Terms and Conditions 2
Terms & Conditions: second part
20 INTELLECTUAL PROPERTY
20.1 All intellectual property rights (including the various rights conferred by statute, common law and equity in and in relation to copyright, patents, trademarks, service marks, trade names and/or designs (including the “look and feel” and other visual or non-literal elements) (whether registered or unregistered) in:
20.1.1 our Services; 20.1.2 Subject to clause 20.3, information content on our Services; and 20.1.3 All the design, text and graphics, software, photos, videos, music, sounds, and their selection and arrangement, and all software compilations, underlying source code and software (including applets and scripts) of our Services, are owned by or licensed to the Company. You shall not, and shall not attempt to, obtain any title to any such intellectual property rights. All rights are reserved.
20.2 None of the material listed in clause 20.1 may be reproduced or redistributed or copied, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, sold, rented or sub-licensed, used to create derivative works, or in any way exploited without the prior express written permission of the Company. You may, however, retrieve and display the content of our Services on a computer screen (including any tablet or smartphone device), store such content in electronic form on disk (but not on any server or other storage device connected to a network) or print one copy of such content for your own personal, non-commercial use, provided you keep intact all and any copyright and proprietary notices. You may not otherwise reproduce, modify, copy or distribute or use for commercial purposes any of the materials or content on our Services without the express prior written permission of the Company.
20.3 Title, ownership rights and intellectual property rights in and to content accessed using our Services is the property of the applicable content owner or supplier and may be protected by applicable copyright, trademark or other law. Subject to the limited rights described in clause 20.2, this Agreement gives you no rights to such content.
20.4 The authors of the literary and artistic works in the pages in our Services have asserted their moral rights to be identified as the author of those works.
20.5 Any material you transmit, post or submit to the Company either through our Services or otherwise (Material) shall be considered (and the Company may treat it as) non-confidential (subject to the Company’s obligations under privacy legislation). You grant the Company a royalty-free, perpetual, irrevocable, non-exclusive licence to use, copy, modify, adapt, translate, publish and distribute world-wide any Material (other than Ideas).
20.6 All comments, suggestions, ideas, notes, drawings or concepts in which intellectual property rights subsist which are disclosed or offered to the Company by you or offered in response to solicitations by the Company regarding our Services (Ideas) shall be deemed to be and shall remain the property the Company and you hereby assign all existing present and future intellectual property rights in Ideas, to the Company. You must do all things reasonably requested by the Company to assure further the assignment of such rights. You understand and acknowledge that the Company has both internal resources and other external resources which may have developed or may in the future develop ideas identical to or similar to Ideas and that the Company is only willing to consider Ideas on these terms. In any event, Ideas are not submitted in confidence and the Company assumes no obligation, express or implied by considering it. Without limitation, the Company will exclusively own all now known or hereafter existing rights to the Ideas of every kind and nature throughout the world and shall be entitled to unrestricted use of the Ideas for any purpose whatsoever, commercial or otherwise without compensation to the provider of the Ideas.
21 DISCLAIMER OF WARRANTIES
21.1 You understand and agree that your use of the Apps, the Websites and/or the Services is at your sole risk.
21.2 The Apps, the Websites and the Services are provided on an “as is” and “as available” basis without warranties or conditions of any kind, either express or implied (to the maximum extent permitted by applicable law).
21.3 To the maximum extent permitted by applicable law, the Company expressly disclaims all warranties and conditions including, without limitation, warranties and conditions of satisfactory quality, merchantability, fitness for a particular purpose, non-infringement, and those arising from course of dealing or usage of trade.
21.4 The Company makes no warranty as to the accuracy, completeness or reliability of any materials, information or data available through, or the performance of, the Apps, the Websites and/or the Services.
21.5 The Company does not represent or warrant that:
21.5.1 you will be able to access or use the Apps, the Websites and/or the Services at the times or locations of your choosing;
21.5.2 that operation of the Apps, the Websites and/or the Services will be uninterrupted, timely, error-free;
21.5.3 your use of the Apps, the Websites and/or the Services will meet your requirements;
21.5.4 defects in the operation of the Apps, the Websites and/or the Services will be corrected; or
21.5.5 the Apps, the Websites and/or the Services is free of viruses or other harmful components.
21.6 You acknowledge and agree that any material downloaded or otherwise obtained through the use of the Apps, the Websites and/or the Services is at your own risk and that you will be solely responsible for any damage to your computer, mobile phone or other device or any loss of data resulting from downloading or obtaining such material.
21.7 Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the Company expressly disclaims all warranties and conditions to the maximum extent permitted by applicable law.
22 LIMITATION OF LIABILITY
22.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL , THE COMPANY, ITS SUBSIDIARIES OR HOLDING COMPANY, ANY SUBSIDIARY OF ANY SUCH HOLDING COMPANY, AFFILIATES, SUCCESSORS, ASSIGNS, AND THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, WHETHER INDIVIDUALLY OR COLLECTIVELY (THE “RELATED PARTIES”), BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF PROGRAMS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR SERVICE INTERRUPTIONS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
22.2 WE DO NOT CONDUCT BACKGROUND CHECKS ON MEMBERS REGISTERING FOR THE SERVICES IN ANY WAY. ANY ATTEMPT BY US TO SCREEN MEMBERS IS NOT A GUARANTEE OF SAFETY ON THE WEBSITE. YOU ARE RESPONSIBLE FOR YOUR OWN SAFETY ON THE WEBSITE AND WHEN MEETING OTHER MEMBERS IN PERSON.
22.3 THE RELATED PARTIES WILL NOT BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL AND/OR CONSEQUENTIAL ARISING OUT OF THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF YOUR COMMUNICATIONS WITH AND/OR INTERACTIONS WITH ANY OTHER MEMBER OF THE SERVICES, OR ANY INDIVIDUAL YOU MEET VIA THE SERVICES.
22.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OR TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT THE LIMITATIONS IN THIS CLAUSE, THE RELATED PARTIES’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SERVICES DURING THE TERM OF YOUR MEMBERSHIP OR SUBSCRIPTION TO THE MAXIMUM EXTENT PERMITTED BY LAW.
22.5 IN ALL CASES, THE RELATED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
23.1 You agree to, and you hereby, defend, indemnify, and hold the Related Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Related Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter:
23.1.1 any of your data posted or otherwise provided on the Services;
23.1.2 your Material;
23.1.3 your use of the Services and your activities in connection with the Services, including your communications and meetings with Members you meet through the Services;
23.1.4 your breach or alleged breach of this Agreement or any additional terms;
23.1.5 your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Services or your activities in connection with the Services;
23.1.6 information or material transmitted through your computer or other devices, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity;
23.1.7 any misrepresentation made by you; and
23.1.8 the Related Parties’ use of the information that you submit to us (including your Material) (all of the foregoing, “Claims and Losses”).
You will cooperate as fully required by Related Parties in the defense of any Claims and Losses. Notwithstanding the foregoing, Related Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Related Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Related Party.
24 GOVERNING LAW; JURISDICTION
24.1 The laws applicable to the interpretation of these Terms & Conditions shall be the laws of the Province of Ontario and the federal laws applicable therein, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and excluding principles of conflict of laws. Except as provided in Section 25 below, you irrevocably submit to the personal and exclusive jurisdiction of the state and federal courts located in Ontario for all disputes arising out of or related to your use of any of the Services.
24.2 The governing law does not impact your rights as a consumer according to the consumer protection laws and regulations of your country of residence.
24.3 You acknowledge and agree that the Company would be irreparably damaged if the terms of these Terms & Conditions were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Terms & Conditions, in addition to such other remedies as we may otherwise have available to us under applicable laws.
25 DISPUTE RESOLUTION; ARBITRATION –WITHIN THE UNITED STATES AND CANADA
IF YOU RESIDE IN THE UNITED STATES OR CANADA (OR YOU BRING A CLAIM AGAINST THE COMPANY IN THE UNITED STATES OR CANADA), YOU ARE SUBJECT TO THE FOLLOWING SECTION. PLEASE READ THIS SECTION CAREFULLY.
25.1 This provision shall apply to the resolution of any dispute arising out of or in any way related to the Services, this Agreement (and any amendments or addenda thereto), and the subject matter hereof, including without limitation any contract, tort, statutory or equity claims between you and us or our officers, directors, employees, agents, subsidiaries, or joint ventures (the “Dispute”); provided, however, that any claims specifically described in subparagraph (b) below will not be included in the definition of Dispute. You may also assert claims in small claims court if your claims qualify. In the event of any Dispute, the parties are encouraged to attempt to resolve the Dispute by informal means. If the parties are not able to do so, the Dispute will be resolved only by binding arbitration.
25.2 Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. Any Dispute shall be subject only to binding arbitration. The parties expressly agree that there shall be no jury trial or right to a jury trial, or right to any other proceeding to resolve any Dispute in any court. In the event of any Dispute, both parties agree that the arbitration provision in this Agreement will be governed, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1-9 (“FAA”) to the maximum extent permitted by applicable law.
25.3 All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties, and any party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive, or declaratory relief in an appropriate court of law. This provision shall not prevent either party from filing a petition in court to confirm an arbitration award.
25.4 The parties expressly agree that any Dispute is personal to them, and any Dispute shall only be resolved by an individual arbitration. Neither party agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither party agrees that a Dispute can be brought as a class or representative action outside of arbitration, or on behalf of any other person or persons. The parties agree that that a Dispute may only be resolved through an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding. If your agreement to waive any right to a jury trial or to participate in a class action is found to be unenforceable, then the entirety of this arbitration section will be null and void and neither you nor we will be entitled to arbitrate our dispute.
25.5 The arbitration of the Dispute will be administered by the American Arbitration Association (“AAA”) or, in the event the AAA declines or is unable to administer the arbitration, by an arbitration forum or arbitrator that you and we mutually agree upon. If, after making a reasonable effort, you and we are unable to agree upon an arbitration forum or arbitrator, the AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be conducted in accordance with the AAA’s Commercial Arbitration Rules (“Commercial Rules”) and, when deemed appropriate by the arbitration forum or arbitrator, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Consumer Procedures”), or the appropriate rules of any alternative arbitration forum selected by you and us or appointed by a court, subject to the following modifications:
25.5.1 The arbitration will be conducted before a single arbitrator who will be a licensed attorney or a former judge and will have at least five (5) years of legal experience in the resolution of commercial disputes.
25.5.2 As limited by the FAA, the terms of this Agreement, and the applicable AAA rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute. This does not include the power to conduct a class arbitration or a representative action, which is prohibited by the terms of this Agreement as stated above. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding, or any proceeding on behalf of or involving more than one person or persons.
25.5.3 The parties may take discovery through interrogatories, depositions and requests for production that the arbitrator determines to be necessary and appropriate.
25.5.4 The prevailing party in any of the following matters (without regard to the Limitation of Liability provisions) shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any of the following circumstances:
(a) a motion which any party is required to make in any court to compel arbitration of a Dispute; (b) any appeal of an arbitration award, whether to the arbitrator or the courts, for the purpose of vacating or modifying the award; or (c) any action to enforce the confidentiality provisions stated herein we will pay the amount of any arbitration costs and fees charged by the AAA for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. In no event will we pay for your attorneys’ fees unless required by law.
25.5.5 To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to:
Legal Department Spark Networks Services GmbH Kohlfurter Straße 41/43 10999 Berlin, Germany
25.5.6 You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The AAA Commercial Rules and Consumer Procedures, the forms you may need to begin the arbitration proceeding, and other information about the AAA, are available from the AAA, which can be contacted by mail at 1633 Broadway, Floor 10, New York, New York 10019, by telephone at (800) 778-7879, or through its website at www.adr.org.
25.6 This Agreement does not require you or us to submit to arbitration any Dispute involving our intellectual property rights in and to the websites or the Service, including, without limitation:
25.6.1 claims of infringement or misappropriation of any United States or foreign copyright, patent, trade secret, trademark, service mark or trade dress;
25.6.2 claims alleging violations of Title 17 of the United States Code, Sections 1201 and/or 1202, or of any similar foreign law; or
25.6.3 in any matter that involves any of the foregoing claims, for resolution or decision of any question of fact or law required to resolve such claim, including, but not limited to, questions required to decide or rule with respect to the infringement, misappropriation, validity, enforceability or ownership of any copyright, patent, trade secret, trademark, service mark or trade dress or with respect to any remedy or relief at law or in equity for any such infringement or misappropriation or for any violation of such Sections 1201 and/or 1202.
25.7 You and we acknowledge and agree that any violation of this Section 25 of this Agreement may cause the parties irreparable harm, and therefore you and we agree that the parties will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that the parties may have for a breach of this Section 25 of this Agreement.
25.8 With the exception of your agreement to waive any right to a jury trial or to participate in a class action, if any other provision in this Section 25 is held to be illegal, invalid or unenforceable, such provision shall be fully severable, this Section 25 shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this section, and the remaining provisions of this section shall remain in full force and effect. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of this Section 25 a legal, valid and enforceable provision as similar as possible to the former provision.
26 LIMITATION OF TIME PERIOD TO COMMENCE ANY DISPUTE
26.1 Regardless of any statute of limitations or law to the contrary, and to maximum extent permitted by applicable law, any Dispute arising out of or related to the Services or this Agreement must be filed within six (6) months after the date in which the incident giving rise to the Dispute occurred; provided that, if the substantive law applicable to the arbitration prohibits the parties from agreeing to this limitations period, then the limitations period under the applicable substantive law shall control. The failure of a party to file an arbitration claim within the applicable limitations period shall constitute a waiver by that party of its right to bring such a claim relating to any Dispute in any form, and a complete bar to any claim based on any Dispute, and the arbitrator shall not have jurisdiction to make a determination for a party that has not brought its Dispute for determination within the applicable limitations period.
27.2 The Agreement is not intended to create a partnership, joint venture or relationship of principal and agent between the parties.
27.3 No waiver by the Company of any breach of this Agreement shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
27.4 The Company may assign its rights under these Terms & Conditions to any person or entity without your consent. The rights granted to you under these Terms & Conditions may not be assigned without the Company’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
27.5 Clauses 20 to 27 inclusive will survive termination or expiration of this Agreement.
27.6 Force Majeure
27.6.1 For the purposes of this clause 27.6, “Force Majeure Event” means any act or event beyond the reasonable control of the Company, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks.
27.6.2 The Company will not be liable for any failure to perform or any delay in performance of, any of its obligations under these Terms & Conditions caused by a Force Majeure Event.
27.6.3 In the event of a Force Majeure Event that results in Services being unable to be provided for 14 days or more, either party may terminate this Agreement with immediate effect upon written notice to the other and neither party will have the right to claim compensation from the other.