These Terms and Conditions (“Terms” or “TOU”) is a binding contract between you, an individual user (“you”) and Local Spark Solutions (“Local Spark,” “we’” “us” or “our”), governing your use of the website located at LocalSpark.ai and any related subdomains (‘Site”). BY ACCESSING OR USING THE SITE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS TOU. IF YOU DO NOT AGREE TO THIS TOU, THEN YOU MUST NOT ACCESS OR USE THE SITE.
The Local Spark software provides business owners the opportunity to rapidly deeply unique and useful content to the public. It is expected that the software will be used lawfully in accordance with international, national, provincial, and local intellectual property guidelines. Local Spark is not meant to be, nor shall be, used in any way outside of that scope. As such, Local Spark reserves the right to immediately terminate its relationship with any customer, with cause, should it be discovered that the customer is in any way operating illegally, unlawfully, or unethically in line with Local Spark’s core values and operating standards.
Material terms: As provided in greater detail in this TOU (and without limiting the express language of this TOU), you acknowledge the following:
The Site is provided “as is” without warranties of any kind and Local Spark’s liability to you is limited; and We will resolve disputes arising under this TOU through binding arbitration. BY accepting this TOU, as provided in greater detail in Section 14 of this TPU, you and Local Spark are each waiving the right to trial by jury or to participate in a class action.
Local Spark is willing to license Your use of the Website, and Software provided or made available to You only upon the condition that You accept all the terms contained in this Agreement.
IN CONSIDERATION OF YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, AND OF YOUR AGREEMENT TO ABIDE BY ALL TERMS APPLICABLE TO YOUR ACCESS OR USE OF THE WEBSITE AND/OR SOFTWARE, INCLUDING PAYMENT OBLIGATIONS TO Local Spark (including by any separate agreement, purchase order, or representation to Local Spark), Local Spark hereby grants You, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable (except as provided in Section 17 (General)), non-sublicensable and (as expressly provided in this Agreement) terminable license to access and use the Website and Software made available to You via the Website.
Only During the term of this Agreement, You may access and use the Website and any Software provided to You by way of the Website solely for Your personal use or, if applicable, for the internal business use of the company that You represent, or represented at the time that You accepted this Agreement.
You may not at any time remove or alter any copyright notices of any Local Spark product or work. You may not rent, lease or otherwise transfer Software, nor use of, or access to the Website. Unless permitted by law, despite Your agreement to the contrary, You may not, and You agree not to reverse engineer, decompile, or disassemble the Software, or attempt to do so.
Access and Use of the Website and Software
With respect to Your authorized use of, and access to the Website or Software, including any Software provided as a Software-as-a Service modality (SaaS), Local Spark will use commercially reasonable efforts to make such SaaS Services available to You, subject to downtime for scheduled or emergency maintenance.
You may only use the SaaS Services in connection with Your authorized and here-licensed access to the Website and Software and solely for Your internal business purposes.
The Website, all Software, and any portion or subcomponent of either, including any derivative works of either, is/are licensed, not sold, and are licensed solely as provided in this Agreement.
For purposes of this Agreement, any use of terms such as “purchase,” “sell” and the like, and used in any way associated with Your use of the Website and/or Software refers only to a license to use the Software and not to a purchase or sale of title to or ownership of any rights or other interests in the Software. You acknowledge and agree that Local Spark retains ownership of all, and all components of, the Website and Software itself and any related data or databases used by Local Spark, including all intellectual property rights therein. The Website and Software are protected by U.S. copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Website or Software as, if applicable, delivered to You. Local Spark reserves all rights in the Website and Software not expressly granted to You in this Agreement.
If You provide any ideas, suggestions, or recommendations regarding the Website or Software (“Feedback”), Local Spark will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. By providing Feedback, You grant Local Spark a worldwide, perpetual, irrevocable, sublicensable, fully-paid and royalty-free license to use and exploit in any manner such Feedback.
Unless Local Spark receives express consent from You, Your trade name (and the corresponding trademark or logo) will not be used in any public marketing materials to identify You as a customer.
You may terminate the license at any time following the initial twelve (12) month license agreement by:
(1) not timely paying charges by Local Spark for access to, or use of Software, as communicated to You from time to time;
(2) by notifying Local Spark of Your intent to terminate this Agreement;
(3) by breaching any material terms of this Agreement.
Local Spark may terminate this Agreement by notifying You via an email address provided by You and, if You have paid for a period of use of the Website and Software, for a term that has not, at the time of notice, not yet expired, offering a prorated refund of such payments, along with initiation of a refund process according to Local Spark’s then-current policies and procedures for issuing refunds to its customers.
Upon termination or expiration of this Agreement, Your rights to Access the Website and use of Software cease. Sections 3, 5, 9, 10, 11, 13, 14, 15, 16 and 17 of this Agreement will survive any termination or expiration of this Agreement.
The price payable by You is the price stated on the Website, or applicable purchasing documentation (or, if no such price is specified, the price set out in our then-current standard published price list).
Local Spark’s prices are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). If Local Spark issues an invoice to You, all invoices are payable within 30 days of the invoice date unless specified differently in the invoice or purchasing documentation. You are responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made to us, other than any taxes based on Local Spark’s net income. All amounts are payable and charged (i) at the beginning of the subscription, when You place Your order, and (ii) because each subscription renews automatically until You cancel it in accordance with this Agreement, at the time of each renewal until You cancel. You must cancel Your subscription in accordance with this Agreement before it renews to avoid the billing of the fees for the next subscription period. You will not receive a refund for the fees You already paid for Your current subscription period. You can cancel Your subscription at any time in accordance with this Agreement.
By entering into this Agreement You agree to the terms of Local Spark’s privacy policy, which can be found here (as may be updated from time to time, the “Privacy Policy”). More information concerning what data is collected and used by Local Spark and how it is used is available in the Privacy Policy. Without limiting the Privacy Policy, You agree that Local Spark may track certain data it obtains from Your Device, including data about any malicious software, exploits or other threats flagged by the Software (including but not limited to potential sources of such threats, such as payload files, file format and recent URL’s visited), data about Your license, data about what version of the Software You are using and what operating conditions it runs under and data concerning Your geographic location. This information is collected and used for the sole purpose of (a) tracking malicious software, exploits and other threats, and (b) evaluating and improving Local Spark’s products and services. We may share data relating to malicious software, exploits or other threats flagged by the Software with third parties. In the event that any user who operates the Software as permitted under this Agreement (including, if You are a Local Spark for Business customer, Your Authorized Users) makes a complaint or claim based on the tracking or collection of data in accordance with this Section 9, You agree that You are solely responsible for addressing any such complaints or claims.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Local Spark OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. Local Spark does not warrant that the Website, Software, or any information or services provided through either will meet Your requirements, that any Software will operate in the combinations, on the operating system or in the environments that You may select for execution, that the operation of Software will be error-free or uninterrupted, or that all Software errors will be corrected.
Local Spark’s TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AMOUNTS PAID TO Local Spark BY YOU FOR THE SOFTWARE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT WILL Local Spark BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT Local Spark HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
The Software is a “commercial item” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Software is being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the
U.S. Government’s rights in the Software will be only those specified in this Agreement.
(a) Export Laws You agree to comply fully with all U.S. and other applicable export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.(b) EU Data Protection Laws
To the extent Local Spark processes personal data of an EU data subject (“Personal Data”) on behalf of You as a processor as defined by EU data protection laws, it shall do so only on documented instructions from You pursuant to this Agreement, to operate Local Spark Software, and as permitted or required by applicable law. In the event Local Spark processes Personal Data for purposes other than the above, it shall do so as data controller as defined in the EU data protection laws.
By entering into this Agreement, You have instructed Local Spark to process Your Personal Data in such manner. To the extent mandated by applicable EU data protection laws, Local Spark shall:
(1) take appropriate measures to ensure the security of Personal Data processed;
(2) ensure that its personnel who process Personal Data are subject to a duty of confidence;
(3) ensure that no third party processes any Personal Data received from You except in accordance with EU data protection laws or with the consent of You as applicable;
(4) reasonably assist You with Your rights and obligations as data controllers, including assistance with: obligations in connection with data subject access requests and other data subject rights under EU data protection laws; and controllers’ responsibilities concerning the security of processing and audit requirements;
(5) notify You if a security incident has occurred that compromises the privacy, security or confidentiality of Your Personal Data, provided that we have Your contact information, investigate such security incident and take reasonable steps in mitigating the effects and minimizing any damage resulting from the security incident as required by applicable law;
(6) only retain Personal Data after the end of the Agreement if there is a statutory legal basis to do so or for the period specified in the Privacy Policy, subject to EU data protection laws;
(7) subject to applicable laws, delete Personal Data upon Your request unless there is a statutory legal basis to retain it.
Personal Data may be sent to facilities hosted outside of the country where You purchased or utilize the Website and/or Software. Local Spark will comply with the European Economic Area data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area, pursuant to the EU-US Privacy Shield and the E.U. Standard Contractual Clauses for data transfer, where applicable.
(a) Agreement to Arbitrate:
If You are a Local Spark customer and acquired access to the Website and/or Software in the U.S., You (and any company that You represent in entering this Agreement) agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Software (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, You will also have the right to litigate any other Dispute if You provide Local Spark with written notice of Your desire to do so by email to HelmLegal@localspark.ai within 30 days following the date You first access the Website or access or use Software, or agree to the present terms and conditions, whichever is earlier (such notice, an “Arbitration Opt-out Notice”). If You don’t provide Local Spark with an Arbitration Opt-out Notice within such 30 day period, You will be deemed to have knowingly and intentionally waived Your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if You timely provide Client with an Arbitration Opt-out Notice, will be the state or federal courts located in the Middle District of Florida, and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless You timely provide Client with an Arbitration Opt-out Notice, You acknowledge and agree that You and Local Spark are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both You and Local Spark otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this Section will be deemed void. Except as provided in the preceding sentence, this Section will survive any termination of this Agreement.
(b) Arbitration Rules
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Section. (The AAA Rules are available at Local Spark.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
(c) Arbitration Process
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
(d) Arbitration Location and Procedure
Unless You and Local Spark otherwise agree, the arbitration will be conducted in the county where You reside. If Your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that You and Local Spark submit to the arbitrator, unless You request a hearing or the arbitrator determines that a hearing is necessary. If Your claim exceeds $10,000, Your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
(e) Arbitrator’s Decision
(f) The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of Section 9 (“Limitation of Liability”) as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party shall be entitled to seek an award of attorneys’ fees and expenses, to the extent permitted under applicable law. Fees
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Each party agrees to indemnify and hold the other party (and its officers, employees, and agents) harmless, including costs and reasonable attorneys’ fees, from any claim or demand made by any third party to the extent due to or arising out of the indemnifying party’s (a) breach of Section 16 (Confidentiality); or (b) violation of applicable laws or regulations (including but not limited to data protection laws). The indemnified party reserves the right, at the indemnifying party’s expense, to assume the exclusive defense and control of any matter for which it is required to indemnify hereunder, and the indemnifying party agrees to cooperate with such defense of these claims. The indemnifying party agrees not to settle any matter without the prior written consent of the indemnified party. The indemnified party will use reasonable efforts to notify the indemnifying party of any such claim, action or proceeding upon becoming aware of it.
You, and if applicable, any company on whose behalf You are accessing the Website and/or using any Software, HEREBY JOINTLY AND SEVERALLY AGREE to indemnify and hold harmless Local Spark from, and with respect to any claims, causes of action, damages, fines, penalties, sanctions or other liabilities, including the all of Local Spark’s costs and expenses for defending against any of the foregoing, if such claims, causes of action, damages, fines, penalties, sanctions or other liabilities arise in any way arise from, or relate to Your access or use of the Website, Software and/or any data or information provided by, generated by, or otherwise made available to You through such access or use.
Without limiting anything elsewhere contained in this Agreement, You agree to abide by all provisions of the Telephone Consumer Protection Act of 1991 (“TCPA”) – 47 U.S.C. § 227. You agree that you alone are responsible for any communications with third parties in any way associated with information or data that you obtain or generate through use of the Website and/or Software, and the indemnity of the preceding paragraph of this Section 15 shall apply to any actions against Local Spark and/or any entity related to Local Spark, including its successors and assigns, that in any way relate to Your violation or alleged violation of the TCPA. This same prohibition and indemnity obligation shall apply with respect to any act or omission by You that is in violation of any law, regulation, or ordinance relating to privacy, data use, or third party contact, and that results, directly or indirectly, into any claim or defense undertaking by Local Spark.
In connection with this Agreement, each of the parties may be exposed to and will be furnished with certain proprietary or non-public information, material or data relating to the other’s businesses, technologies, products, pricing, productions, or services, or plans therefor, which are confidential and not otherwise available or known to the public, including without limitation the terms of this Agreement (“Confidential Information”). Each party shall refrain from using (except directly in furtherance of this Agreement) and shall keep confidential and not reveal or disclose to any third party any Confidential Information; provided, however, that each party may disclose Confidential Information to its employees and independent contractors with a need to know to perform such party’s obligations under this Agreement, and third party counsel, advisors and accountants so long as all such third party disclosures are made pursuant to written obligations of confidentiality no less protective than the terms of this Agreement. Confidential Information does not include information that: (a) is or becomes generally available to the public other than as a result of a wrongful disclosure by or at the direction of the receiving party; (b) is or becomes available to the receiving party on a non-confidential basis from a source that is entitled to disclose it to such party; (c) was known to the receiving party prior to receipt from the disclosing party; or (d) is developed by the receiving party without the benefit of the Confidential Information. Notwithstanding any of the foregoing, a party may disclose Confidential Information if and solely to the extent that such disclosure is required by law, court order, judicial process, subpoena, or similar process, or applicable rule or regulation, provided that such party shall use commercially reasonable efforts to seek confidential treatment for any such disclosed Confidential Information, and to the extent legally permissible, promptly notify the disclosing party of such disclosure.
This Agreement will be governed by and construed in accordance with the laws of the State of Florida without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. If You are a U.S. resident, Section 12 (“Agreement to Arbitrate – U.S. Customers”) applies. If You are not a U.S. resident, You agree that any claims or actions regarding this Agreement may be brought solely in the state or federal courts located in the Middle District of Florida, and You waive any right to challenge jurisdiction and venue therein. Neither party may assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without the other party’s prior written consent, and any attempt to do so, without such consent, will be void; provided, however, that either party may assign this Agreement without such consent to its affiliate or to any acquirer of all or substantially all of its assets or capital stock (so long as such assignee is not a competitor of the non-assigning party and assumes all of the assigning party’s obligations hereunder). Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by email (we will email You at the email address You provided us when You initially purchased Your license), and in each instance will be deemed given upon receipt. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless You and Local Spark have executed a separate agreement.
If You have any questions regarding this Agreement, You may contact Local Spark at HelmSupport@localspark.ai If You wish to send us a legal notice, please start the subject line of Your email with “Attention: Legal Department”.