TERMS OF SERVICE
THE SECTIONS BELOW TITLED “CLASS ACTION WAIVER” AND “BINDING ARBITRATION” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. DESCRIPTION OF SERVICES
Sparemin is a conversation platform for the social web, which allows “Callers” and “Influencers” to connect through short, recorded VoIP calls (each, a “Call”). We provide Visitors and Registered Users with access to the Platform as described in this Agreement.
Visitors. Visitors, as the name implies, are people who visit the Platform, but do not sign in as Registered Users. They can view all publicly-accessible content.
Registered Users. Registered Users are people who register to access and use certain additional features on the Platform and to use certain restricted sections of the Platform. Login is required for all Registered Users. Registered Users may either be “Callers” or “Influencers.” “Callers” are Registered Users who request and participate in Calls with selected Influencers, and “Influencers” are Registered Users who accept and participate in Calls with Callers. Influencers may also record and share the recordings of Calls, both inside and outside of the Platform. Accordingly, Influencers may access certain additional features and functions of the Platform, and may have certain additional rights and obligations with respect to their use of the Platform.
We are under no obligation to accept any individual as a Registered User, and may accept or reject any Registered User in our sole and complete discretion.
2. WAIVER AND RELEASE
You acknowledge that the Platform provides only the technical functionality through which Callers and Influencers may connect, and that all Calls are solely between Callers and Influencers. Sparemin has no control over or involvement in the content of or the advice given on any Call. We are not a party to any interaction between Callers and Influencers, and, accordingly, we shall have no liability to any party in connection with any Call or the content thereof.
WHEN YOU ARE A CALLER, YOU ALSO ACKNOWLEDGE THAT ALTHOUGH THE PLATFORM CAN BE USED TO OBTAIN INFORMATION TO MAKE INFORMED DECISIONS, THE PLATFORM, THE CONTENT, AND THE CALLS ARE NOT MEANT TO BE SUBSTITUTES FOR THE EXERCISE OF YOUR OWN JUDGMENT OR FOR LEGAL, BUSINESS, OR MEDICAL ADVICE FROM QUALIFIED PROFESSIONALS FAMILIAR WITH YOUR UNIQUE CIRCUMSTANCES. NEITHER SPAREMIN NOR THE INFLUENCERS ON THE PLATFORM ARE ENGAGED IN RENDERING LEGAL, BUSINESS, OR MEDICAL ADVICE OR RECOMMENDATIONS. THE INFORMATION AND MATERIALS CONTAINED ON THE PLATFORM AND IN THE CALLS ARE PROVIDED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY, AND ANY JUDGMENTS OR DECISIONS REACHED IN CONNECTION WITH SUCH INFORMATION OR MATERIALS ARE MADE AT YOUR SOLE ELECTION. WHEN THE PLATFORM, THE CONTENT, OR ANY CALL INCLUDES ESTIMATES OR PREDICTIONS OF FUTURE EVENTS OR BEHAVIORS, SPAREMIN MAKES NO GUARANTEES AS TO THE OCCURRENCE OF SUCH FUTURE EVENTS OR BEHAVIORS.
YOU, ON BEHALF OF YOURSELF AND YOUR HEIRS, NEXT OF KIN, SPOUSE, GUARDIANS, LEGAL REPRESENTATIVES, AGENTS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “RELEASING PARTIES”), AGREE THAT SUCH RELEASING PARTIES SHALL NOT HAVE ANY RIGHT OR CAUSE OF ACTION, AND HEREBY FULLY, FINALLY, AND FOREVER RELEASE, DISCHARGE, AND ACQUIT SPAREMIN AND ITS PAST, CURRENT, AND FUTURE MEMBERS, SHAREHOLDERS, EMPLOYEES, OFFICERS, DIRECTORS, SUBSIDIARIES, PARENT ENTITIES, ATTORNEYS, PRINCIPALS, TRUSTEES, REPRESENTATIVES, AGENTS, PARTNERS, AFFILIATES, PREDECESSORS, SUCCESSORS, OPERATING PARTNERSHIPS, GENERAL PARTNERS, INSURERS, REINSURERS, AND ASSIGNS FROM ANY AND ALL CLAIMS, SUITS, OBLIGATIONS, COSTS, DAMAGES, LOSSES, CLAIMS FOR SUMS OF MONEY, CONTRACTS, CONTROVERSIES, AGREEMENTS, JUDGMENTS, AND DEMANDS WHATSOEVER, RIGHTS, LIABILITIES, ACTIONS, AND CAUSES OF ACTION OF ANY NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, AT LAW OR IN EQUITY, FIXED OR CONTINGENT, WHICH SUCH RELEASING PARTIES NOW HAVE OR MAY CLAIM TO HAVE IN THE FUTURE (COLLECTIVELY, “CLAIMS”) ARISING OUT OF, BASED UPON, ATTRIBUTABLE TO, OR IN CONNECTION WITH YOUR INTERACTION WITH OTHER REGISTERED USERS, ANY CALL, AND YOUR EXPERIENCE AS A CALLER OR AN INFLUENCER.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT IT IS THE INTENTION OF THE PARTIES THAT THE FOREGOING RELEASE AND DISCHARGE SHALL BE EFFECTIVE AS A BAR TO ALL CLAIMS OF WHATEVER CHARACTER, NATURE, AND KIND, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, HEREINABOVE SPECIFIED TO BE SO BARRED. IN FURTHERANCE OF THIS INTENTION, THE RELEASING PARTIES EXPRESSLY WAIVE ANY AND ALL RIGHTS AND BENEFITS CONFERRED UPON THEM BY THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH STATES AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
3. COMMUNITY GUIDELINES
By accessing and/or using the Platform, you hereby agree that:
We reserve the right, in our sole and absolute discretion, to deny you access to the Platform, or any portion of the Platform, without notice and without liability to you, if you fail to adhere to these guidelines. We also reserve the right to remove any Call or other content from the Platform that violates any of these guidelines.
If you have accessed or used the Platform through an application downloaded from the Apple, Inc. (“Apple”) application store (such app, the “App”), you will use the App only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” as defined and set forth in the Apple App Store Terms of Service.
The Platform is available for individuals aged 13 years or older. If you are 13 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parents or guardian understand it.
5. REGISTRATION; CREDENTIALS
During the registration process for Registered Users, you will be prompted to provide certain information that will assist in authenticating your identity when you log-in in the future (“Credentials”). You will provide your Credentials directly to us or authorize us to obtain your Credentials through a third-party platform, such as Facebook. When creating your account, you must provide true, accurate, current, and complete information. Each set of Credentials can be used by only one Registered User. You are solely responsible for the confidentiality and use of your Credentials, as well as for any use, misuse, or communications entered through the Platform using one or more of them. You will promptly inform us of any need to deactivate an account or change your Credentials. We reserve the right to delete or change any Credentials we have supplied to you at any time and and for any reason. Sparemin will not be liable for any loss or damage caused by any unauthorized use of your account.
6. INTELLECTUAL PROPERTY
The Platform contains material, such as software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of Sparemin (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. Except as otherwise set forth herein, the use or posting of the Content on any other Platform or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and the Platform automatically terminates.
The trademarks, service marks, and logos of Sparemin (“Sparemin Trademarks”) used and displayed on the Platform are registered and unregistered trademarks or service marks of Sparemin. Other company, product, and service names located on the Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Sparemin Trademarks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Sparemin Trademarks inures to our benefit.
Elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
7. ACCESSING AND DOWNLOADING AN APP FROM APPLE
The following terms apply to the App. These terms are in addition to all other terms contained in these Terms of Service:
Š You acknowledge and agree that (i) these Terms of Service are concluded between you and Sparemin only, and not Apple, and (ii) Sparemin, not Apple, is solely responsible for the App and content thereof. Your use of the App must comply with the App Store Terms of Service.
Š You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
Š In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. As between Sparemin and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Sparemin.
Š You acknowledge that, as between Sparemin and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
Š You acknowledge that, in the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, as between Sparemin and Apple, Sparemin, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Service.
Š 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.
Š You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service as related to your license of the App, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service as related to your license of the App against you as a third party beneficiary thereof.
Š Without limiting any other terms of these Terms of Service, you must comply with all applicable third-party terms of agreement when using the App.
8. USER CONTENT
Registered Users may provide certain information, data, graphics, text, or other content to the Platform or in a Call. The Registered User warrants that it has the necessary rights and/or third-party consents to freely use and share any content which the Registered User provides in a Call or otherwise to the Platform (collectively, the “User Content”). For avoidance of doubt, “User Content” includes all recordings of Calls. The Registered User accepts full responsibility for User Content that the Registered User uploads or in other ways makes available via the Platform, and represents, warrants, and covenants that such User Content shall comply with all applicable laws, rules, and regulations. You expressly acknowledge and agree that once you submit or provide your User Content to the Platform or on a Call, it will be accessible by others, and that there is no confidentiality or privacy with respect to such User Content, including, without limitation, any personally identifying information that you may make available.
You retain all copyrights and other intellectual property rights in and to your own User Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) your User Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised. You also grant us and our sublicensees the right, but not the obligation, to use your Credentials, User Content, name, likeness, and photograph in connection with any use of the related User Content permitted by the previous sentence and/or to advertise and promote the Platform, Sparemin Inc., and our products and services. Without limiting the foregoing, you acknowledge and agree that uses of your Credentials, User Content, name, likeness, and photograph permitted by the foregoing rights and licenses may include the display of such Credentials, User Content, name, likeness, and photograph adjacent to advertising and other material or content, including for profit.
To the extent your User Content is contained or reflected in a Call, you also grant the foregoing license to Influencers. Influencers may record and distribute Calls, both inside and outside of the Platform and as broadly permitted in the paragraph immediately above.
You may not publish User Content that damages the Sparemin brand or in any way implies improper association to Sparemin, and we reserve the right to remove such User Content if we determine in our sole discretion that it does so.
The Registered User accepts that by providing User Content, the User Content will become available to other users on the Internet who may share, download, republish or in other ways interact with it. Sparemin is not responsible for another person’s use or misuse of your User Content. User Content may be transferred unencrypted across various networks and it is subject to changes to conform to the Platform’s technical requirements. Sparemin may review and reject any User Content provided at any time.
9. COPYRIGHT COMPLAINTS
If you believe the Platform contains any content that infringes your copyright, please contact our Copyright Agent, as detailed below, with the following information:
Š An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
Š A description of the copyrighted work that you claim has been infringed;
Š A description of where the material that you claim is infringing is located on the Platform;
Š Your address, telephone number and email address;
Š A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
Š A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or duly authorized to act on the copyright owner’s behalf.
To contact our Copyright Agent by regular mail, please write to:
85 Broad Street, 18th FL
New York, NY 10004
To contact our Copyright Agent by email, please write to info@Sparemin.com, with COPYRIGHT NOTICE in the subject line.
10. COMMUNICATIONS TO US
Although we encourage you to contact us, you should not provide us any content that contains confidential information. With respect to all communications you provide us, including but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production, and marketing of products and services that incorporate such information, without compensation or attribution to you.
11. NO WARRANTIES; LIMITATION OF LIABILITY
THE PLATFORM AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE PLATFORM WILL OPERATE ERROR-FREE OR THAT THE PLATFORM, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS: (I) WE SHALL NOT BE SUBJECT TO LIABILITY FOR ANY DELAYS OR INTERRUPTIONS OF THE PLATFORM FROM WHATEVER CAUSE, AND YOU AGREE THAT YOU USE THE CONTENT AND THE PLATFORM AT YOUR OWN RISK; (II) WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; (III) WE SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE PLATFORM OR THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF YOUR USE OF THE PLATFORM OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE COSTS UNLESS REQUIRED BY APPLICABLE LAWS.
THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL OR TECHNICAL ERRORS OR OMISSIONS. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE PLATFORM AT ANY TIME WITHOUT NOTICE.
12. EXTERNAL SITES
The Platform may contain links to third-party websites, platforms, applications, or services (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You will defend, indemnify, and hold harmless Sparemin, our affiliates, and our and their respective officers, directors, managers, employees, and agents from any and all liabilities, costs, damages, and expenses (including reasonable attorneys’ fees) in connection with any third-party action, claim, or proceeding (each, a “Claim”) arising from your breach of this Agreement or your access to, use, or misuse of the Platform or the Content. We shall promptly notify you of any Claim; provide you, at your expense, with reasonable cooperation in the defense of the Claim; and provide you with sole control over the defense and negotiations for a settlement or compromise. Notwithstanding the foregoing, we reserve the right to assume the exclusive defense and control of any Claim that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
14. COMPLIANCE WITH APPLICABLE LAWS
The Platform is based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Platform or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
15. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Platform, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Platform at any time without prior notice or liability.
16. CONTROLLING LAW
This Agreement is governed by the internal substantive laws of the State of New York, without respect to its conflict of law provisions.
17. BINDING ARBITRATION
In the event of a dispute arising under or relating to this Agreement or the Platform (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court in New York, New York may enforce the arbitrator’s award. The arbitration shall be administered by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, if applicable, or otherwise pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (the “JAMS Rules”). Such disputes will be resolved by the arbitrator as determined under the JAMS Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. If conducted in person, the arbitration shall take place in New York, New York. The parties may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In addition, we may bring an action for injunctive relief in any court of competent jurisdiction.
18. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect. The following provisions will survive any expiration or termination of this Agreement: “Waiver and Release,” “Intellectual Property,” “User Content,” “Communications to Us,” “No Warranties; Limitation of Liability,” “Indemnification,” “Termination of the Agreement,” “Controlling Law,” “Binding Arbitration,” “Class Action Waiver,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Copyright 2015 SpareMin, Inc. All rights reserved.