Sparkler's Terms of Service
Revision: May 30, 2018
The following are the terms of service (“Terms of Service”) that define the relationship between Sparkler Learning, Inc. (doing business as Sparkler (“Company,” “we,” or “us”)) and you, and govern your use of Sparkler’s services.
We’ve done our best to write this policy in simple, clear terms.
Agreeing to our Terms
Thank you for your interest in Sparkler, which owns and operates the services offered on the Sparkler mobile application (“Sparkler Apps”) and any other electronic or physical products and services that Company may provide now or in the future (collectively, the “Service”).
Using the Service
Permission to use Sparkler As long as you are complying with all of the terms and conditions of this Agreement, Sparkler gives you permission to access and use the Service available to you through the applicable registration process. The Service is available for your personal, noncommercial use.
We are constantly changing and improving our Services. We may add or remove functionalities or features, and we may suspend or stop a Service altogether, including, for example, if you do not comply with this Agreement or if we are investigating suspected misconduct. You can stop using our Service at any time, although we’ll be sorry to see you go. We may also stop providing the Service to you, or add or create new limits to our Service or restrict your access to all or a part of the Service at any time without notice or liability. Access to and use of the Service is free to parents and caregivers working with their children, but in the future, we may offer new or additional special features which Sparkler may charge for. Please also be aware that while we currently provide our mobile services for free, your carrier’s normal rates and fees still apply, such as text messaging and data fees.
We believe that you own your data and preserving your access to such data is important. If we discontinue a Service, where reasonably possible, we will give you reasonable advance notice and a chance to get information out of that Service. Please see our FAQ for more information. The right to access and use the Service is revoked in jurisdictions where it may be prohibited, if any.
Restrictions Except as expressly permitted under this Agreement, you agree that your permission to use the Service is conditioned upon you following all the restrictions set forth in the “Sparkler Technology” and “Acceptable Use and Conduct” sections.
Your Information and Content
You retain all ownership rights you have in any User Submissions. Sparkler does not claim any ownership rights in the User Submissions. Please note that, while you retain ownership of your User Submissions, any template or layout in which you arrange or organize such User Submissions through tools and features made available through any of our Service are not proprietary to you — rights to such templates or layouts will remain with us.
The license in (i) above will terminate when you delete any User Submissions with intellectual property rights (like photos or videos) (“IP content”)), you or your Institution (as defined below) deletes an Education Record, you delete any personal information, or you delete your account, unless your content has been shared with others, and they have not deleted it. When you create shared accounts for particular student profiles, your user submissions can be viewed by those other accounts that you have linked to yours, and that means that you are allowing others to access and use that information and to associate it with you (i.e. your name and profile picture if you provide one). When you delete IP content, Education Records, or personal information, it is deleted in a manner similar to emptying the recycle or trash bin on a computer. However, you understand that any removed User Submission may persist in backup copies for a reasonable period of time (but will not be available to others).
Your Responsibilities and Sparkler Rights You are responsible for making sure that you have all rights in the User Submissions, including the rights necessary for you to grant us the foregoing licenses to the User Submissions. You are responsible for ensuring your User Submission complies with the “Acceptable Use and Conduct” Section and for any other guidelines or conditions specific to a particular category of user (e.g., teacher, parent, caregiver, or student). When you include User Submissions, you may be able to create links to external websites. If you elect to create links to external websites, you must verify the quality and substance of each external link. You are solely responsible for any links you create to external websites. Sparkler is not liable or responsible for any links created by you, or for any damages, direct or indirect, arising therefrom.
All information posted or transmitted through the Service is the responsibility of the person that posted it, and we will not be liable for any errors or omissions in any content. Sparkler cannot guarantee the identity of any other account holders with whom you may share your account, or the authenticity of any data which users may provide about themselves. You acknowledge that all content accessed by you using the Service is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. You acknowledge that Sparkler and its designees (such as coaches and service administrators) reserve the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display, or transmit any User Submission through or on the Service in whole or in part at any time for any reason or no reason with or without notice and without liability of any kind. Additionally, we do not guarantee that we will publish any of your User Submissions, and reserve the right to remove User Submissions from the Service at any time for any reason, such as if we receive a notice reports a User Submission infringes someone’s intellectual property rights.
Privacy and Security
Additional Terms for Partner Personnel
If you are a teacher, program leader, doctor, support staff, or other similar professional or staff personnel supporting families and students (“Partner Personnel”) accessing the Service on behalf of an educational, health care, or social services Sponsoring Partner (the "Partner"), the following additional terms apply to you:
Permissions and Authority: You agree that you are acting on behalf of (or have permission from) your Partner to enter into this Agreement and to use the Service as part of your program. Only Partner Personnel who are current employees of the Partner may use the Service on the Partner’s behalf. The Partner Personnel is responsible for obtaining any necessary approvals from their school's authorities and administrators before using the Service. Upon termination of a Partner Personnel or other staff member's employment with the Partner, such individual must return and cease using all login details and student access he or she has in his or her possession. If at any time you learn a user of the Service claims to be affiliated with your Partner who is not, in fact, affiliated with your Partner, you will notify sparkler immediately at firstname.lastname@example.org.
User Data Protection
Sparkler understands that it is important for us and for our partner organizations to comply with the Family Education Rights and Privacy Act ("FERPA"), Health Insurance Portability and Accountability Act (“HIPPA”) and related regulations. Certain information that may be provided to Sparkler by Program Personnel that is directly related to a student and maintained by an Institution, may be considered an education record (“Education Record”) under FERPA or Personally Identifiable Information (PII) under HIPPA. Additionally, certain information, provided to Company by Program Personnel about a student, such as student name and grade level, may be considered directory information under FERPA (“Directory Information”) and thus not an Education Record. A school may not generally disclose personally identifiable information (“PII”) from an eligible student’s education records to a third-party without written consent of the parent and/or eligible student or without meeting one of the exemptions set forth in FERPA (“FERPA Exemption(s)”), including the exemption for Directory Information (“Directory Information Exemption”) or disclosure to school officials with a legitimate educational interest (“School Official Exemption”).
As Partner Personnel or a Partner providing Directory Information or any Education Record to Sparkler, you represent, warrant and covenant to Sparkler, as applicable, that your Institution has:
i. Complied with the Directory Information Exemption, including, without limitation, informing parents and eligible students what information the Institution deems to be directory information and may be disclosed and allowing parents and eligible students a reasonable amount of time to request that schools not disclose directory information about them; and/or
ii. Complied with the relevant exemptions, including, without limitation, informing parents in their annual notification of FERPA and HIPPA rights that the Institution defines “school official” to include service providers and defines “legitimate educational interest” to include services such as the type provided by Sparkler; or
iii. Obtained all necessary parental or eligible student written consent to share the PII, Directory Information, and Educational Records with Company, in each case, solely to enable Company’s operation of the Service.
It is important that Program Personnel not provide information to Sparkler from any student or parent that has opted out of the disclosure of PII or Directory Information. Sparkler depends on our partners to ensure that their actions comply with the FERPA and HIPPA provisions regarding the disclosure of PII, Directory Information, and the relevant exemptions for any student information that will be shared with Sparkler, just as Sparkler works to ensure that its actions comply. Sparkler is not in a position to provide legal advice regarding whether the school's existing FERPA or HIPPA disclosures are sufficient. To the extent that Program Personnel have questions regarding these issues, they should consult the school's own legal counsel for more information.
Sparkler may use Directory Information and Education and Medical Records that have been de-identified for product development, research or other purposes (“De-Identified Data”). De-Identified Data will have all direct and indirect personal identifiers removed, this includes, but is not limited to, name, date of birth, demographic information, location information and school identity. Sparkler agrees not to attempt to re-identify the De-Identified Data and not to transfer the De-Identified Data to a third-party unless that party agrees not to attempt re-identification.
The Service and the Sparkler Technology are intended solely for the personal, non-commercial use of our users and may only be used in accordance with this Agreement. “Sparkler Technology” means all past, present and future content of the Service, including, all the software, hardware and technology used to provide the Service (including Sparkler proprietary code and third-party software), user interfaces, materials displayed or performed on the Service, such as text, graphics, articles, photographs, images, illustrations and the design, structure, sequence and “look and feel” of the Services, and all other intellectual property, including all Sparkler Marks. “Sparkler Marks” means the trademarks, service marks, logos, or any other trade name, trademarks, service marks and other distinctive or proprietary brand features of Sparkler.
Sparkler Technology is protected by copyright and other intellectual property laws. Using our Service does not give you ownership of any intellectual property rights in our Service or the Sparkler Technology. You agree that, as between you and Sparkler, all the intellectual property rights in the Sparkler Service and Sparkler Technology, which does not include User Submissions (as defined below), are owned by Sparkler or its licensors. These terms do not grant you the right to use any Sparkler Marks.
You are not allowed to use, store, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, create derivative works from, display, license, sell or otherwise exploit the Sparkler Technology for any purposes other than as expressly permitted under this Agreement. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of any Sparkler Technology. You will not access the Service to build a product using similar ideas, features, functions, interface or graphics of the Service.
You may not use content from our Services, including User Submissions, unless you obtain permission from its owner or are otherwise permitted by law. Don’t remove, obscure, or alter any copyright or other legal notices displayed in or along with our Services.
You may download a single copy of the Sparkler App for personal, non-commercial use only.
Company may, now or in the future, incorporate certain functions that allow you to interact with the Service through your accounts on certain supported third-party social networks or network storage sites, such as with “Like” and “Share” buttons, features allowing you to register on Sparkler through social networks or otherwise grant access to a third-party social networking service, such as through Facebook Connect or Google, or other similar features (collectively “Linked Accounts”). If you choose to use such features, you grant Company permission to access and use your Linked Account for the purpose of processing your requests. Your use of Linked Accounts is subject to the applicable third-party terms.
Third-party Applications and Integrations
If you use any third-party applications, such as YouTube video, including, but not limited to, third-party applications that are integrated directly with our Service through application programming interfaces ("APIs") for your convenience, ("Third-Party Applications"), you are solely responsible for your interactions with such Third-Party Applications. Additionally, if you elect to use any Third-Party Applications, you are solely responsible for the selection of and any transfer or downloading of any User Submissions, or any other data or content stored on the Sparkler Service, to such Third-Party Applications, including through any Sparkler API’s. Sparkler shall not be responsible for any disclosure, modification or deletion of your data, or the use of your data by such Third-Party Applications, including, without limitation, any User Submissions, resulting from any such access by Third-Party Applications.
If you use any Third-Party Applications, including without limitation, to create and link or integrate any videos or other content ("Third-Party Application Created Content") to your account on Sparkler, it is your responsibility to obtain any and all necessary rights you need, including, without limitation, for any additional photos / videos / music not already part of Sparkler as necessary to grant us the license set forth in “Your Information and Content” Section. You are also solely responsible for all Third-Party Application Created Content, and for ensuring that such Third-Party Application Created Content meets all applicable conditions and restrictions set forth in this Agreement, including, but not limited to, those in “Your Information and Content” Section and the Community Guidelines. You further acknowledge that any Third-Party Application Created Content is subject to any other disclaimers and rights of Sparkler with respect to such content contained in this Agreement, including, but not limited to the Your Information and Content Section. You represent and warrant, in connection with any use of Third-Party Applications, that you: (i) shall comply at all times with all applicable Third-Party Application Terms, including regarding the indirect or direct transfer of any User Submissions or other data to any third parties; (ii) shall comply with any and all process and guidelines set forth (or that may be set forth) by Sparkler regarding Third-Party Applications; and (iii) will comply with the Community Guidelines for all content you link to or integrate with the Service through the use of any Third-Party Applications.
Modification to Agreement
We may modify this Agreement or Guidelines to, for example, reflect changes to the law or changes to our Services. You should look at the Agreement regularly. We’ll post notice of material modifications to this Agreement on this page. Changes will not apply retroactively and will only become effective when (a) you use the Service after you know about the change, or (b) thirty days after they are posted (whichever is sooner). However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. Your continued use of the Services, following notice of the changes to the Agreement or Guidelines, constitutes your acceptance of our amended terms, policies or guidelines. If you do not agree to the modified Agreement, you should discontinue your use of the Service.
Your Representations and Warranty
You warrant, represent and agree that you will not provide any User Submissions or otherwise use the Service in a manner that (i) infringes, violates or misappropriates another’s intellectual property rights, rights of publicity or privacy, or other rights; (ii) violates any international, federal, state or local law, statute, ordinance or regulation or which would render Company in violation of any applicable laws or regulations, including without limitation HIPPA and FERPA (the “Laws”); (iii) is harmful, fraudulent, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (iv) jeopardizes the security of your account in any way, such as allowing someone else access to your account or password. Additionally, you represent, warrant and agree that you (i) possess all rights necessary to provide your User Submissions and grant Company the rights in this Agreement and (ii) you will comply with the Laws in connection with your use of the Service.
Acceptable Use and Conduct
We do our best to keep Sparkler safe, but we cannot guarantee it. We need your help to keep Sparkler safe, which includes the following commitments by you when using our Service:
1. You will only use the Service as permitted by law, including applicable export or re-export control laws and regulations.
2. You will not post unauthorized commercial communications (such as spam or advertisements) on or through the Service.
3. You will not collect users' content or information, or otherwise access the Service, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our prior permission.
4. You will not engage in unlawful multi-level marketing, such as a pyramid scheme, on the Service.
5. You will not upload viruses or other malicious code, files or programs.
6. You will not collect, solicit or otherwise obtain login information or access an account belonging to someone else.
7. You will not collect, use or disclose data, including personal information, about other users without their consent or for unlawful purposes or in violation of applicable law or regulations.
8. You will not bully, intimidate, or harass any user or use the Service in any manner that is threatening, abusive, violent, or harmful to any person or entity, or invasive of another’s privacy.
9. You will not post or approve any User Submission or use the Service in a manner that infringes, violates or misappropriates any third-party’s intellectual property rights or other proprietary rights, privacy rights or contractual rights.
10. You will not post or approve content that: is hate speech, discriminating, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.
11. You will not use the Service to do anything unlawful, deceptive, misleading, illegal, unethical, malicious, or discriminatory.
12. You will not do anything that could disable, overburden, or impair the proper working or appearance of the Service or prevent other users from using the Service, such as a denial of service attack or interference with page rendering or other Service functionality.
13. You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Service, including any users' content or information, or otherwise access the Service, - except for Internet search engines (e.g., Google) and non-commercial public archives (e.g. archive.org) that comply with our robots.txt file, or "well-behaved" web services/RSS/Atom clients. We reserve the right to define what we mean by "well-behaved."
14. You will not employ misleading names, email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin on any account or content transmitted to or through the Service.
15. You will not use the Service in any commercially unreasonable manner or in any manner that would disparage Sparkler.
16. You will not impersonate a Sparkler employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity.
17. You will not use the Service in any manner that is harmful to minors. Without limiting the foregoing, you will not transmit or post any content anywhere on the Service, including any User Submission, that violate child pornography laws or that otherwise violates any child sexual exploitation laws. Sparkler absolutely does not tolerate this and will report any suspected instances of child pornography or child endangerment, including reporting any of your user registration information, to law enforcement, including the National Center for Missing and Exploited Children.
18. You will not copy, modify, or distribute any text, graphics, or other material or content available through the Service without our prior written permission, or if such content is a User Submission, the prior written consent of such user.
19. You will not facilitate or encourage any violations of this Agreement or our policies, including, without, limitation, to facilitate the unlawful distribution of copyrighted content.
Any violation of the above may be grounds for termination of your right to access or use the Service.
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
We provide our Service using a commercially reasonable level of skill and care and we hope that you will enjoy using them. But there are certain things that we don’t promise about our Services.
DISCLAIMER OF WARRANTIES. THE SERVICE (AND ANY ASSOCIATED CONTENT, THIRD-PARTY CONTENT, THIRD-PARTY WEBSITES, THIRD-PARTY APPLICATIONS, USER SUBMISSIONS, SPARKLER TECHNOLOGY OR SOFTWARE) ARE PROVIDED ON AN “AS IS” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SPARKLER TECHNOLOGY, SERVICES, THIRD-PARTY CONTENT, THIRD-PARTY WEBSITES, THIRD-PARTY APPLICATIONS, USER SUBMISSIONS, AND CONTENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF QUALITY, ACCURACY, PERFORMANCE, AVAILABILITY, MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SPARKLER MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES, THIRD-PARTY CONTENT, THIRD-PARTY WEBSITES, THIRD-PARTY APPLICATIONS OR USER SUBMISSIONS WILL MEET YOUR REQUIREMENTS, BE TO YOUR LIKING, BE ERROR FREE OR UNINTERRUPTED, THAT ALL ERRORS WILL BE CORRECTED OR THAT THE SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. SOME FEATURES ARE EXPERIMENTAL AND HAVE NOT BEEN TESTED IN ANY MANNER.
ANY MATERIAL DOWNLOADED FROM THE APPLICATION OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT THE USER'S OWN DISCRETION AND RISK, AND THE USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THEIR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM ACCESSING OR DOWNLOADING ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE USER FROM SPARKLER SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS OF USE.
LIMITATION OF LIABILITY. UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL SPARKLER OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, LICENSORS, SUPPLIERS, PARTNERS OR AGENTS (“COMPANY PARTIES”), BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST OF COVER, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF SPARKLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO (i) THIS AGREEMENT; (ii) YOUR USE OR THE INABILITY TO USE THE SERVICES, CONTENT, THIRD-PARTY CONTENT, THIRD-PARTY WEBSITES, THIRD-PARTY APPLICATIONS, OR USER SUBMISSIONS; OR (iii) ANY INTERACTION WITH ANY THIRD-PARTY THROUGH OR IN CONNECTION WITH THE SERVICE, INCLUDING OTHER USERS.
IN NO EVENT WILL SPARKLER OR THE COMPANY PARTIES BE LIABLE TO YOU IN THE AGGREGATE (FOR ALL POTENTIAL CLAIMS BY YOU) FOR ANY DAMAGES INCURRED IN EXCESS OF THE GREATER OF ANY FEES YOU HAVE ACTUALLY PAID TO COMPANY FOR USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENTS GIVING RISE TO THE CLAIM, OR ONE HUNDRED DOLLARS ($100).
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Registration and Security
As a condition to using Service, you may be required to register with Company and select a password and username or provide additional contact information ("Company User ID"). You must provide Company with accurate, complete, and updated Company User ID information. You may not select or use as a Company User ID a name of another person with the intent to impersonate that person. You will not provide any false information or create an account for anyone other than yourself without permission. You represent, warrant and covenant all registration information you submit is truthful and accurate. Company reserves the right to refuse registration of or cancel a Company User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password or QR Code and will not share with anyone or let anyone else access your account. You may not transfer your account to anyone without express prior written consent of Company. Company will not be liable for any direct or indirect loss that you may incur as a result of someone else using your Company User ID, password or QR code, either with or without your knowledge or for a failure to comply with this Section. However, you may be held liable for losses incurred by Sparkler or another party due to someone else using your Company User ID, password, or QR code.
You expressly agree to (a) immediately notify Sparkler of any unauthorized use of your account or any other breach of security of your account or a child's personal information, and (b) ensure that you properly logout from your account at the end of each session.
You will indemnify, defend, and hold Company, its parents, partners, subsidiaries, affiliates, contractors, service providers, officers, and employees harmless from and against all damages, losses, demands, liabilities, settlements, costs and expenses of any kind (including reasonable attorneys' fees) from any claim or demand made by any third-party relating to or arising out of (i) your access to, use, or misuse of the Service, (ii) your violation of this Agreement (including any failure to obtain or provide any necessary consent and/or violation of applicable laws or regulations), (iii) the infringement by you or any third-party using your account of any intellectual property or other right of any person or entity, including in connection with your User Submissions, or (iv) your breach or alleged breach of any interaction, agreement, or policy between you and any other user.
Sparkler reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Sparkler. Sparkler will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
It is Sparkler’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA“). Sparkler may remove any allegedly infringing content without any liability to you. Sparkler will promptly terminate without notice any User’s access to the Service where the User is a “repeat infringer” of copyrights. Sparkler, however, reserves the right to identify and terminate Users under any circumstances it deems appropriate, including after only a single instance of allegedly infringing behavior by that User.
Third Parties and User Interactions
User Disputes . Sparkler is not responsible for the actions, content, information or data of other third parties, including other users. You are solely responsible for your interactions with other users of the Services, and any other parties with whom you interact through the Service. We reserves the right, but have no obligation, to become involved in any way with these disputes.
Release . If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including damages for loss of profits, goodwill, use , privacy or data. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor." And, if you are not a California resident, you waive any applicable state statutes of a similar effect.
Term and Termination
a. Generally: In the interest of resolving disputes between you and Company in the most expedient and cost effective manner, you and Company agree that any and all disputes arising in connection with these Terms of Service shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms of Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms of Service. You understand and agree that, by entering into these Terms of Service, you and Company are each waiving the right to a trial by jury or to participate in a class action.
b. Exceptions: Notwithstanding subsection (a), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
c. Arbitration: Any arbitration between you and Company will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms of Service, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Company.
d. Notice; Process: A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Company's address for Notice is: Sparkler Learning, 157 Columbus Avenue, NY 10023 United States of America. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but If we do not reach an agreement to do so within 30 days after the Notice is received, you or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Company shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Company shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Company in settlement of the dispute prior to the arbitrator’s award.
e. Fees: In the event that you commence arbitration in accordance with these Terms of Service, Company will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in New York, NY, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Company for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
f. No Class Actions: you and company agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
g. Enforceability: if only Subsection F of this Section or the entirety of this Section is found to be unenforceable, then the entirety of this Section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described elsewhere in this Section shall govern any action arising out of or related to these Terms of Service.
The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company's reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Company's prior written consent. Company may transfer, assign or delegate this Agreement and its rights and obligations without restriction. This Agreement is governed by and construed in accordance with the laws of the State of New York without regard to the conflict of laws provisions thereof. To the extent any dispute arising from or relating to the subject matter of this Agreement is permitted to be brought in a court of law, such claim shall be subject to the exclusive jurisdiction of the state and federal courts located in New York, NY, and for all purposes of this Agreement, you and Company consent to the exclusive jurisdiction and venue of such courts. Unless and solely to the extent that you or your Institution have a separate written agreement with Company that governs your use of the Service (in which case such agreement will control), we both agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that the Agreement may not be modified, except as otherwise provided herein. This Agreement and any subsequent versions of this Agreement posted to the Website will be deemed a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Company in any respect whatsoever.
For information about how to contact Company, please visit our website www.playsparkler.org.