1. Your Acceptance

Welcome to the Sparkx Fly Terms of Service. This is an agreement (“Agreement”) between Sparkx Fly, LLC(“Sparkx Fly”), the owner and operator of www.sparkxfly.com and the Sparkx Fly software, mobile application, components, and any associated services offered (collectively the “Platform”) and you (“you”, “your”, or “User”).  

Throughout this Agreement, the words “Sparkx Fly,”  “us,”  “we,” and “our,” refer to our company, Sparkx Fly, as is appropriate in the context of the use of the words.  

PLEASE BE AWARE THAT THERE ARE ARBITRATION AND CLIENT ACTION PROVISIONS THAT MAY AFFECT YOUR RIGHTS.

By clicking “I agree”, subscribing to the Platform, and accessing or using the Platform you agree to be bound by this Agreement and the Privacy Policy.  We may amend this Agreement or the Privacy Policy and may notify you when we do so.  If you do not agree to this Agreement or the Privacy Policy please cease using our Platform immediately. 

2. Registering for an Account

Users may be required to register on the Platform before accessing portions of the Platform.  Your information will be collected and disclosed in accordance with our Privacy Policy. All users are required to provide truthful, up-to-date, and accurate information when registering for our Platform and must be over the age of 17.  If you are under 18 years of age you must have your parent or legal guardian agree to this Agreement.  Users between the age of 17 and 18 are prohibited from using any dating service features found on the Platform.  We reserve the right to verify all user credentials and to reject any users. You are entirely responsible for maintaining the confidentiality of password and account and for any and all activities that occur under your account. You agree to notify Sparkx Fly immediately of any unauthorized use of your account or any other breach of security. Sparkx Fly will not be liable for any losses you incur as a result of someone else using your password or account, either with or without your knowledge.  If you are creating an account on behalf of an organization, you represent and warrant that you are duly authorized and have the power and authority to enter into this Agreement on behalf of that organization.  The Platform allows Users 17years of age or older to sign up for the Platform.    

3. Access 

After registering for our Platform we shall grant you a personal, non-transferable, non-assignable, limited, fully revocable right to access the Platform as permitted by us and in accordance with this Agreement.  Where you download any mobile application or software to access the Platform we grant you a personal, non-transferable, non-assignable, limited, fully revocable license to use and access the platform. All rights not explicitly granted are reserved for Sparkx Fly.   If you breach this Agreement, your access or license to use our Platform may be terminated at our discretion.  Additionally, we may revoke your access to our Platform if we believe that your actions may harm us, our business interests, or any third party rights.  Failure by us to revoke your access does not act as a waiver of your conduct

4. Platform Ownership

You acknowledge the Platform including any structure, organization, and code, any hosted services, and all mobile applications or software components are proprietary to Sparkx Fly and/or Sparkx Fly’s licensors and that Sparkx Fly and/or its licensors retains exclusive ownership of the Platform, any documentation, information and any and all other intellectual property rights relating to the Platform, including all modifications, copies, enhancements, derivatives, and other software and materials developed hereunder by Sparkx Fly.  You shall not sell, copy, reproduce, transfer, publish, disclose, display or otherwise make available the Platform, access to the Platform, or any portions of the Platform including any modifications, enhancements, derivatives, and other software and materials developed hereunder by Sparkx Fly to others in violation of this Agreement.  You shall not remove any proprietary, copyright, trademark, or service mark legend from any portion of any of the Platform, including any modifications, enhancements, derivatives, and other software and materials developed by Sparkx Fly.  All rights not expressly granted are reserved for Sparkx Fly.

5. Platform and Services 

The Sparkx Fly Platform is a social network that allows you to connect with other users and third parties.  All information and content provided by Sparkx Fly relating to the Platform is for informational purposes only, and Sparkx Fly does not guarantee the accuracy, completeness, timeliness or reliability of any such information or content.  You acknowledge that all information and content accessed by you using the Platform is at your own risk. You may use the Platform solely as allowed and provided for by Sparkx Fly. Please be aware that the Platform is offered “as-is” and “as-available.”  We reserve the right to modify, update, remove, delete, or otherwise change the Platform, any portions of it, or any services offered at our discretion.

The Platform may communicate with you electronically via mobile application, text, email, or other format.  Where applicable, you may opt out of communications by following the instructions as stated within communication or accessing your account dashboard.  If you believe any communications sent are inappropriate, please contact us immediately.  Please be aware that standard phone messaging, data messaging, and text message rates apply, please consult your carrier or telecommunications provider for a standard list of rates.

6. User Privacy

We value your privacy and understand your privacy concerns.  Our Privacy Policy is incorporated into this Agreement, and it governs your submission of information to our Platform.  Please review our Privacy Policy so that you may understand our privacy practices.   Please be aware that some or all User Content may be publically accessible or shared with other Users of the Platform.

7. Use of the Platform

When using our Platform, you are responsible for your use of the Platform. You agree to the following:

• You may not copy, distribute, access, or disclose any part of the Platform in any medium, including without limitation by any automated or non-automated “scraping” or unauthorized use of the server API;

• You may not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Platform;

• You may not use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Platform or to extract data;

• You may not use automated bots or other software to send more messages through our Platform than humanly possible;

• You may not use the Platform on a computer that is used to operate nuclear facilities, life support, or other mission critical applications where life or property may be at stake;

• You may not decompile, reverse engineer, disassemble, modify, rent, sell, lease, loan, distribute, or create derivative works or improvements to the Platform or any portion of it;

• You may not access our Platform in an attempt to build a similar or other competitive product;

• You may not use the Platform in an unlawful manner;

• You may not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure; 

• You may not collect or harvest any personally identifiable information, including account names, except where permitted, from the Platform;

• You may not violate or infringe other people’s intellectual property, privacy, or other contractual rights while using our Platform;

• You may not violate any requirements, procedures, policies or regulations of networks connected to Sparkx Fly;

• You may not sell, lease, loan, distribute, transfer, or sublicense the Platform or access to it or derive income from the use or provision of the Platform unless enabled through the functionality of our Platform; 

• You may not interfere with or disrupt the Platform;

• You agree not to use the Platform in any way that is: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.

• You agree that you will not hold Sparkx Fly responsible for your use of our Platform; and

• You agree not to cause, or aid in, the disruption, destruction, manipulation, removal, disabling, or impairment of any portion of our Platform, including the de-indexing or de-caching of any portion of our Platform from a thirty party’s website, such as by requesting its removal from a search engine.

If you are discovered to be undertaking any of the aforementioned actions your privileges to use our Platform may at our discretion be terminated or suspended.  Additionally, if we believe that your actions may harm us or a third party we may suspend or terminate your use of the Platform.  Generally, we will provide an explanation for any suspension or termination of your use of any of our Platform, but Sparkx Fly reserves the right to suspend or terminate any account at any time without notice or explanation. 

8. User Content

Your ability or any other user’s ability to submit or transmit any information through the Platform, including but not limited to any content, data, recordings, information, written content, images, videos, or any other information will be referred to as “User Content” throughout this Agreement. Please be aware that we are not required to host, display, migrate, or distribute any of your User Content and we may refuse to accept or transmit any User Content.   You agree that you are solely responsible for any User Content submitted and you release us from any liability associated with any User Content submitted.  Any User Content found to be in violation of this Agreement or that we determine to be harmful to the Platform may be modified, edited, or removed at our discretion. 

When submitting any User Content to our Platform you represent and warrant that you own all rights to the User Content, you have paid any fees to use or license the User Content, or you otherwise have the permission and right to use any User Content. Furthermore, you represent and warrant that all User Content is legal and the User Content does not interfere with any third party rights or obligations. 

When you submit any User Content to us, you grant Sparkx Fly, its partners, affiliates, Users, representatives and assigns a non-exclusive, limited, fully-paid, royalty-free, revocable, world-wide, universal, transferable, assignable license to display, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works, or use and reuse all or part of your User Content for any and all purposes including but not limited to using the User Content for commercial purposes.  User Content will be shared with third parties and all Users understand that their User Content may be broadcast, transmitted, and shared with the general public at large.  Sparkx Fly has no liability to Users for any User Content including all data, information, copy, images, URL names, and anything else submitted by you or any third parties using the Platform.  Specifically, Sparkx Fly shall not be liable for any errors related to any User Content. We reserve the right to remove, delete, modify, screen, edit, or refuse any User Content for any reason or no reason, and with or without notice to you.

9. User Content Guidelines

Please be aware that all User Content may be viewed by third parties, thus we cannot guarantee the confidentiality of any User Content. When submitting any User Content you agree to the following:

• You agree that User Content submitted is truthful, up-to-date, and accurate;

• You agree not to submit any User Content that contains any confidential information;

• You agree not to submit any User Content that contains nudity, is overtly sexual in nature, or is explicit content; 

• You agree not to submit any User Content that depicts gratuitous violence, animal or child abuse, or encourages violence against others;

• You agree not to submit any User Content that contains: hate speech or promotes or condones violence against individuals or groups based on race or ethnic origin, religion, disability, gender, age, nationality, veteran status, or sexual orientation/gender identity;

• You agree not to submit any User Content that is considered spam or politically controversial; 

• You agree not to submit any User Content that contains: gambling information, excessive use of alcohol or tobacco, illicit drugs, guns or firearms; misinformation; promotes self-harm; or is considering bullying or stalking; and

• You agree not to submit any User Content that may be considered: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.

If you have violated any of our User Content Guidelines or if we believe that any User Content may harm the Platform, your access to the Platform may be suspended or terminated.

10. User Messaging and Comments

Through the Platform User may be able to make posts, send messages or comments.  As Sparkx Fly is a community we expect all messages and comments to be sent in a civil and reasonable manner as if you were having a conversation with another user in person. All messages or comments are considered User Content and subject to the User Content Guidelines.  Please refrain from using the messaging and comments to send unsolicited communications, promotions or advertisements, or spam. As a User you agree not to misrepresent or impersonate another business or user or otherwise mislead users while using the messaging or comment features offered by the Platform.  Further, you agree not to transmit any computer viruses, worms, trojan horses or other malware, or trespass, burden network capacity, or otherwise disable, override or interfere with any portions of the Platform.  We reserve the right but not the obligation to review any messages or comments and you should be aware that any messages or comments may be visible to other users.  We may delete, remove, edit, or modify any messages or comments that violate this Agreement including the User Content Guidelines and may do so at our discretion.  Please be aware that we are not required to provide you an explanation for any deletion, modification or removals.

11. User Content Accessibility

User understands that when submitting any User Content to the Platform, such User Content may be shareable or viewable by third parties or the public. Therefore, User agrees that it shall not share any User Content that is highly sensitive or confidential. Any User Content may be insecure and may be publicly accessible.  User releases Sparkx Fly from any liability related to the exposure or mis-use of any User Content submitted through the Platform. 

12. Monitoring User Content

Sparkx Fly shall have the right, but not the obligation, to monitor all User Content on the Platform at all times, to determine compliance with this Agreement and any guidelines established by us. Without limiting the foregoing, Sparkx Fly shall have the right, but not the obligation, to remove any User Content at its sole discretion. For example, we may remove User Content if we believe that any User Content may harm us or our business interests or violate any United States laws or regulations. We have no obligation to retain or provide you with copies of any User Content after your termination of this Agreement.

13. Platform Availability

Although we try to provide continuous availability to you, we do not guarantee that the Platform along with any offered Sparkx Fly services will always be available, work, or be accessible at any particular time.  Specifically, we do not guarantee any uptime or specific availability of the Platform.  You agree and acknowledge that the Platform uses remote access and may not always be either 100% reliable or available.  Only Users who are eligible to use our Platform may do so and we may refuse service or terminate your access at any time. We cannot guarantee that anything found on our Platform will work to the functionality desired by you or give you any desired results.  

14. Modification of Platform 

We reserve the right to alter, modify, update, or remove the Platform or any Sparkx Fly services, at any time at our discretion.  We reserve the right to discontinue previously offered features or functionality at our sole discretion and without prior notice. We are not liable to you or to any third party for any modification, suspension, or discontinuance of any feature or component of any portion of the Platform or the Sparkx Fly services. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by the Platform without notice to you. We may conduct such modifications to our Platform for security reasons, intellectual property, legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications or provide you access to previous versions of our Platform.  

15. User Account Holds

From time to time, Sparkx Fly may place a hold (“Hold”) on a User’s account. Some of the reasons that we may place a Hold on User’s account include but are not limited to the following: (1) if we have reason that User’s actions have violated this Agreement, may harm our business, are deceptive, misleading, unlawful, or have harmed a third party or interfere with a third party contractual right; (2) at the request of our payment processors or due to delayed payment; or (3) if required in order to comply with a court order, subpoena, writ, injunction, or as otherwise required under applicable laws and regulations. If User has questions about a Hold we may have placed on User’s account, or need information about how to resolve the Hold, please contact us. Additionally, we may suspend User’s access to the Platform while such Hold is in place.

16. Intellectual Property

The name “Sparkx Fly” along with the design of the Sparkx Fly Platform and any text, writings, images, templates, scripts, graphics, interactive features and any trademarks or logos contained therein (“Marks”), are owned by or licensed to Sparkx Fly, subject to copyright and other intellectual property rights under United States,  foreign laws, and international conventions. Sparkx Fly reserves all rights not expressly granted in and to the Marks. You agree to not engage in the use, copying, or distribution anything contained within the Platform unless we have given express written permission.

17. Idea Submission

Sparkx Fly or any of its employees do not accept or consider unsolicited ideas, including but not limited to ideas relating to processes, technologies, product enhancements, or product names. Please do not submit any unsolicited ideas, content, artwork, suggestions, or other works (“Submissions”) in any form to Sparkx Fly. The sole purpose of this policy is to avoid potential misunderstandings or disputes when Sparkx Fly’ products might seem similar to ideas you submitted to Sparkx Fly. Where you submit any Submission, whether solicited or unsolicited, you agree that: (1) your Submissions and their contents will automatically become the property of Sparkx Fly, without any compensation to you; (2) Sparkx Fly may use or redistribute the Submissions and their contents for any purpose and in any way; (3) there is no obligation for Sparkx Fly to review the Submission; and (4) there is no obligation to keep any Submissions confidential.

18. Interactions With Other Users

Through the Platform, User may be able to connect with other users or other third parties.   Please be aware that you are solely responsible for any interactions with any other users of the Platform including any other users.  Sparkx Fly does not endorse, may not verify, and does not warrant any third parties encountered on the Platform and has no affiliation with any user.  THE USER AGREES TO HOLD SPARKX FLY FREE FROM RESPONSIBILITY FOR ANY LIABILITY OR DAMAGE THAT MIGHT ARISE OUT OF YOUR ACCESS TO OR INTERACTIONS WITH ANY OTHER USER INCLUDING ANY OTHER USER’S USER CONTENT OR ANY OTHER THIRD PARTY. SPARKX FLY IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY OTHER USER, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE PLATFORM OR ANY USER CONTENT ENCOUNTERED. Although Sparkx Fly may display User Content provided by another user based on information provided; Sparkx Fly does not introduce, endorse, verify, or recommend any User Content.  Any opinions, advice, or information expressed by any user are those of the individual and the individual alone and they do not reflect the opinions of Sparkx Fly.  Please use caution and common sense when meeting any other user or third party. User shall indemnify and hold harmless Sparkx Fly from any claims related to any interactions with other users or third parties in accordance with this Agreement.

19. Third Party Content

Sparkx Fly does not endorse or warrant any third party content including but not limited to any materials, results, information, or other data provided by another user or a third party website (collectively “Third Party Content”) and does not assume responsibility for any Third Party Content encountered on the Platform.  If you use or access any Third Party Content you do so at your own risk. We recommend that you independently evaluate Third Party Content and you should not solely rely on the Third Party Content displayed on the Platform to make any decisions. If you require more information regarding any Third Party Content, please contact the owner of such Third Party Content.  Further, Sparkx Fly assumes no liability for inaccuracies or misstatements made by such third parties responsible for such Third Party Content.

20. Subscriptions

Any User purchasing a subscription (“Subscription”) shall be referred to as a “Subscriber”. Subscriber agrees to pay for all costs, fees, and taxes listed when purchasing any Subscription to the Platform or for any additional purchases. Subscriber authorizes Sparkx Fly or  its third party payment processors to charge their method of payment on file at the time of purchase. Where applicable, you must agree to our third party payment processors terms and conditions for processing payments.  All prices are listed in US Dollars.  All information that you provide in connection with a purchase or transaction must be accurate, complete, and current.   Where you have failed to pay or where payments are overdue, Sparkx Fly may suspend or terminate your access to the paid portions of the Platform, without liability to us.

21. Lifetime Subscriptions

A lifetime subscription may be purchased by a Subscriber, lifetime subscriptions shall be valid from the date of purchase.  The lifetime subscription does not guarantee access to the Platform for any durational period, Sparkx Fly may discontinue offering the Platform at its discretion and shall have no liability to any lifetime Subscriber.  Further, Sparkx Fly reserves the right to require additional payment from lifetime Subscribers for any additional or enhanced feature or service offerings.

22. Free Trials

Sparkx Fly may offer the Platform on a free trial basis.  Sparkx Fly reserves the right to discontinue or modify any free trials at any time and without liability.  Where Subscriber has signed up for a free trial, Subscriber agrees that at the expiration of Subscriber’s free trial Subscriber may be automatically charged for any additional usage of the Platform in accordance with Sparkx Fly’s then current pricing.

23. Refunds

We want you to be satisfied with your Subscription to the Platform but we cannot offer any refunds at this time.  If you feel that you are entitled to a refund, please contact us.

24. Taxes

Where Sparkx Fly does not charge you taxes for any Subscriptions, you agree to pay any and all applicable taxes.  

25. Subscription Plans and Renewals

In order to access certain functionality within the Platform, you may be required to purchase a Subscription.  Please be aware that multiple Subscriptions may be required where applicable.  Where you purchase a Subscription, your payment information shall be logged for your convenience. IF YOUR ACCOUNT HAS BEEN SET UP FOR AUTOMATIC PAYMENTS, SPARKX FLY MAY CHARGE YOU AUTOMATICALLY AND ON A RECURRING BASIS, UNLESS YOU NOTIFY US THAT YOU WANT TO CANCEL YOUR AUTOMATIC PAYMENT VIA YOUR ACCOUNT DASHBOARD . ADDITIONALLY, YOU AUTHORIZE US TO BILL YOU ON A RECURRING BASIS AND AGREE THAT YOUR SELECTED SUBSCRIPTION SHALL AUTOMATICALLY RENEW FOR ADDITIONAL PERIODS (OF THE SAME LENGTH AS YOUR INITIAL SUBSCRIPTION) UNTIL WE ARE NOTIFIED OTHERWISE. YOU AGREE THAT NO ADDITIONAL CONSENT IS REQUIRED BY YOU TO CHARGE YOUR PREFERRED PAYMENT METHOD AUTOMATICALLY AND ON AN AUTOMATICALLY RENEWABLE BASIS FOR THE SUBSCRIPTION SELECTED.  Please be aware that you are able to cancel your Subscription prior to purchase or at any time by canceling via your Platform account dashboard or by contacting us via the Platform.

26. Pricing and Price Increases

The pricing for all paid Subscriptions is listed on the Sparkx Fly Platform or within your account.   Sparkx Fly may increase the price of any paid Subscriptions, at our discretion and we reserve the right to do so at any time. In the event of a price increase, Sparkx Fly shall notify you and you will have the chance to accept or reject any price increase before the paid Subscription renewal.   Generally, we may  notify you of any price increases.   Upon receipt of such notice, please notify us if you intend to reject a price increase.  Where you have rejected a price increase, upon the expiration of your paid Subscription, portions of the Platform may become immediately unavailable. You agree that Sparkx Fly has no obligation to offer any Subscriptions for the price originally offered to you at sign up.

27. Subscription Cancellation

You may cancel your Subscription by accessing your subscription information within your account located on the Platform or by contacting us at [email protected].  Please be aware that your Subscription shall continue for the applicable Subscription period and after the lapse of such period all your account and your User Content may become inaccessible or may be deleted. 

28. Disclaimer

THE PLATFORM IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER SPARKX FLY, NOR ANY OF OUR EMPLOYEES, DIRECTORS, OFFICERS, ASSIGNS, AFFILIATES, OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: (1) THE PLATFORM OR ANY SPARKX FLY SERVICES; (2) ANY INFORMATION OR CONTENT PROVIDED VIA THE PLATFORM; OR (3) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO SPARKX FLY, OR VIA THE PLATFORM. IN ADDITION, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS. SPARKX FLY DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PLATFORM OR THE SERVER THAT MAKES THE PLATFORM AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS. SPARKX FLY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY USER CONTENT) ON THE PLATFORM IS ACCURATE, COMPLETE, OR USEFUL. SPARKX FLY DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND SPARKX FLY SPECIFICALLY DISCLAIMS ANY SUCH WARRANTIES. 

29. Limitation of Liability

IN NO EVENT SHALL SPARKX FLY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE SPARKX FLY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. SPECIFICALLY, IN THOSE JURISDICTIONS NOT ALLOWED, WE DO NOT DISCLAIM LIABILITY FOR: (1) DEATH OR PERSONAL INJURY CAUSED BY SPARKX FLY’S NEGLIGENCE OR THAT OF ANY OF ITS OFFICERS, EMPLOYEES OR AGENTS; (2) FRAUDULENT MISREPRESENTATION; OR (3) ANY LIABILITY WHICH IT IS NOT LAWFUL TO EXCLUDE EITHER NOW OR IN THE FUTURE.  WHERE A TOTAL DISCLAIMER OF LIABILITY IS DISALLOWED YOU AGREE THAT OUR TOTAL LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNTS YOU HAVE PAID TO USE THE PLATFORM DURING THE PAST SIX (6) OR ONE HUNDRED USD, WHICHEVER IS LESSER.

30. Indemnity

You agree to defend, indemnify and hold harmless Sparkx Fly, its officers, directors, employees, affiliates, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: 

• your use of and access to the Sparkx Fly Platform and your interaction with any other users of the Platform;

• your violation of any term of this Agreement; or

• your violation of any third party right, including without limitation any copyright, property, or contractual right.

This defense and indemnification obligation will survive this Agreement and your use of the Sparkx Fly Platform. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases.  You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements.  In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.

31. Copyrights

We take copyright infringement very seriously.  If you believe that any content owned by you has been infringed upon please send us a message which contains:

• Your name.

• The name of the party whose copyright has been infringed, if different from your name.

• The name and description of the work that is being infringed.

• The location on our Platform of the infringing copy.

• A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.

• A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.

You must sign this notification and send it to our Copyright Agent: Copyright Agent of Sparkx Fly, [email protected] or 1811 Englewood Rd., Englewood, FL 34223.

Counter Notice

In the event that you receive a notification from Sparkx Fly stating content posted by you has been subject to a copyright takedown notice, you may respond by filing a counter-notice pursuant to the DMCA.  Your counter-notice must contain the following:

• Your name, address, email and physical or electronic signature.

• The notification reference number (if applicable).

• Identification of the material and its location before it was removed.

• A statement under penalty of perjury that the material was removed by mistake or misidentification.

• Your consent to the jurisdiction of a federal court in the district where you live (if you are in the U.S.), or your consent to the jurisdiction of a federal court in the district where your Vendor is located (if you are not in the US).

• Your consent to accept service of process from the party who submitted the takedown notice.

Please be aware that we may not take any action regarding your counter-notice unless your notification strictly complies with the foregoing requirements.    Please send this counter-notice in accordance with the takedown notice instructions above.

32. Choice of Law

This Agreement shall be governed by the laws in force in the state of Florida. The offer and acceptance of this contract is deemed to have occurred in the state of Florida.

33. Disputes

Any dispute relating in any way to your visit to the Platform or the Sparkx Fly services shall be submitted to confidential arbitration in Englewood, FL. Arbitration under this Agreement shall be conducted pursuant to the applicable Consumer Rules (“Rules”) then prevailing at the American Arbitration Association found at adr.org. Arbitration shall be conducted in English by one (1) arbitrator as selected pursuant to the Rules; the arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.  Each party shall be responsible for their own arbitration fees and costs. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. Where permitted by the Rules, both parties may make any and all appearances telephonically, in written briefs, or electronically. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Platform or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned.   Notwithstanding the foregoing, either party may seek equitable relief to protect its interests (including but not limited to injunctive relief) in a court of competent jurisdiction, and issues of intellectual property ownership or infringement may be decided only by a court of appropriate jurisdiction and not by arbitration. In the event that the law does not permit the abovementioned dispute to be resolved through arbitration or if this arbitration agreement is unenforceable, you agree that any actions and disputes shall be brought solely in a court of competent jurisdiction located within Sarasota County, FL.

Opt-Out

You may opt-out of this dispute resolution provision by notifying Sparkx Fly within 30 days of the date on which you entered into this Agreement or purchased a subscription, whichever is earlier. You must do so by writing to 1811 Englewood Rd., Englewood, FL 34223, attn: Arbitration Opt-Out, and you must include your name, address, account information, and a clear statement that you do not wish to resolve disputes with Sparkx Fly through arbitration.  Where you opt out of arbitration, all disputes shall be heard in a court of competent jurisdiction located within Sarasota County, FL.

34. Class Action and PAGA Waiver

You and Sparkx Fly agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis. You agree that you will not seek to have any dispute heard as a Client action, representative action, collective action, or private attorney general action.  

35. Severability

In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.

If two or more provisions of this Agreement or any other agreement you may have with Sparkx Fly are deemed to conflict with each other’s operation, Sparkx Fly shall have the sole right to elect which provision remains in force.  

36. Non-Waiver

We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law.  Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.

37. Assignment and Survival

You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent.  We may assign our rights and/or obligations under this Agreement to any other party at our discretion.  All portions of this Agreement that would reasonably be believed to survive termination shall survive and remain in full force upon termination, including but not limited to the Limitation of Liabilities, Representation and Warranties, Access, PAGA and Class Action Waivers, Indemnification, and Arbitration sections.

38. Termination

You may cancel your access to the Platform or terminate this Agreement any time via your Sparkx Fly dashboard or contacting us at [email protected]. Please be aware that upon termination of your account or subscription, access to all or portions of our Platform may become immediately disabled and any User Content may become immediately inaccessible.  We may terminate this Agreement with you if we determine that: (1) you have violated any applicable laws while using our Platform; (2) if you have violated any portion of this Agreement or any of our Platform policies; or (3) if we believe that any of your current or future actions may legally harm Sparkx Fly, our business interests or a third party, at our discretion.  In the event of termination, we will strive to provide you with a timely explanation; however, we are not required to do so.  

39. Entire Agreement and Notices

This Agreement along with the Privacy Policy provided by Sparkx Fly constitute the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersede all prior or contemporaneous agreements or understandings written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by a duly authorized representative of each party.  Where this Agreement conflicts with our Privacy Policy or any other documentation listed on our website this Agreement shall supersede and control (unless explicitly stated otherwise).  Any notices required under this Agreement shall be delivered to 1811 Englewood Rd., Englewood, FL 34223, United States of America, delivery confirmation required.  Any notices to User shall be delivered either electronically via message to your User account or to the email address listed within your User account.

40. Amendments

We may amend this Agreement from time to time.  When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may email you.  You may refuse to agree to the amendments, but if you do, you must immediately cease using our Platform and our Platform. 

41. Electronic Communications

The communications between you and Sparkx Fly use electronic means, whether you visit the Platform or send Sparkx Fly e-mails, or whether Sparkx Fly posts notices on the Platform or communications with you via mobile notifications or e-mail.  For contractual purposes, you (1) consent to receive communications from Sparkx Fly in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Sparkx Fly provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.

42. Third Party App Store

The following terms apply when you use our mobile application obtained from either the Apple App Store or Google Play (each a “Third Party App Store”) to access the Platform: (1) the license granted to you for our mobile application is limited to a non-transferable license to use the application on a device that utilizes the Apple iOS or Android operating systems, as applicable, and in accordance with the usage rules set forth in the applicable Third Party App Store’s terms of service; (2) we are responsible for providing any maintenance and support services with respect to the mobile application as specified in the terms and conditions of this mobile application license contained in this Agreement or as otherwise required under applicable law, and you acknowledge that each Third Party App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the mobile application; (3) in the event of any failure of the mobile application to conform to any applicable warranty, you may notify the applicable Third Party App Store, and the Third Party App Store, in accordance with its terms and policies, may refund the purchase price, if any, paid for the mobile application, and to the maximum extent permitted by applicable law, the Third Party App Store will have no other warranty obligation whatsoever with respect to the mobile application; (4) you represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) you are not listed on any U.S. government list of prohibited or restricted parties; (5) you must comply with applicable third-party terms of agreement when using the mobile application, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the mobile application; and (6) you acknowledge and agree that the Third Party App Stores are third-party beneficiaries of the terms and conditions in this mobile application license contained in this Agreement, and that each Third Party App Store will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this mobile application license contained in this Agreement Use against you as a third-party beneficiary thereof. 

43. Platform Issues 

Where you have any questions, issues, or if you are having trouble accessing or using the Platform, please contact us at [email protected] 

44. California Users

Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Sparkx Fly must be sent to our agent for notice to: [email protected] or 1811 Englewood Rd., Englewood, FL 34223.

California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.