without liability upon written notice to Customer.
(c) Site Preparation
Customer shall be responsible for necessary preparations at its location(s) for delivery and installation of Equipment and the installation and ongoing provision of Services, including the relocation of Customer’s equipment, furniture and furnishings as necessary to access the Equipment or Services. Upon request, Customer shall provide any available electrical, utility service, and/or general physical network diagrams or maps prior to installation or maintenance work to be undertaken by SPARK Services.
SPARK Services will schedule one or more installation visits with Customer. Customer’s authorized representative must be present during installation. If during the course of installation SPARK Services determines additional work is necessary to enable SPARK Services to deliver the Services to the Service Location, SPARK Services will notify Customer of any additional OTCs. If Customer does not agree to pay such OTCs by executing a revised Service Request within five business days of receiving the same, Customer and SPARK Services shall each have the right to terminate the applicable Service Request. Customer shall connect Customer’s computer or network to applicable SPARK Services-provided Equipment to enable access to the Services. SPARK Services shall be responsible for reasonable restoration efforts necessary to address any displacement resulting from excavation.
(e) Ongoing Visits
SPARK Services will need periodic access for inspection, operation and maintenance of the Network. Except in emergency situations, SPARK Services will obtain approval from Customer (not to be unreasonably withheld or delayed) before entering Customer Premises. At SPARK Services’ request, Customer, or a representative designated by Customer, will accompany SPARK Services’ employees or agents into any unoccupied unit for any purpose relating to the Equipment.
5. EQUIPMENT AND MATERIALS
(a) Responsibilities and Safeguards
Except as otherwise provided in this Agreement or any Service Request(s), neither party shall be responsible for the maintenance or repair of cable, electronics, structures, Equipment or materials owned by the other party; provided, however, that subject to the indemnification limitations set forth in this Agreement, each party shall be responsible to the other for any physical damage or harm such party causes to the other party’s personal or real property through the damage – causing party’s negligence or willful misconduct.
i. Safeguard Equipment against others;
ii. Not add other equipment nor move, modify, disturb, alter, remove, nor otherwise tamper with any portion of the Equipment;
iii. Not hire nor permit anyone other than personnel authorized by SPARK Services acting in their official capacity to perform any work on Equipment; and
iv. Not move nor relocate Equipment to another location or use it at an address other than the Service location without the prior written consent of SPARK Services.
Any unauthorized connection or other tampering with the Services or Equipment shall be cause for immediate suspension of Services, termination of this Agreement and/or legal action, and SPARK Services shall be entitled to recover damages, including the value of any Services and/or Equipment obtained in violation of this Agreement in addition to reasonable collection costs including reasonable attorney fees.
(b) Customer Security Responsibilities
Customer shall be responsible for the implementation of reasonable security measures and procedures with respect to use of and access to the Service and/or Equipment. SPARK Services may suspend the Services upon learning of a breach of security and will attempt to contact Customer in advance, if practicable.
Notwithstanding any other provision contained in this Agreement to the contrary, all Equipment and materials installed or provided by SPARK Services are and shall always remain the property of SPARK Services, shall not become a fixture to the Premises, and must be returned to SPARK Services at any time Services are disconnected in the condition in which they were received subject to ordinary wear and tear. Customer will not sell, lease, assign nor encumber any Equipment. Customer shall not obtain or acquire title to, interest or right (including intellectual property rights) in the Service or Equipment other than to the limited extent of use rights expressly granted under this Agreement.
(d) Equipment Return, Retrieval, Repair and Replacement
Immediately upon termination of this Agreement and/or Service Request(s) (“Termination”), at the discretion of SPARK Services, Customer shall return, or allow SPARK Services to retrieve, the Equipment supplied by SPARK Services to Customer. Failure of Customer to return, or allow SPARK Services to retrieve, Equipment within 10 days after Services are terminated will result in a charge to Customer’s account equal to the retail cost of replacement of the unreturned Equipment. Customer shall pay for the repair or replacement of any damaged Equipment, except such repairs or replacements as may be necessary due to normal and ordinary wear and tear or material/workmanship defects, together with any costs incurred by SPARK Services in obtaining or attempting to regain possession of such Equipment, including reasonable attorney fees.
6. ADMINISTRATIVE WEB SITE
SPARK Services may, at its sole option, make one or more administrative web sites available to Customer in connection with Customer’s use of the Services (each an “Administrative Web Site”). SPARK Services may furnish Customer with one or more user identifications and/or passwords for use on the Administrative Web Site. Customer shall be responsible for the confidentiality and use of such user identifications and/or passwords and shall immediately notify SPARK Services if there has been an unauthorized release, use or other compromise of any user identification or password. In addition, Customer agrees that its authorized users shall keep confidential and not distribute any information or other materials made available by the Administrative Web Site. Customer shall be solely responsible for all use of the Administrative Web Site, and SPARK Services shall only be entitled to rely on all Customer uses of and submission to the Administrative Web Site as authorized by Customer. SPARK Services shall not be liable for any loss, cost, expense of other liability arising out of any Customer use of the Administrative Web Site, SPARK Services may change or discontinue the Administrative Web Site, or Customer’s right to use the Administrative Web Site, at any time. Additional terms and policies may apply to Customer’s use of the Administrative Web Site. These terms and policies will be posted on the site.
9. SUPPLEMENTAL SERVICES
The following Subsections shall only apply in the event the referenced supplemental service has been selected by and are being delivered to Customer. The supplemental services (also “Services”) may be made up of software and hardware components. SPARK Services shall ensure the supplemental services are operational and updated from time-to-time based on manufacturer-sent updates. Except to the limited extent described in the foregoing sentence, SPARK Services makes no warranties of any kind (express or implied) regarding the supplemental services and hereby disclaims any and all warranties pertaining thereto (including implied warranties of title, noninfringement, merchantability, and fitness for a particular purpose). SPARK Services does not have title to and is not the manufacturer of any software or hardware components of the supplemental services nor is SPARK Services the supplier of any components of such software or hardware. Customer shall return or destroy all software components provided to Customer upon the termination of the applicable Service Request, and in the case of the destruction thereof, shall, upon request, provide SPARK Services with certification that such components have been destroyed.IN NO EVENT SHALL SPARK SERVICES BE LIABLE FOR ANY DAMAGES ARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF ANY SUPPLEMENTAL SERVICES.
10. NO THIRD-PARTY HARDWARE OR SOFTWARE SUPPORT
Customer is responsible for the installation, repair and use of Customer-supplied third-party hardware and/or software. For purposes of this Agreement the Hosting Software shall be considered third party software. SPARK Services does not support third-party hardware or software supplied by Customer. Any questions concerning third-party hardware or software should be directed to the provider of that product. SPARK Services assumes no liability or responsibility for the installation, maintenance, compatibility or performance of third party software, any Customer-supplied hardware or software with the Services. If such third-party equipment or software impairs the Services, Customer shall remain liable for payments as agreed (if any) without recourse for credit or prorated refund for the period of impairment. SPARK Services has no responsibility to resolve the difficulties caused by such third-party equipment or software. If, at Customer’s request, SPARK Services should attempt to resolve difficulties caused by such third-party equipment or software, such efforts shall be performed at SPARK Services’ discretion and at then-current commercial rates and terms.
11. CUSTOMER USE
Customer shall not re-sell or re-distribute access to the Service(s) or system capacity, or any part thereof, in any manner without the express prior written consent of SPARK Services. Customer shall not use or permit third parties to use the Service(s), including the Equipment and software provided by SPARK Services for any illegal purpose. Customer shall not interfere with other customers’ use of the Equipment or Services or disrupt the SPARK Services Network, backbone, nodes or other Services. Violation of any part of this Section is grounds for immediate Termination of this Agreement and/or all Service Requests in addition to any other rights or remedies SPARK Services may have.
SPARK Services will use commercially reasonable efforts in keeping with normal industry standards to ensure that the Service is available to Customer 24 hours per day, seven days per week. It is possible, however, that there will be interruptions of Service. The Service may be unavailable from time-to-time either for scheduled or unscheduled maintenance, technical difficulties, or for other reasons beyond SPARK Services’ reasonable control. Temporary service interruptions/outages for such reasons, as well as service interruptions/outages caused by Customer, its agents and employees, or by a Force Majeure Event, shall not constitute a failure by SPARK Services to perform its obligations under this Agreement, and Customer will not hold SPARK Services at fault for loss of Customer revenue or lost employee productivity due to Service outages.
14. DEFAULT; SUSPENSION OF SERVICE; TERMINATION
No express or implied waiver by SPARK Services of any event of noncompliance shall in any way be a waiver of any further subsequent event of noncompliance. Nothing herein, including Termination, shall relieve Customer of its obligation to pay SPARK Services all amounts due.
(a) Default by Customer
Customer shall be in default under this Agreement if Customer does one or more of the following things (each individually to be considered a separate event of default) and Customer fails to correct each such noncompliance within 30 days of receipt of written notice (“Default”):
i. Customer is more than 30 days past due with respect to any payment required hereunder;
ii. Customer otherwise has failed to comply with the terms of this Agreement or any other Service Request(s) incorporated herein.
(b) Termination for Convenience
Notwithstanding any other term or provision in this Agreement, Customer shall have the right to terminate a Service Request, or this Agreement in whole or part, at any time upon thirty (30) days prior written notice to SPARK Services, and subject to payment of all outstanding amounts due, any applicable Termination Charges, and the return of any SPARK Services Equipment.
(c) SPARK Services’ Right to Terminate and Termination Charge
If Customer is in Default, SPARK Services shall have the right, at its option, without prior notice, and in addition to any other rights of SPARK Services expressly set forth in this Agreement and any other remedies it may have under applicable law to:
i. Immediately suspend Services to Customer until such time as the underlying noncompliance has been corrected without affecting Customer’s on-going obligation to pay SPARK Services any amounts due under this Agreement (e.g., the MSFs) as if such suspension of Services had not taken place;
ii. Terminate the Services, this Agreement or the applicable Service Request(s).
If Termination is due to Customer Default or is elected/done by Customer for convenience, Customer must, upon request, pay SPARK Services a Termination charge (a “Termination Charge”), which the parties recognize as liquidated damages. This Termination Charge shall be equal to 50% of the unpaid balance of the MSFs that would have been due throughout the applicable Service Period plus 100% of (1) the outstanding balance of any and all OTCs plus (2) any and all previously waived OTCs.
(d) Default by SPARK Services
SPARK Services shall be in default under this Agreement if SPARK Services fails to comply with the terms of this Agreement and/or any or all of the applicable Service Request(s), and SPARK Services fails to remedy each such noncompliance or occurrence within 30 days of receipt of written notice from Customer describing in reasonable detail the nature, scope and extent of the default or noncompliance (“SPARK Services Default”).
(e) Customer’s Right to Terminate and Termination Charge
i. In the event Customer wishes to terminate a Service without cause, Customer shall be liable for the same Termination Charges as described above.
ii. Customer shall have the right, at its option and in addition to any other remedies it may have, to terminate any applicable Service Request(s), if the underlying event of SPARK Services Default is limited to Services provided under the applicable Service Request(s) or this Agreement, if such SPARK Services Default is not so limited.
iii. If Termination is due to SPARK Services Default, SPARK Services shall reimburse Customer for any pre-paid, unused MSFs attributable to such terminated Service Request(s). In addition, if Termination is due to SPARK Services Default within one year of the applicable Turn-Up Date, SPARK Services shall pay a Termination Charge, which the parties recognize as liquidated damages, equal to a portion of any OTC that has already been paid by Customer to SPARK Services relative to Service at the sites covered by the terminated Service Request. This Termination Charge shall be equal to the product of a) the number of months (including partial months) remaining in the initial 12 months of the initial Service Period at the time of Termination and b) a ratio in which the numerator is the total of OTCs paid to date and the denominator is 12.
15. LIMITATION OF LIABILITY. PLEASE READ THIS SECTION CAREFULLY, IT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY.
(a) Limited Warranty. At all times during the Service Period, SPARK Services warrants that it will use commercially reasonable efforts in keeping with industry standards to cause the Services to be available to Customer. SPARK Services does not warrant that Services will be error free.
THE FOREGOING LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL EXPRESS AND IMPLIED WARRANTIES WHATSOEVER.
EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, SPARK SERVICES MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE AND SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING ANY EXPRESS PROVISIONS OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL RELIANCE OR PUNITIVE DAMAGES (INCLUDING LOST BUSINESS, REVENUE, PROFITS, OR GOODWILL) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF SERVICES, INCLUDING ANY SERVICE IMPLEMENTATION DELAYS AND/OR FAILURES, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF THE PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. SPARK SERVICES’ MAXIMUM LIABILITY TO CUSTOMER WITH REGARD TO ANY SERVICE SHALL NOT EXCEED THE AMOUNT, EXCLUDING OTCS, PAID OR PAYABLE BY CUSTOMER TO SPARK SERVICES FOR THE APPLICABLE SERVICE IN THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
THE FOREGOING LIMITATIONS APPLIES TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS.
Any warranty claim by Customer must be made within 30 days after the applicable Services have been performed. SPARK Services’ sole obligation and Customer’s sole remedy, with respect to any breach of the limited warranty set forth herein, shall be a prorated refund of the fees paid by Customer based on the period of time when the Services are out of compliance with this limited warranty provision.
(b) Damage, Loss or Destruction of Software Files and/or Data. Customer uses the Services and/or Equipment supplied by SPARK Services at its sole risk. SPARK Services does not manufacture the Equipment, and the Services and Equipment are provided on an “as is basis” without warranties of any kind. SPARK Services assumes no responsibility whatsoever for any damage to or loss or destruction of any of Customer’s hardware, software, files, data or peripherals which may result from Customer’s use of any Service. SPARK Services does not warrant that data or files sent by or to Customer will be transmitted in uncorrupted form or within a reasonable period of time.
(c) Unauthorized Access
If Customer chooses to run or offer access to applications from its equipment that permits others to gain access through the Network, Customer must take appropriate security measures. Failing to do so may cause immediate termination of Customer’s Service by SPARK Services without liability for SPARK Services. SPARK Services is not responsible for and assumes no liability for any damages resulting from the use of such applications, and Customer shall hold harmless and indemnify the SPARK Services Indemnified Parties from and against any claims, losses, or damages arising from such use. SPARK Services is not responsible and assumes no liability for losses, claims, damages, expenses, liability, or costs resulting from others accessing Customer’s computers, its internal network and/or the Network through Customer’s equipment.
(d) Force Majeure Event
Neither Party shall be liable to the other for any delay, inconvenience, loss, liability or damage resulting from any failure or interruption of Services, directly or indirectly caused by circumstances beyond such party’s control, including but not limited to denial of use of poles or other facilities of a utility company, labor disputes, acts of war or terrorism, criminal, illegal or unlawful acts, natural causes, mechanical or power failures, or any Request, law or ordinance in any way restricting the operation of the Services. Changes in economic, business or competitive condition shall not be considered a Force Majeure Event.
In addition to its specific indemnification responsibilities set forth elsewhere in this Agreement and as permissible under applicable law, Customer at its own expense, shall indemnify, defend and hold harmless SPARK Services and its directors, employees, representatives, officers and agents, (the “Indemnified Parties”) against any and all claims, liabilities, lawsuits, damages, losses, judgments, costs, fees and expenses incurred by SPARK Services Indemnified Parties, including reasonable attorney fees and court costs incurred by SPARK Services Indemnified Parties under this Agreement, to the full extent that such arise from Customer’s misrepresentation with regard to or noncompliance with the terms of this Agreement and any or all Service Requests, Customer’s failure to comply with applicable law, and/or Customer’s negligence or willful misconduct. SPARK Services Indemnified Parties shall have the right but not the obligation to participate in the defense of the claim at Customer’s cost and Customer shall cooperate with SPARK Services Indemnified Parties in such case.
Title to the Equipment shall remain with SPARK Services during the applicable Service Period. Customer shall keep that portion of the Equipment located on Customer premises free and clear of all liens, encumbrances and security interests. Upon termination of Service or expiration of a Service Request’s Service Period for a specific site, SPARK Services shall have the right to remove all Equipment components and/or leave any of such components in place, assigning title and interest in such components to Customer, it being understood that no further notice or action is required to accomplish the assignment contemplated hereunder. SPARK Services shall have the right to remove the Equipment and all components within 60 days after such termination.
18. COMPLIANCE WITH LAWS
Customer shall not use or permit third parties to use the Services in any manner that violates applicable law or causes SPARK Services to violate applicable law. Both parties shall comply with all applicable laws and regulations when carrying out their respective duties hereunder.
20. GENERAL CUSTOMER REPRESENTATIONS AND OBLIGATIONS
Customer represents to SPARK Services (a) that Customer has the authority to execute, deliver and carry out the terms of this Agreement and associated Service Requests and (b) that any person who accesses any Services through Customer’s equipment or through the Network facilities in Customer’s Premises will be an authorized user, will use the Service, Network and/or Network facilities in an appropriate and legal manner, and will be subject to the terms of this Agreement. Customer is responsible for ensuring its users of the Service comply with the terms of this Agreement. Customer shall be responsible for all access to and use of the Service by means of Customer’s equipment, whether or not Customer has knowledge of or authorizes such access or use. Customer shall be solely liable and responsible for all charges incurred and all conduct through either authorized or unauthorized use of the Service, until informs SPARK Services of any breach of security.
Any notices to be given under this Agreement shall be validly given or served only if in writing and sent by nationally recognized overnight delivery service or certified mail, return receipt requested, to the following addresses:
If to SPARK Services:
SPARK I/T Services, LLC
821 N. YORK STREET, SUITE “E” MUSKOGEE, OK 74403
Notices to Customer shall be sent to the Customer billing address.
Each party may change its respective address(es) for legal notice by providing notice to the other party.
(a) Entire Agreement; Signatures. This Agreement and any related, executed Service Request(s) constitute the entire Agreement with respect to the Services, Network and Equipment. This Agreement supersedes all prior understandings, promises and undertakings, if any, made orally or in writing by or on behalf of the parties with respect to the subject matter of this Agreement. This Agreement may be executed in one or more counterparts, each of which is an original, but together constituting one and the same instrument. Execution of a facsimile copy will have the same force and effect as execution of an original, and a facsimile signature will be deemed an original and valid signature.
(b) No Amendments, Supplements or Changes. Except for pricing terms as set forth in this Agreement, this Agreement and the associated executed Service Request(s) may not be amended, supplemented or changed without both parties’ prior written consent.
(c) No Assignment or Transfer. The parties may not assign or transfer (directly or indirectly by any means, by operation of law or otherwise) this Agreement and the associated Service Request(s), or their rights or obligations hereunder to any other entity without first obtaining written consent from the other party, which consent shall not be unreasonably withheld; provided, however, that without Customer’s consent, SPARK Services may assign this Agreement and the associated executed Service Request(s) to affiliates controlling, controlled by or under common control with SPARK Services, or to its successor-in-interest if SPARK Services sells some or all of the underlying communications system.
(d) Severability. If any term, covenant, condition or portion of this Agreement or any related, executed Service Request(s) shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or any related, executed Service Request(s) shall not be affected and each remaining term, covenant or condition shall be valid and enforceable to the fullest extent permitted by law.
(e) Governing Law. The law of the state in which the Services are provided (excluding its conflicts of law provisions) shall govern the construction, interpretation, and performance of this Agreement, except to the extent superseded by federal law. IN ANY AND ALL CONTROVERSIES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, ITS NEGOTIATION, ENFORCEABILITY OR VALIDITY, OR THE PERFORMANCE OR BREACH THEREOF OR THE RELATIONSHIPS ESTABLISHED HEREUNDER, CUSTOMER AND SPARK SERVICES EACH HEREBY WAIVES ITS RIGHT, IF ANY, TO TRIAL BY JURY.
(f) Both parties had the opportunity to review and participate in the negotiation of the terms of this Agreement and the Service Request(s) and, accordingly, no court construing this Agreement and any Service Request(s) shall construe it more stringently against one party than against the other.
(g) No Third-Party Beneficiaries. The terms of this Agreement and the parties’ respective performance of obligations as described are not intended to benefit any person or entity not a party to this Agreement, and the consideration provided by each party hereunder only runs to the respective parties hereto, and that no person or entity not a party to this Agreement shall have any rights hereunder nor the right to require performance of obligations by either of the parties hereto.
(h) Waiver. Except as otherwise provided herein, the failure of SPARK Services to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
BILLING RATES (DEMAND SERVICES)
(i) The maximum normal labor rate that will be charged by SPARK Services for “Demand Services” (I.E. billable services provided upon request of a customer via Service Order, telephone request, or other such method of order entry) shall be $115.00 per clock hour, billable in a minimum increment of 1⁄2 hour. This labor rate shall apply during published open business hours only.
(ii) A call-out charge of 50% per hour of the hourly maximum labor rate will be applied for emergency demand service call-outs occurring after normal business hours. There is a two-hour minimum labor charge on an emergency call-out at the emergency rate.
(iii) The actual labor rate charged may be reduced by participation in SPARK Services promotion(s), combined with either on-line or physical registration of the Customer for those promotion(s) to the satisfaction of SPARK Services, utilization of such promotional coupon(s) as may be distributed by SPARK Services from time to time in various forums and/or publications, or under exceptional circumstances authorization from the SPARK Services CEO on a case-by-case basis.
(iv) Travel time on Demand Services calls will be billed “doorstep-to-doorstep”, beginning from the time the technician leaves either (A) the SPARK Services office, or (B) the location of the last completed service call. The travel time will be concluded upon the return of the technician to the SPARK Services office. Travel time will be billed at 50% of the normal hourly labor rate. Travel rates may also be discounted per (iii) above.
(v) In the event that long-distance or overnight travel is required, meals, lodging, and other incidental expenses will be billed after-the-fact at the actual expense incurred to SPARK Services.
(vi) Professional service labor rates for outside personnel (I.E. network engineers, SEO services, etc…) will be billed via quotation only as needed. Full pre-payment for these professional services as per quote may be required before the service(s) may be rendered.
(vii) SPARK Services reserves the right to change, modify, and revise these labor rates with fourteen (14) days’ notice via the SPARK Services website, located at www.sparkservices.net, via EMAIL notice, written posted notification in the SPARK Services office, or a combination of any of the aforementioned methods of notification.