ViewSpark, Inc. provides its services (described below) to you through its website and mobile applications (the “Platform”) and related services (collectively, such services, including any new features and applications, and the Platform, the “Services”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). For purposes of the following Terms of Service, “ViewSpark,” “we,” “us,” “our,” and other similar terms, shall refer to the party with whom you are contracting. Certain portions of these Terms of Service apply specifically to Donors, Charitable Organizations, or Charitable Organization Representatives.
Finally, we encourage you, particularly if you intend to donate to a Campaign (as defined below), to review the “Fees” section of these Terms of Service.
Services Description: The Services are offered as a platform to users of the Services, which may include Charitable Organization Representatives and Donors (each defined herein) and other registered users of the Services (which may include users who simply interact with the Platform or Services). Among other features, the Services are designed to allow certain users (“Charitable Organization Representatives”) to conduct fundraising campaigns (each, a “Campaign”) by communicating with donors regarding their Charitable Organizations’ charitable work on the Platform to encourage monetary donations (“Donations”) from those registered users wishing to contribute funds to the Charitable Organization (“Donors”). A percentage of each Donation will be charged as fees for our Services. Please see our ”Fees” section for details.
Charitable Giving: Any donation made through the Platform will be subject to a Services fee as described in the “Fees” section. You understand and acknowledge, however, that ViewSpark is not a charity. You acknowledge that contributions to Charitable Organizations may not be deductible under your jurisdiction’s applicable tax laws and regulations.
The Services are a Platform; We are not a Broker, Financial Institution, Creditor or Charitable Institution: The Services are an administrative platform only. ViewSpark facilitates the Donation transaction between Charitable Organization Representatives and Donors, but is not a party to any agreement between a Charitable Organization Representative and a Donor, or between any user and a Charitable Organization. ViewSpark is not a broker, agent, financial institution, creditor or insurer for any user. ViewSpark has no control over the conduct of, or any information provided by, a Charitable Organization Representative or a Charitable Organization, and ViewSpark hereby disclaims all liability in this regard to the fullest extent permitted by applicable law.
ViewSpark does not guarantee that a Campaign or Charitable Organization will obtain a certain amount of Donations or any Donations at all. We do not personally endorse any Campaign, Charitable Organization Representative, or Charitable Organization, and we make no guarantee, explicit or implied, that any information provided through the Services by a user is accurate. We expressly disclaim any liability or responsibility for the success of any Campaign, or the outcome of any fundraising purpose. You, as a Donor must make the final determination as to the value and appropriateness of contributing to any Campaign, Charitable Organization Representative, or Charitable Organization.
We do not and cannot verify the information that Charitable Organization Representatives supply, nor do we guarantee that the Donations will be used in accordance with any fundraising purpose prescribed by a Charitable Organization Representative or Charitable Organization. We assume no responsibility to verify whether the Donations are used in accordance with any applicable laws; such responsibility rests solely with the Charitable Organization Representative or Charitable Organization, as applicable.
You, as a Charitable Organization Representative, represent, warrant, and covenant that (i) all information you provide in connection with a Campaign is accurate, complete, and not otherwise designed to mislead, defraud, or deceive any user; (ii) all Donations contributed to your Campaign will be used solely as described in the materials that you post; (iii) you will comply with your jurisdiction’s applicable laws and regulations when you solicit funds, particularly, but not limited to, laws relating to your marketing and solicitation for your project; and (iv) to the extent you share with us any personal data of any third party for any purpose, including the names, email addresses and phone numbers of your personal contacts, you have the authority (including any necessary consents), as required under applicable law, to provide us with such personal data and allow us to use such personal data for the purposes for which you shared it with us. You authorize ViewSpark, and ViewSpark reserves the right (but does not have any obligation) to, provide information relating to your Campaign with donors and beneficiaries of your Campaign, and with law enforcement or to assist in any investigation.
Taxes: It is your responsibility to determine what, if any, taxes apply to the Donations you receive through your use of the Services. It is solely your responsibility to assess, collect, report or remit the correct tax, if any, to the appropriate tax authority.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify ViewSpark of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you sign out from your account at the end of each session when accessing the Services. ViewSpark will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Services: ViewSpark reserves the right to modify, suspend or discontinue, temporarily or permanently, the Services (or any part thereof). We will endeavor to give you notice of any such modification, suspension or discontinuance. You agree that, to the extent permitted by law, ViewSpark will not be liable to you for any modification, suspension or discontinuance of the Services in accordance with these Terms of Service.
General Practices Regarding Use and Storage: You acknowledge that ViewSpark may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data or other content will be retained by the Services and the maximum storage space that will be allotted on ViewSpark’s servers on your behalf. You agree that ViewSpark has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Services. You further acknowledge that ViewSpark reserves the right to change these general practices and limits at any time, in its sole discretion. We will endeavor to give you notice of any such change where required by applicable law.
Mobile Services: The Services include certain services that are available via a mobile device, including (i) the ability to upload content to the Platform via a mobile device, (ii) the ability to browse the Platform from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By subscribing, you consent to receive text messages including updates and notifications regarding the particular non-profit to which you subscribed. By using the Mobile Services, you agree that we may communicate with you regarding ViewSpark and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. We shall comply with any additional requirements that may apply under local laws and regulations before communicating with you in this manner. In the event that you change or deactivate your mobile telephone number, you agree to promptly update your ViewSpark account information to ensure that your messages are not sent to the person that acquires your old number. How can your guest opt-in to your campaign? A guest will be asked to opt-in by sending a text message to the identified keyword such as “RESCUE”; or “CHARITY”; or they will have made a gift to the charity and provided their cell phone number for contact in the process.
How often will your user receive text messages? Up to 3 messages per week. Message and data rates may apply
How your user can opt-out to your campaign? Send text message “STOP”; to 52855.
How to get more information regarding Viewspark? Send text message “HELP”; to 52855.
T-Mobile is not liable for delayed or undelivered messages.
The shortcode will be shared with other nonprofit organizations that subscribe to the ViewSpark, Inc. platform and will comply will the ViewSpark, Inc. Terms of Service. The following charities are current users of the ViewSpark platform that will be utilizing the keyword/shortcode to send updates on their activities to their contacts: For information on Map International, text keyword “MAP,” For information on Pentecostal Church of God text keyword “PCG,” For information on The Marriage Resource, text keyword “TMR,” For information on Appalachia Service Project, text keyword “ASP,” For information on Sunday Breakfast Mission, text keyword “Sunday,”
No Financial activity will take place over the shortcode.
2. Conditions of Use
User Conduct: You are solely responsible for all Campaign descriptions, comments, videos, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or transmit or otherwise use via the Services. The following are examples of the kind of content and/or use that is illegal or prohibited by ViewSpark. However, this list is not exhaustive and ViewSpark reserves the right (but does not have the obligation) to investigate anyone by engaging public and private organizations, including, but not limited to collection agents, private investigators, and local, state, federal and applicable international agencies, and take appropriate action against anyone who, in ViewSpark’s sole discretion, violates any of the terms or spirit of these Terms of Service (or the principles described in our preamble hereto), including, without limitation, removing the offending content, suspending or terminating the account of such violators, stopping payments to any such Campaign, freezing or placing a hold on donated funds when ViewSpark reasonably believes it to be required by applicable law, and reporting you to law enforcement authorities or otherwise taking appropriate legal action. Without limiting the foregoing, you agree to not use the Services to:
A. establish or contribute to any Campaign with the implicit or express purpose relating to any of the following:
(1) any activity that violates any law or governmental regulation;
(2) content or campaigns that are fraudulent, misleading, inaccurate, dishonest, impossible or imitating any other person or fundraising campaign (whether on the Platform or not);
(3) illegal drugs, narcotics, steroids, controlled substances or other products that present a risk to consumer safety or any related paraphernalia;
(4) knives, explosives, ammunition, firearms, or other weaponry or accessories;
(5) annuities, investments, equity or lottery contracts, lay-away systems, off- shore banking or similar transactions, money service businesses (including currency exchanges, check cashing or the like), debt collection or crypto-currencies;
(6) gambling, gaming and/or any other activity with an entry fee and a prize, including, but not limited to casino games, sports betting, fantasy sports, horse or greyhound racing, lottery tickets, other ventures that facilitate gambling, games of skill or chance (whether or not it is legally defined as a lottery) or sweepstakes;
(7) the promotion of hate, violence, harassment, discrimination, terrorism, or intolerance of any kind relating to race, ethnicity, national origin, religious affiliation, sexual orientation, sex, gender or gender identity, or serious disabilities or diseases;
(8) activities with, in, or involving countries, regions, governments, persons, or entities that are subject to U.S. and other economic sanctions under applicable law, unless such activities are expressly authorized by the appropriate governmental authority;
(9) ransom, human trafficking or exploitation;
(10) pornography or other sexual content;
(11) offensive, graphic, perverse or sensitive content;
(12) the defense or support of anyone alleged to be involved in criminal activity;
(13) offering monetary rewards, including gift cards;
(14) transactions for the sale of items before the seller has control or possession of the item;
(15) collection of payments on behalf of merchants by payment processors or otherwise; or
(16) credit repair or debt settlement services.
B. transmit or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; or (vi) in the sole judgment of ViewSpark, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose ViewSpark or its users to any harm or liability of any type; or
C. interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; or
D. harvest or collect email addresses or other contact information of other users from the Services by electronic or other means.
Donations: In order to contribute to a Campaign or to a Charitable Organization, a Donor will be required to provide ViewSpark information regarding its credit card or other payment instrument. You, as a Donor, represent and warrant to ViewSpark that such information is true and that you are authorized to use the payment instrument. You agree that a certain minimum Donation amount may apply, and that all Donation payments are final and will not be refunded unless ViewSpark, in its sole discretion, agrees to issue a refund. Donors may have the option to contribute recurring period Donations, and in electing to contribute on a recurring basis, you, as a Donor (i) agree to promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur and to pay the Donation amount that you specify, and (ii) hereby authorize ViewSpark to bill your payment instrument in advance on a periodic basis until you terminate such periodic payments, which can be done at any time through the Platform.
Fees: ViewSpark charges the Charitable Organization percentage of each Donation contributed to a Campaign. Donors acknowledge that by contributing a Donation to a Campaign, the Donor is agreeing to any and all applicable terms and conditions set forth by the payment processor, in addition to these Terms of Service, including the payment processor’s Services Agreement, available at their website.
We reserve the right to change ViewSpark’s Fee pricing from time to time. If ViewSpark does change its Fees, ViewSpark will provide advance notice of the change on the Platform or in email to you, at ViewSpark’s option. Your continued use of the Services after the Fee change becomes effective constitutes your acceptance of the updated Fees. All Fees referred to in these Terms of Service are exclusive of Value Added Tax, Goods and Services Tax and any other taxes, where applicable.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Services and the transmission of applicable data, if any, may be subject to export controls and economic sanctions laws of the United States or other jurisdictions. No Software may be downloaded from the Services or otherwise exported or re-exported in violation of such export control and economic sanctions laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Services, including as it concerns online conduct and acceptable content.
Apple-Enabled Software Applications
ViewSpark offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
ViewSpark and you acknowledge that these Terms of Service are concluded between
ViewSpark and you only, and not with Apple, and that as between ViewSpark and
Apple, ViewSpark, not Apple, is solely responsible for the Apple-Enabled Software
and the content thereof.
7040 Avenida Encinas #104
Carlsbad, CA 92011
ViewSpark and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, 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 against you with respect to the Apple-Enabled Software as a third-party beneficiary thereof. Accordingly, the parties acknowledge and agree that ViewSpark enters into this clause (“Apple- Enabled Software Applications”) for its own benefit and on its own behalf and also as an agent for the benefit and on behalf of Apple and its subsidiaries with respect to the exercise and enforcement of all rights, benefits and remedies of Apple and its subsidiaries (but not any obligation or burden) in this clause (“Apple-Enabled Software Applications”) which rights, benefits and remedies shall be enforceable by ViewSpark in its own right and also as agent for and on behalf of each of Apple and its subsidiaries. ViewSpark may amend, terminate or rescind these Terms of Service without the consent of Apple or any such subsidiary.
3. Intellectual Property Rights Services Content, Software and Trademarks: You acknowledge and agree that the Services may contain content or features (“Services Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by ViewSpark, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Services Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Services. In connection with your use of the Services you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by ViewSpark from accessing the Services (including by blocking your IP address), you
agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Services or the Services Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Services or distributed in connection therewith are the property of ViewSpark, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by ViewSpark.
The ViewSpark name and logos are trademarks and service marks of ViewSpark (collectively the “ViewSpark Trademarks”). Other company, product, and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners, who may or may not endorse or be affiliated with or connected to ViewSpark. Nothing in these Terms of Service or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of ViewSpark Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of ViewSpark Trademarks will inure to our exclusive benefit.
Third-Party Material: Under no circumstances will ViewSpark be liable in any way for any content or materials of any third parties (including users and Charitable Organization Representatives), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that ViewSpark does not pre-screen content, but that ViewSpark and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Services. Without limiting the foregoing, ViewSpark and its designees will have the right to remove any content that violates these Terms of Service or is deemed by ViewSpark, in its sole discretion, to be otherwise objectionable.
User Content Transmitted Through the Services: With respect to the content, photos, videos, images, trademarks, logos, brands or other materials you upload or post through the Services or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to, or otherwise have all necessary rights and consents to (and to allow others to) fully exploit, such User Content, including, without limitation, as it concerns all copyrights, trademark rights and rights of publicity or privacy related thereto. By uploading any User Content you hereby grant and will grant ViewSpark and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Services or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed. Without limiting the foregoing, if any User Content contains your name, image or likeness, you hereby release and hold harmless ViewSpark and its contractors and employees, from (i) all claims for invasion of privacy, publicity or libel, (ii) any liability or other claims by virtue of any blurring, distortion, alteration, optical illusion, or other use or exploitation of your name, image or likeness, and (iii) any liability for claims made by you (or any successor to any claim you might bring) in connection with your User Content, name, image or likeness. You waive any right to inspect or approve any intermediary version(s) or finished version(s) of the results of the use of your User Content (including your name, image or likeness). Further, if any person (other than you) appears in your User Content, you represent and warrant that you have secured all necessary licenses, waivers and releases from such person(s) for the benefit of ViewSpark in a manner fully consistent with the licenses, waivers and releases set forth above. You further acknowledge that your participation in the Services and submission of User Content is voluntary and that you will not receive financial compensation of any type associated with the licenses, waivers, and releases set forth herein (or ViewSpark’s exploitation thereof), and that the sole consideration for the subject matter of this agreement is the opportunity to use the Services.
You acknowledge and agree that ViewSpark may preserve content and may also disclose content if required to do so by law or in the good-faith belief that such preservation or disclosure is reasonably necessary to (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of ViewSpark, its users or the public.
Copyright Complaints: ViewSpark respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify ViewSpark of your infringement claim in accordance with the procedure set forth below. ViewSpark will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to ViewSpark’s Copyright Agent at firstname.lastname@example.org (Subject line: “DMCA Takedown Request”). You may also contact us by mail at:
Attn: Copyright Agent
7040 Avenida Encinas #104, Carlsbad, CA 92011
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the above-listed Copyright Agent:
If a counter-notice is received by the Copyright Agent, ViewSpark will send a copy of the counter-notice to the original complaining party, informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, ViewSpark has adopted a policy of terminating, in appropriate circumstances and at ViewSpark’s sole discretion, users who are deemed to be repeat infringers. ViewSpark may also at its sole discretion limit access to the Services and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
4. Third Party Websites/Services
The Services may provide or facilitate, or third parties may provide, links or other access to other sites, services and resources on the Internet. ViewSpark has no control over such sites, services and resources and ViewSpark is not responsible for and does not endorse such sites, services and resources. You further acknowledge and agree that ViewSpark will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site, service or resource. Any dealings you have with third parties found while using the Services are between you and the third party, and you agree that ViewSpark is not liable for any loss or claim that you may have against any such third party.
5. Indemnity and Release
You agree to release, indemnify on demand and hold ViewSpark and its affiliates and their officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, costs, awards, fines, damages, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Services, any Donation or Campaign, any User Content, your connection to the Services, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “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.” If you are a resident of another jurisdiction—in or outside of the United States—you waive any comparable statute or doctrine.
6. Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. VIEWSPARK AND ITS AFFILIATES EXPRESSLY DISCLAIM AND EXCLUDE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. VIEWSPARK AND ITS AFFILIATES MAKE NO WARRANTY OR CONDITION THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
7. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER VIEWSPARK NOR ITS AFFILIATES WILL BE LIABLE FOR ANY (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, (B) DAMAGES FOR LOSS OF PROFITS, (C) DAMAGES FOR LOSS OF GOODWILL, (D) DAMAGES FOR LOSS OF USE, (E) LOSS OR CORRUPTION OF DATA, OR (F) OTHER INTANGIBLE LOSSES (EVEN IF VIEWSPARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL VIEWSPARK’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES (INCLUDING CONTRACT, NEGLIGENCE, STATUTORY LIABILITY OR OTHERWISE) OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID VIEWSPARK IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
Dispute Resolution by Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Most user concerns can be resolved quickly and to the user’s satisfaction by emailing ViewSpark support at email@example.com. In the unlikely event that our user support team is unable to resolve a complaint you may have (or if ViewSpark has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or mediation. Arbitration, which is often cheaper, faster and less formal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury. Arbitrators can award the same damages and relief that a court can award. The payment of attorneys’ fees will be governed by JAMS (as defined below) rules or the rules of the local governing arbitration body in the case JAMS rules are not available. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.
8. Arbitration Agreement
ViewSpark and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
References to “ViewSpark”, “we”, “you”, and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior agreements between us. You agree that, by entering into these Terms of Service, you and ViewSpark are each waiving the right to a trial by jury or to participate in a class action. If residing in the United States, these Terms of Service evidence a transaction in interstate commerce, and thus the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of these Terms of Service. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to ViewSpark should be sent to 7040 Avenida Encinas #104, Carlsbad, CA 92011, Attn: Jeff Kliewer, with a copy by email to firstname.lastname@example.org (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If ViewSpark and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or ViewSpark may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by ViewSpark or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or ViewSpark is entitled.
The arbitration will be governed by the Rules of the Judicial Arbitration and Mediation Service (“JAMS”) currently in effect, as modified by these Terms of Service. The arbitrator is bound by the terms of these Terms of Service. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of the arbitration provision. Unless ViewSpark and you agree otherwise, any arbitration hearings will take place in San Diego County. 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 award is based. Qualified retired judges with at least five (5) years arbitration experience shall be selected through panels maintained by JAMS, any court in San Diego County or any private organization providing such services. If the parties are unable to mutually agree upon a retired judge to hear their arbitration, the arbitration service shall provide a list of three (3) available judges and each party may strike one (1). The remaining judge will serve as the arbitrator.
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and 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. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND VIEWSPARK 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 ViewSpark agree otherwise in writing, 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. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. Notwithstanding any provision in these Terms of Service to the contrary, we agree that if ViewSpark makes any future change to this arbitration provision (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision. The provisions of this arbitration agreement shall only be in effect to the extent they are permitted under applicable laws. If the JAMS Rules cannot be applied to an arbitration under applicable law, then the rules of the local governing arbitration body shall apply instead.
You agree that ViewSpark, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Services and remove and discard any content within the Services under reasonable circumstances, including, without limitation, for lack of use or if ViewSpark believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Services, may be referred to appropriate law enforcement authorities. You agree that any termination of your access to the Services under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that ViewSpark may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services where such deactivation or deletion is permitted under these Terms of Service. Further, you agree that ViewSpark will not be liable to you or any third party for any termination of your access to the Services.
10. User Disputes
You agree that you are solely responsible for your interactions with any other user in connection with the Services and ViewSpark will have no liability or responsibility with respect thereto. ViewSpark reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Services.
These Terms of Service, along with any service agreement between you and ViewSpark, constitute the entire agreement between you and ViewSpark and govern your use of the Services, superseding any prior agreements between you and ViewSpark with respect to the Services. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and ViewSpark agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Diego County, California. The failure of ViewSpark to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be (or are otherwise) invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of ViewSpark, but ViewSpark may assign or transfer these Terms of Service, in whole or in part, without restriction. If we fail to enforce any of our rights, that does not result in a waiver of that right. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Services may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Platform.
Please contact us at email@example.com to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Services.
Date of Last Revision: Feb, 2019