SPARKL TERMS OF SERVICE
May 1, 2016
IT IS IMPORTANT YOU READ THIS AGREEMENT AND YOU UNDERSTAND EACH PROVISION.
You may use the Services only if you can form a binding contract with Sparkl, and only in compliance with this Agreement and all applicable local, state, national, and other applicable laws, rules and regulations. Any use or access to the Services by anyone under 16 is strictly prohibited and in violation of this Agreement. The Services are not available to any Users previously removed from the Services by Sparkl.
2. CAR WASH SERVICES
Sparkl's obligations: As part of our Services, you may order, and Sparkl's representatives may provide, car wash services for your vehicle. Sparkl uses reasonable efforts to ensure that the car wash will be provided in a timely, professional and satisfactory manner. You understand and agree, however, that Sparkl does not guarantee that your car wash will be performed to your satisfaction, that it will meet your needs, or that it will meet any applicable industry or professional standards. You hereby acknowledge and agree that Sparkl's total liability to you for any actual or alleged damages arising out of or related to this Agreement (including, without limitation, damages to your vehicle resulting from the Services) will be as is set forth in the Limitation of Liability section below. Your obligations: If you choose to make a reservation for Services, then you must: (1) verify the location of your vehicle before submitting a car wash reservation; (2) ensure that the Services are available in your location; (3) leave your vehicle in a public location where a Sparkl representative is authorized to enter and perform the car wash; and (4) ensure that there is at least a walkable perimeter around all sides of your car to allow Sparkl representatives to perform the Services. You understand that it is your responsibility to remove all valuables from your vehicle before our representative arrives to wash your car. You also understand that you should exercise reasonable judgment in locking your car doors before leaving your vehicle unattended in a public location. Failure to adhere to your obligations hereunder may result in our inability to provide you with a car wash. In no event will Sparkl be liable to you or any third party for any alleged or actual damages or losses resulting directly or indirectly from your failure to adhere to your obligations under this Agreement. For more information about our car wash Services, please review our www.sparklnow.com website.
3. SPARKL ONLINE ACCOUNTS
4. ONLINE AND MOBILE SERVICE RULES
Acceptable use of the online and mobile Services. You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the Sparkl servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Sparkl grants the operators of public search engines revocable permission to use spiders to copy materials from Sparklnow.com and the mobile app for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; or (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein. Changes to the Services: We may, without prior notice, change the Services; stop providing the Services or features of the Services, to you or to users generally; or create usage limits for the Services. We may permanently or temporarily terminate or suspend your access to the Services without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
5. END USER LICENSE GRANT
1. Mobile, On Line
As outlined previously we hereby grant you a non-exclusive, limited, non-transferable, freely revocable license to use our online and mobile Services for your use only and as permitted by the features of the Services. Sparkl reserves all rights not expressly granted herein in the Services and the Sparkl Content (as defined below). Sparkl may terminate this license at any time for any reason.
Sparkl hereby grants you a non-exclusive, non-transferable, revocable license to use the Sparkl Software for one Sparkl account on one mobile device owned or leased solely by you. We expressly prohibit you from the following : (i) disable, damage or otherwise interfere with security-related features of the Sparkl Software, features that prevent or restrict use or copying of any content accessible through the Sparkl Software, or features that enforce limitations on use of the Sparkl Software; (ii) loan, resell, sublicense, distribute or otherwise transfer the Sparkl Software to any third party or use the Sparkl Software to provide time sharing or similar Services for any third party; (iii) make any copies of the Sparkl Software; (iv) modify, decompile or reverse engineer the Sparkl Software, except to the extent that such restriction is expressly prohibited by law; or (v) delete the copyright and other proprietary rights notices on the Sparkl Software. You acknowledge that Sparkl will from time to time issue upgraded versions of the Sparkl Software, and may automatically electronically upgrade the version of the Sparkl Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Sparkl Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Sparkl Software or any copy thereof, and Sparkl or its third party partners or suppliers retain all right, title, and interest in the Sparkl Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. The Sparkl Software originates in the United States, and is subject to United States export laws and regulations. The Sparkl Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Sparkl Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Sparkl Software and the Sparkl Services.
2. SPARKL SOFTWARE FROM ITUNES
The following applies to any Sparkl Software you acquire from the iTunes Store (“iTunes-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Sparkl, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Services. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support Services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Sparkl as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Sparkl as provider of the software. You acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party's intellectual property rights, Sparkl, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Sparkl acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the iTunes-Sourced Software against you as a third party beneficiary thereof.
3. Sparkl Content. Our online and mobile Services, and all materials therein or transferred thereby, including, without limitation, text, software, images, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, videos, and music (the “Sparkl Content”), and all intellectual property rights related thereto (“Intellectual Property Rights”), are the exclusive property of Sparkl.
6. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SPARKL, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES.
IN NO EVENT SHALL SPARKL, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNTS YOU PAID TO SPARKL IN THE LAST 12 MONTHS HEREUNDER OR $250.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF SPARKL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Services is controlled and operated from its locations in the United States. Sparkl makes no representations that the Services is appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations.
7. PAID SERVICES
1. BILLING POLICIES
If you elect to purchase the Services, you agree to pay the amount presented on the confirmation screen and as set forth on our How Sparkl Works page. Sparkl may add new Services for additional fees and charges, or amend fees and charges for existing Services, at any time in its sole discretion. Sparkl will bill your credit card once we receive notice from our representative that your car wash is complete.
2. CANCELLATION POLICY
You may cancel the Services upon two hours notice of the scheduled window of service time. You agree to incur the full price of the Services if you cancel a wash less than two hours before the scheduled window of service time. Notwithstanding the foregoing, you may cancel your car wash free of charge if your wait time is in excess of 60 minutes.
3. NO REFUNDS
Once a car wash is completed and your credit card has been charged, you will not be entitled to a refund for any reason.
4. PAYMENT INFORMATION; TAXES
You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Services at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
5. PRIVACY AND SECURITY
Sparkl cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
6. THIRD-PARTY LINKS
You agree to defend, indemnify and hold harmless Sparkl and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Services; (ii) any alleged or actual loss or damage to property (including your vehicle), resulting from the performance of the Services hereunder, (iii) your violation of any term of this Agreement, including without limitation your breach of any of the obligations, representations and warranties above; (iv) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (v) your violation of any applicable law, rule or regulation; and (vi) any other party's access and use of the Services with your unique username, password or other appropriate security code.
8. NO WARRANTY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SPARKL DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR THE SERVICES HEREUNDER, INCLUDING THE CAR WASH SERVICES PERFORMED BY SPARKL'S REPRESENTATIVES, OR ANY LOSSES OR DAMAGES THAT MAY RESULT THEREFROM. THE SERVICES, INCLUDING OUR CAR WASHES, ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE QUALITY, OR NON-INFRINGEMENT. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.
9. GOVERNING LAW AND ARBITRATION
1. GOVERNING LAW
You agree that: (i) the Services shall be deemed solely based in Illinois; and (ii) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over Sparkl, either specific or general, in jurisdictions other than Illinois. This Agreement shall be governed by the internal substantive laws of the State of Illinois, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of a state court located in Cook County, Illinois or the United States District Court for the Northern District of Illinois, for any actions for which we retain the right to seek injunctive or other equitable relief, as set forth in the Arbitration provision below.
For any dispute with Sparkl, you agree to first contact us at info@Sparklnow.com and attempt to resolve the dispute with us informally. In the unlikely event that Sparkl has not been able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any Sparkl claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. Unless you and Sparkl agree otherwise, the arbitration will be conducted in the Cook County, Illinois. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that party's data security, Intellectual Property Rights, or other proprietary rights. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND SPARKL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Sparkl without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
2. NOTIFICATION PROCEDURES AND CHANGES TO THE AGREEMENT
Sparkl may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Sparkl in our sole discretion. Sparkl reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Sparkl is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Sparkl may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified' date at the bottom of this page. Your continued use of the Services after any such change constitutes your acceptance of the new Terms of Services. If you do not agree to any of these terms or any future Terms of Services, do not use or access (or continue to access) the Services.
3. ENTIRE AGREEMENT/SEVERABILITY
This Agreement, together with any amendments and additional agreements you may enter into with Sparkl in connection with the Services, shall constitute the entire agreement between you and Sparkl concerning the Services.
It is the intent of the parties that the provisions of this Agreement shall be enforced to the fullest extent permitted by applicable law. To the extent that the terms set forth in this Agreement or any word, phrase, clause or sentence is found to be illegal or unenforceable for any reason, such word, phrase, clause or sentence shall be modified or deleted in such manner so as to afford the party for whose benefit it was intended the fullest benefit commensurate with making this Agreement, as modified, enforceable, and the balance of this Agreement shall not be affected thereby, the balance being construed as severable and independent.
4. NO WAIVER
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Sparkl's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us at email@example.com with any questions regarding this Agreement.