TERMS OF SERVICE
Last Updated: 08th June 2022
Welcome to Sparkinity! Sparkinity is an online business to business curated wholesale marketplace connecting Brands with Retailers through its websites (collectively the “Site”)and mobile applications (collectively, the “Application”) (together, the “Services”). Throughout these Terms of Service (“Terms”), the terms "Sparkinity”, “our”, “us”, and/or “we” refer to Sparkinity Limited. The terms “you” and/or “your” refer to any visitor of the Site and any user of the Services. These Terms govern your access to and use of the Service, any application or functionality that Sparkinity makes available through the Services and Collective Content (defined below), and constitute a binding legal agreement between you and Sparkinity.
YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING OR USING THE SERVICES (INCLUDING BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ONTO THE SERVICES), YOU AGREE TO BE BOUND BY THESE TERMS AND ALL OTHER TERMS AND POLICIES REFERENCED IN THESE TERMS. THIS APPLIES WHETHER OR NOT YOU HAVE REGISTERED ON OR THROUGH THE SERVICES. IF YOU DO NOT AGREE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES OR COLLECTIVE CONTENT.
These Terms include a jury trial and class action waiver. These Terms also limit the remedies that may be available to you in the event of a dispute with us.
To prevent any breach of the Terms hereof and to enforce any available remedy, we reserve the right to undertake any technical, legal or administrative measures that we deem necessary, at any time, without prior notice and in our sole discretion.
By registering for the Services, you agree to and accept these Terms.
You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. We reserve the right to temporarily suspend or permanently terminate your User Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password and you agree that you will not disclose it to any third party. You agree that you are solely responsible for any activities or actions under your User Account, whether you authorised them or not. You will immediately notify us of any unauthorised use of your User Account. We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
1. INFORMATION ABOUT SPARKINITY AND YOUR RELATIONSHIP WITH SPARKINITY
1.1 The Services are provided by Sparkinity Limited, a company incorporated and registered in England and Wales under company number 10958055, whose registered office address is 71-75 Shelton Street, Covent Garden, London, England, WC2H 9JQ ("Sparkinity").
1.2 You acknowledge that the Products identified on the Services are not owned, marketed, or sold by Sparkinity, but by Brands who have each entered into an agreement with Sparkinity to use the Services to promote, market and sell their Products.
1.3 If you are a Retailer, when you purchase any Products using the Services, you enter into an agreement with the Brand to buy the Products. If you are a Brand, when you sell any Products using the Services, you enter into an agreement with the Retailer to sell your Products. Sparkinity is not a party to any agreement for the sale or purchase of Products.
1.4 References to "writing" in these Terms includes e-mail.
2.1 In these Terms, save where the context requires otherwise, the following words and expressions have the following meaning:
"Additional Services" means any ancillary services (if any) provided by Sparkinity to the Users in relation to the Services, as agreed by the parties in writing from time to time;
"Additional Service Fees" means the fees relating to the provision of any Additional Services, as agreed in writing by the parties from time to time;
"Agreement" means the agreement between the User and Sparkinity, comprising these Terms, any commercial terms agreed between the parties in writing, and the On-Boarding Documents for the provision of the Services;
“Application” means the process for applying for a User Account. The type of information you are required to provide will depend upon whether you are a Brand or Retailer.
"Authorised User" means a person employed by the User who is authorised by a User to access and use the Services on behalf of that User;
"Brand" means a person or entity that markets and sells Products through the Services;
"Collective" means Sparkinity Content and Member Content;
"Commencement Date" means the date from which the User will have access to the Services, as agreed by the parties in writing or when the User registers (whether electronically or otherwise) to use the Services;
"Confidential Information" means information which is identified as confidential or proprietary by either party, or by the nature of which is clearly confidential or proprietary;
"Content" means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials;
"Data Processing Agreement" or "DPA" has the meaning given to it in clause 10.1;
"Data Protection Laws" means the EU General Data Protection Regulation 2016/679 ("GDPR"), any applicable national implementing legislation including the UK Data Protection Act 2018, and the UK GDPR (as defined in the UK Data Protection Act 2018) (the "UK GDPR"); and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; in each case as amended, replaced or superseded from time to time, and all other applicable data protection and privacy legislation (including the privacy of electronic communications) in force from time to time in the UK;
"Delivery" means the transfer of physical possession of Product(s) by a Brand to a Retailer; and "Deliver" shall be construed accordingly;
"Fees" means the Commission and any Additional Service Fees;
"Member" means a business that completes Sparkinity’s account registration process; as described in the Introduction section above;
“Member Content” means Content that a Member posts, uploads, publishes, submits or transmits to Sparkinity to be made available through the Services;
"On-Boarding Documents" means the documents provided by Sparkinity to the Users for completion as part of the on-boarding process and in the case of Brands any other documents required by Sparkinity to provide the Set-up Services;
"Products" means a Brand's goods and products that the Brand makes available for purchase by Retailers through the Services;
“Proceeds” means the payment received through the Services from a Retailer for the purchase of Products;
"Retailer" means a person or entity that purchases Products through the Services;
"Commission" means the fee payable by the Brand to Sparkinity in consideration for the provision of the Services, as agreed by the parties in writing from time to time;
"Set-up Services" means the services performed by Sparkinity to on-board the Brands, as set out in Schedule 1;
"Site" means the website located at https://www.sparkinity.com (or such other website used by Sparkinity from time to time) through which the User can access the Services;
"Sparkinity Content" means Content that Sparkinity makes available through the Services; including any Content licensed from a third party, but excluding Member Content.
"Term" has the meaning given in clause 3;
"Terms" means these terms and conditions of service, as amended from time to time;
"Third Party Sites" has the meaning given in clause 5.9;
"User" means you, the Brand or Retailer (as applicable) that has entered into the Agreement with Sparkinity for the use of the Services;
"User Account" means an account set up by the User with an ID and password to access the Services;
"User Data" means the content and data that the User or any Authorised Users make available to Sparkinity and that is hosted by Sparkinity in connection with the provision of the Services;
"VAT" means value added tax (and any equivalent tax payable in any jurisdiction); and
"Virus" means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware, or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including works, Trojan horses, viruses and other similar things or devices.
3. COMMENCEMENT AND DURATION
The Agreement will commence on the Commencement Date and will continue subject to earlier termination in accordance with the Agreement (the "Term").
4.1 The User shall promptly provide to Sparkinity the completed On-Boarding Documents in order to enable Sparkinity to set-up a User Account and in the case of Brands to provide the Set-up Services.
4.2 The On-Boarding Documents form part of the Agreement, and are hereby incorporated into the Agreement by reference.
5. ACCESS TO THE SERVICES
5.1 User account types
There are two types of User Accounts through which you can access the Services and each account type gives access to different aspects of the Services.
1. Brand Account: this gives access to the Services to promote and to market and sell the Products as a Brand to Retailers. You must submit an application, provide completed on-boarding documents, and be approved by Sparkinity. Your use of the Services as a Brand is subject to the Brand Terms of Service reference above. You agree to not create multiple, related, affiliated or false accounts on the Services.
Retailer Account: To browse and purchase Products through the Services as a Retailer you will need to establish a free Retailer Account. You agree to not create multiple, affiliated, related or false accounts on the Services. Your use of the Services as a Retailer is subject to the Retailer Terms of Service referenced above. You acknowledge and agree that by submitting your application to become a Retailer, you authorise Sparkinity and its designated agents to access your personal and business credit history, including obtaining a consumer credit report, for the purpose of evaluating your eligibility for a line of credit with Sparkinity. You further understand that credit inquiries may impact your credit score.
By submitting payment details in conjunction with registering for a Retailer Account and/or purchasing Products, you agree to pay for the Products purchased and any applicable taxes and other fees that may accrue, and authorise us to charge the payment method with the information you have supplied to us, and/or to credit such payment method to make any adjustments if necessary. We reserve the right to correct any errors in pricing. We, and the Brand, have the right to refuse any order.
5.2 Sparkinity grants the User: (a) a non-exclusive, non-transferable, revokable, limited personal licence during the Term, without the right to grant sub-licences, to access and use, and permit Authorised Users to access and use, the Services as mentioned above and in each case, in accordance with and subject to the terms and conditions of the Agreement; and (b) a limited non-exclusive, revocable, non-transferable license to download and install a copy of the Application on your device solely in connection with your use of the Services.
5.3 Where agreed by the parties in writing, Sparkinity will provide the Additional Services to the User.
5.4 The User will ensure that all Authorised Users are made aware of the terms of the Agreement and act in compliance with them.
5.5 The User must treat any username and password used to access the Services or a User Account as Confidential Information, and must take appropriate safeguards in accordance with good industry practice to prevent unauthorised access to the Services. The User is responsible for any activities that occur under its User Account, including the activities of Authorised Users whether you authorised activities or not. We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
The User must prevent any unauthorised access to, or use of, the Services, and must promptly notify Sparkinity in the event of any such unauthorised access or use. If the User has any concerns about the login details for the User Account, or thinks it may have been misused, the User shall notify Sparkinity at
firstname.lastname@example.org . The User must immediately notify Sparkinity if the User becomes aware that the login details of any Authorised User are lost, stolen, or otherwise compromised.
5.7 The User is responsible for making all arrangements necessary for Authorised Users to gain access to the Services.
5.8 The User shall indemnify and defend Sparkinity, and its agents and contractors, from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer's fees) arising out of a claim brought by an Authorised User or any other third party (including any other Brand or any Retailer) relating to the User's use of the Services, including any claim arising from or in relation to any breach of the Retailer Terms if the User is a Retailer and of the Brand Terms if the User is a Brand (except to the extent caused by Sparkinity's negligence).
5.9 The Services may contain links to, or call the servers of, third party websites, data or services that are not under Sparkinity's control ("Third Party Sites"). As such, Sparkinity is not responsible for, and makes no express or implied warranties with regard to, the information, content or other material, products, or services that are contained on or are accessible through, or the policies regarding use and privacy in respect of, Third Party Sites. Links to such websites or resources do not imply any endorsement by Sparkinity of such websites or resources or the content, products or services available from such websites or resources. Access to and use of Third Party Sites, including information, content, material, products, and services on such websites or available through such websites, is solely at the User's risk. Also, Apple Inc. (“Apple”) and Google, Inc. will be a third party beneficiary to these Terms if you access the Services using applications developed for Apple iOS or Android, respectively. These third party beneficiaries are not parties to these Terms and are not responsible for the provision or support of the Services in any manner. Your access to the Services using these applications or devices is subject to terms set forth in their respective terms of service and privacy policies.
6. LICENCE GRANTED BY MEMBER
In order to get the most out of the Services, Members can provide or otherwise make Member Content available to us for use in connection with the Services. For these purposes, you hereby grant to Sparkinity a worldwide, perpetual, non-exclusive, transferable, sublicensable, royalty-free licence to use, view, copy, adapt, modify, distribute, publicly display and publicly perform (through any means necessary) such Member Content on, through or by means of the Services and/or any of Sparkinity’s advertising, marketing, publicity or other initiatives or events. Sparkinity does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any Member Content.
You acknowledge and agree that you are solely responsible for any and all Member Content that you make available through the Services. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all such Member Content or you have all rights, licenses, consents and releases necessary to grant to Sparkinity the rights in such Member Content as contemplated under these Terms; and (b) neither the Member Content or any portion thereof nor your posting, uploading, publication, submission or transmittal of the Member Content or Sparkinity’s use of the Member Content (or any portion thereof) on, through or by means of the Services and/or third party platforms will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or contain libellous, misleading, or otherwise unlawful, abusive, harassing or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Services, or result in the violation of any applicable law or regulation. You agree that you will not use a false e-mail address, pretend to be someone other than yourself or otherwise mislead us or third parties as to the origin of any posts. You are solely responsible for any Member Content you make and its accuracy. Sparkinity takes no responsibility and assumes no liability for any Member Content posted by you or any third party, and you agree to indemnify Sparkinity per the terms of the Indemnification section herein.
7. CONTENT FROM SOCIAL MEDIA AND NETWORKING SITES
As a Brand, you may link your social media accounts to your Brand store (collectively, “Social Media Accounts”). You represent that you are entitled to grant Sparkinity access to, or otherwise make available, your Social Media Accounts and the content therein for the purposes described herein, without breach by you of any of the terms and conditions that govern your use of the applicable Social Media Account, and without obligating Sparkinity to pay any fees or making Sparkinity subject to any usage limitations imposed by such social media service providers. Depending on the Social Media Accounts you choose and subject to the privacy settings that you have set in such Social Media Accounts, personally identifiable information that you post to your Social Media Accounts will be available on and through your User Account on the Services.
Please note that if a Social Media Account or associated service becomes unavailable for any reason, then the Social Media Account Content that was available from such Social Media Account will no longer be available on and through the Services. You have the ability to unlink your User Account and your Social Media Accounts, at any time, by contacting Sparkinity. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SOCIAL MEDIA SERVICE PROVIDERS ASSOCIATED WITH YOUR SOCIAL MEDIA ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SOCIAL MEDIA SERVICE PROVIDERS. Sparkinity makes no effort to review any Social Media Account Content for any purpose, including for accuracy, legality or non-infringement and Sparkinity is not responsible for any Social Media Account Content. Sparkinity may, however, at any time and without prior notice, screen, remove, disable or block any Social Media Account Content that in Sparkinity’s sole judgement violates these Terms or is otherwise objectionable.
8. USER'S OBLIGATIONS
8.1 The User:
(a) must comply with all applicable laws and regulations with respect to its use of the Services and its activities under the Agreement;
(b) must obtain and maintain during the Term all necessary licenses, consents, and permissions necessary:
I if the User is a Brand, to promote, market and sell Products through the Services; and
II if the User is a Retailer, to purchase Products through the Services.
(c) must use the Services in accordance with the terms of the Agreement and shall be responsible for any acts and omissions in connection with the use of the Services by its Authorised Users;
(d) must ensure that the User ends any Authorised User's right to access and use the Services if the Authorised User ceases its employment with the User;
(e) must notify Sparkinity in writing if there are any changes to any of the User's contact details or to any information provided by the User, including:
I if the User is a Brand, information about the Brand and/or the Products; and
II any information provided by the User in the On-Boarding Documents;
(f) must ensure that its network and systems, including its internet browser and operating systems, comply with any relevant specifications provided by Sparkinity in writing (including e-mail) from time to time;
(g) is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Services; and
(h) must not do, or allow any Authorised Users or other persons to do, any of the following:
I access, store, distribute, or transmit any Virus through the Services;
II use the Services to access, store, distribute, or transmit any material that is unlawful, harmful, threatening, defamatory, inflammatory, violent, obscene, infringing, harassing, or racially or ethnically offensive;
III use the Services in a manner that is illegal or causes damage or injury to any person or property;
IV use any automated system, including without limitation "robots", "spiders", or "offline readers", to access the Services in a manner that sends more request messages to the Services than a human can reasonably produce in the same period of time by using a conventional online web browser;
V attempt to interfere with or compromise the integrity or security of the Services;
VI Attempt to access or search the Services or Collective Content or download Collective Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Sparkinity or other generally available third party web browsers;
VII attempt to probe, scan, or test the vulnerability of any Sparkinity’s system or network or breach any security or authentication measures;
VIII Use, embed, display, mirror or frame the Site or Application, or any individual element within the Services, Sparkinity’s name, any Sparkinity trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Sparkinity’s express written consent or as enabled by features made available by Sparkinity (e.g., widgets) (you may link to Sparkinity’s homepage, so long as you do not imply or suggest any form of association, approval or endorsement on our behalf without our express written consent but you may not link to the Site in a libellous, misleading or otherwise unlawful manner, or in any manner that violates these Terms);
IX Use the Services or Collective Content in any manner not permitted by these Terms;
X Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Collective Content to send altered, deceptive or false source-identifying information
XI Interfere with, or attempt to interfere with, the access of any user, host or network, including sending a virus, overloading, flooding, spamming or mail-bombing the Services;
XII Impersonate or misrepresent your affiliation with any person or entity;
XIII Violate any applicable law or regulation; or
XIV Encourage or enable any other third party to do any of the foregoing.
and Sparkinity reserves the right, without liability or prejudice to its other rights under the Agreement, to disable all or any User Accounts or access to all or any part of the Services by any Authorised User, for any breach of any provision of this clause 8.1(h).
8.2 Sparkinity may monitor the User's and Authorised Users' use of the Services to ensure the quality of, and improve, the Sparkinity Service, and verify the User's compliance with the Agreement.
8.3 Sparkinity will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Sparkinity may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Sparkinity has no obligation to monitor your, or that of an Authorised User, access to or use of the Services or Collective Content, or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Services, to ensure your compliance with these Terms, to investigate a complaint or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Sparkinity reserves the right, at any time and without prior notice, to remove or disable access to any Member Content or Collective Content that Sparkinity, in its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Services. Sparkinity reserves the right to cooperate fully with law enforcement, and to involve and share information with law enforcement, governmental agencies or other oversight bodies if Sparkinity suspects illegal activity may be taking place.
9. IMPORTANT NOTE ON INTELLECTUAL PROPERTY RIGHTS
9.1 The Services and Collective Content are each protected by copyright, trademark and other laws and treaties around the world. You acknowledge and agree that Services and Collective Content, excluding your specific Member Content, including all associated intellectual property rights are the exclusive property of Sparkinity, its licensors and/or other providers of such material. Sparkinity is the owner or licensee of all intellectual property rights in the Services. These works are protected by copyright and other laws and treaties around the world. All such rights are reserved. Except as expressly set out in the Agreement, Sparkinity does not grant to the User any rights to or licenses in respect of the Services.
9.2 The User will not, when using the Services:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means;
(b) attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Services;
(c) access all or any part of the Services in order to build a product or service which competes with the Services, or use or attempt to use the Services to directly compete with Sparkinity; or
(d) erase or remove any proprietary or intellectual property notice contained in the Services.
9.3 The User grants Sparkinity a licence to access, download and use the User Data for the purpose of:
(a) providing the Services to the User, including analysing the User Data in accordance with the functionalities of the Services;
(b) developing, testing, improving and altering the functionality of the Services, including sharing with third parties as necessary to enhance the Services; and
(c) producing anonymised or anonymised and aggregated statistical reports and research.
9.4 The User represents and warrants to Sparkinity that it has the necessary right, title, interest and consent, in each case as necessary to allow Sparkinity to use the User Data in accordance with the Agreement. The User shall maintain a backup of the User Data and Sparkinity shall not be responsible or liable for the deletion, correction, alteration, destruction, damage, loss, disclosure or failure to store any User Data.
9.5 Sparkinity may use the User's name, logo, and related trade marks, the User's images and other branding, and the copyright in any materials provided by the User to Sparkinity, in any of Sparkinity's publicity or marketing materials (whether in printed or electronic form) for the purpose of highlighting that the User uses the Services and alongside any testimonials that the User has agreed to give. The User grants Sparkinity such rights as are necessary to use its name, logo, related trade marks, images and other branding and testimonials for the purpose of this clause 9.5.
10. DATA PROTECTION
10.1 To the extent that Sparkinity processes any personal data on behalf of the User as a processor or subprocessor as a result of hosting the User Data or otherwise as a result of the User's use of the Services, it shall do so in accordance with the data processing addendum in Schedule 2 (the " DPA ").
10.2 For the purpose of this clause 10 the terms " controller ", " processor ", " data subject ", " personal data ", and " process " shall have the same meaning as set out in the GDPR.
11. CONFIDENTIAL INFORMATION
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction, or by any regulatory or administrative body.
11.2 All amounts and Fees stated or referred to in this Agreement:
11.3 If Sparkinity has not received payment in full within thirty (30) days of the date of the relevant Fees as required under clause 12.1, and without prejudice to any other rights and remedies available to Sparkinity:
11.4 If Sparkinity has not received payment in full within thirty (30) days of the date of the relevant Fees as required under clause 12.1, and without prejudice to any other rights and remedies available to Sparkinity:
11.5 If Sparkinity has not received payment in full within thirty (30) days of the date of the relevant Fees as required under clause 12.1, and without prejudice to any other rights and remedies available to Sparkinity:
12. FEES AND PAYMENT
12.1 The User will pay any Additional Fees within thirty (30) days of the date of the relevant invoice, to Sparkinity's bank account as notified by Sparkinity to the User in writing, or to such other account or through such other payment mechanism as agreed by the parties in writing.
12.2 All amounts and Fees stated or referred to in this Agreement:
(a) are payable in the local currency of the applicable User, or as otherwise agreed between the parties in writing; and
(b) are exclusive of VAT unless otherwise expressly stated, which shall be paid at the same time as payment of the relevant Fees.
12.3 If Sparkinity has not received payment in full within thirty (30) days of the date of the relevant Fees as required under clause 12.1, and without prejudice to any other rights and remedies available to Sparkinity:
(a) interest shall accrue each day on such due amounts at an annual rate equal to 3% over the then current base lending rate of Barclays Bank PLC at the due date for payment of the relevant invoice, commencing on the due date for payment and continuing until the relevant invoice has been paid in full, whether before or after judgement;
(b) the User shall reimburse Sparkinity for all reasonable costs and expenses (including reasonable lawyers' fees) incurred by Sparkinity in collecting any overdue amounts; and/or
(c) Sparkinity may, without liability to the User, suspend or temporarily disable all or part of the User's access to the Services and Sparkinity shall be under no obligation to provide any access to the Services while the relevant sum remains unpaid.
13. AVAILABILITY AND SUPPORT
13.1 Sparkinity will use commercially reasonable endeavours to make the Services available with an uptime rate of 98%, except for:
(a) planned or unscheduled maintenance for which Sparkinity may provide advanced notice where appropriate; and
(b) any downtime arising from third party services or products.
13.2 Sparkinity will use reasonable endeavours to provide a level of support and advice on the use of the Services that is appropriate to the nature of any issues requiring support or advice during normal working hours (UK).
13.3 The User shall provide all support reasonably required by Sparkinity to perform its obligations under this clause 13, including providing reasonably detailed descriptions of issues and updates on the performance of the Services.
14. SUSPENSION AND TERMINATION
14.1 Without prejudice to any other rights or remedies available to Sparkinity, if the User fails to pay any sum due to Sparkinity and such sum remains outstanding for a further thirty (30) days, Sparkinity may immediately terminate the Agreement on giving notice to the User, without liability for Sparkinity. The User shall remain liable for all amounts due hereunder.
14.2 Without prejudice to any other rights and remedies available to Sparkinity, Sparkinity may terminate the Agreement by notice with immediate effect, or such notice as Sparkinity may in its sole discretion elect to give, if the User: (a) infringes Sparkinity's intellectual property rights in the Services; (b) is in breach of clause 9.2 and/or clause 11; or (c) is in breach of any applicable law.
14.3 Without prejudice to any other rights and remedies available to Sparkinity, Sparkinity may immediately suspend or disable any User Account, and the User's or any Authorised User's right to access and use the Services without giving prior notice to the User if the User is (or Sparkinity reasonably suspects the User to be) in material or persistent breach of any of the terms of the Agreement, and for the purposes of this clause 14.3, the parties acknowledge that any breach of clause 9.2 and/or clause 11 will be a material breach of the Agreement.
14.4 Without prejudice to any other rights and remedies available to Sparkinity, Sparkinity reserves the right to revoke your access to and use of the Services and Collective Content at any time, with or without cause.
14.5 Without prejudice to any other rights and remedies available to it, either party may terminate the Agreement at any time with immediate effect on giving notice in writing to the other party, if that other party:
(a) is in material or persistent breach of any of the terms of the Agreement and either that breach is incapable of remedy, or, if capable of remedy, the other party fails to remedy the breach within thirty (30) days after receiving written notice requiring it to remedy the breach; or
(b) is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.
14.6 On termination of the Agreement for any reason:
(a) all rights and licenses granted under the Agreement shall immediately terminate and the User's right to access and use, and grant Authorised Users the right to access and use the Services will end; and
(b) each party shall return to the other party or (at the other party's request) destroy, and make no further use of, any Confidential Information (and all copies thereof) belonging to the other party (provided that each party may retain documents and materials containing Confidential Information to the extent required by law or any applicable governmental or regulatory authority).
14.7 Sparkinity shall permit the User to download any User Data from the Services for a period of fourteen (14) days after the expiry or termination of the Agreement. Sparkinity may thereafter:
(a) delete any User Data at any time;
(b) retain User Data upon expiry or termination of the Agreement in order to comply with applicable law, or as Sparkinity may deem necessary to prosecute or defend any legal claim (in which case Sparkinity may retain User Data for a reasonable period of time pending resolution of such obligation or issue),
in each case provided that Sparkinity may retain any anonymized data generated from User Data, and in each case subject to the DPA.
14.8 Termination of the Agreement for whatever reason shall not affect any rights or remedies of the parties that have accrued up to the date of termination.
14.9 Upon termination of the Agreement for whatever reason, the Brands and Retailers shall continue to fulfil all commitments entered into prior to the effective date of termination, including fulfilment of orders accepted by the Brand prior to the date of termination and any other rights and remedies available to Retailers in respect of Products ordered prior to the effective date of termination and the resolution of any on-going disputes or disputes relating to Products ordered prior to the effective date of termination.
14.10 Any provision of the Agreement that expressly or by implication is intended to come into force or continue in force on or after expiry or termination of the Agreement shall survive and continue in full force and effect.
15. LIMITED WARRANTY
15.1 Sparkinity undertakes to make the Services available as set out in clause 13.1, and the User's sole and exclusive remedy, and Sparkinity's sole liability, with respect to any failure by Sparkinity to provide the Services in accordance with clause 13.1 is for Sparkinity to use commercially reasonable efforts to repair the affected part of the Services so that it is available in accordance with clause 13.1.
15.2 Other than as set out in clause 15.1, the Services are provided on an "AS IS" basis and Sparkinity gives no representations, warranties, conditions or other terms of any kind in respect of the Services, whether express or implied, including (but not limited to) warranties of satisfactory quality, merchantability, fitness for a particular purpose, or non-infringement.
15.3 Except as expressly provided for in the Agreement:
(a) all representations, warranties, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement; and
(b) Sparkinity will not be responsible for any interruptions, delays, failures, or non-availability affecting the Services or the performance of the Services which are caused by third party services (including Third Party Sites), errors or bugs in third party software, hardware, or the Internet on which Sparkinity relies to provide the Services, or any changes to the Services made by or on behalf of the User, and the User acknowledges that Sparkinity does not control such third party services and that such errors and bugs are inherent in the use of such software, hardware and the Internet.
16. SPARKINITY'S LIABILITY
You acknowledge and agree that, to the maximum extent permitted by applicable law, the entire risk arising out of your access to and use of the services and collective content remains with you. Neither Sparkinity nor any other person or entity involved in creating, producing or delivering the site, services, application or collective content will be liable for any incidental or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these terms or from the use of or inability to use the services or collective content, or from any communications, interactions or meetings with other users of the services or other persons with whom you communicate or interact as a result of your use of the services whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Sparkinity has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
To the maximum extent permitted by applicable law, in no event will Sparkinity's total liability in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, arising under or in connection with the Agreement, or from the use of or inability to use the services or collective content exceed £100.
We reserve the right, at our sole discretion to modify, suspend, discontinue or terminate the Services or any content, feature or material we provide thereon, or to modify these Terms, at any time and without prior notice, and have no obligation to update any information thereon. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some or all parts of the Services to Users, including Members. Users agree that it is the Users responsibility to monitor changes to our Services. If we modify these Terms then every time the User uses the Services the User acknowledges that it is responsible for checking these Terms to ensure it understands the Terms that apply at any time. When we change these Terms in a material way, we will update the "last updated" date at the start of these Terms. By continuing to access or use the Services thereafter, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services.
Subject to the foregoing provisions of this clause 17, no variation of the Agreement (other than the Terms) shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
In the event of any conflict between the terms of the Terms, any commercial terms agreed by the parties in writing, and any On-Boarding Documents, the following order of precedence shall apply to the extent of the conflict: (i) the Terms; (ii) the commercial terms; and (ii) the On-Boarding Documents.
Applicable laws may require that some of the information or communications that Sparkinity sends to the User should be in writing. When using the Services, the User accepts that communication with Sparkinity will mainly be electronic. Sparkinity will contact the User by e-mail or provide the User with information by posting notices on the Services. For contractual purposes, the User agrees to this electronic means of communication and the User acknowledges that all contracts, notices, information and other communications that Sparkinity provides to the User electronically comply with any legal requirement that such communications be in writing.
All notices given by the User to Sparkinity must be submitted to email@example.com. Sparkinity may give notice to the User at either the e-mail or postal address the User provides to Sparkinity, or any other way that Sparkinity deems appropriate. Notice will be deemed received and properly served immediately when posted on the Services or 24 hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.
Transfer of any rights and obligations
The User may not transfer, assign, charge or otherwise deal in the Agreement, or any of the User's rights or obligations arising under the Agreement, without Sparkinity's prior written consent.
Events outside a party's control
Neither party shall be liable to the other party for any delay or non-performance of any of its obligations under the Agreement arising from any cause beyond its control including, without limitation, any of the following: telecommunications failure, Internet failure, act of God, act of a third party unless an approved sub-contractor of Sparkinity, governmental act, war, fire, flood, explosion, or civil commotion. Notwithstanding the foregoing, nothing in this clause shall excuse the User from any payment obligation under the Agreement.
Third party rights
Other than as expressly stated in the Agreement, a person who is not a party to the Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
If any provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions of the Agreement shall not be prejudiced.
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.
Governing law and jurisdiction
The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.
You agree that any dispute arising from or relating to these Terms will be heard solely by a court or tribunal of competent jurisdiction in or nearest to the city of London, United Kingdom. If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorney’s fees, court costs, and disbursements in doing so. You agree that the unsuccessful party in any dispute arising from or relating to these Terms will be responsible for the reimbursement of the successful party’s reasonable attorney’s fees, court costs, and disbursements.
20. WAIVER OF CLASS ACTION; NO INDIVIDUALISED RELIEF
You acknowledge and accept that claims brought against Sparkinity shall be only on an individual basis and not as a plaintiff or class member in any possible future class or representative action or similar proceeding. Unless otherwise agreed by you and Sparkinity, you may not adjoin or consolidate any claim with more than one person’s; and you may not otherwise supervise or take over any form of a class, representative or consolidated proceeding.
21. WAIVER OF JURY TRIAL
The parties herein waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes be resolved by a competent judge.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and agree that if you submit any Feedback to us (through any communication channel), you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
23. RELIANCE ON INFORMATION
The information presented on or through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Site or user of the Services, or by anyone who may be informed of any of its contents.
The Services include content provided by third parties, including materials provided by other users, Members, bloggers and third party licensors. All statements and opinions expressed in these materials, and all articles and responses to questions and other Content, other than the Content provided by Sparkinity, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Sparkinity. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
24. NOTICE REGARDING APPLE
This Section only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Sparkinity only, not with Apple, and Apple is not responsible for the Services or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (a) product liability claims; (b) any claim that the Services fail to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defence, settlement and discharge of any third party claim that the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Services. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms
25. INFORMATION WE COLLECT ABOUT YOU
Sparkinity will perform the following Set-up Services in order to set the Brand up on the Services:
1.1 For the first upload in order to set the Brand up on the Service: Sparkinity will upload the Brand's products and associated details, together with general information about the brand and any other information provided by the Brand to Sparkinity.
1.2 For any subsequent uploads: The Brand will be responsible for keeping products and its information updated to reflect changes in price or product portfolio. When changes are made by the Brand, Sparkinity will review to ensure the changes meet Sparkinity’s standards and Sparkinity will then release the uploaded updates onto the Services.
The Brand will at all times be responsible for any information and content that it uploads to the Services, or that it provides to Sparkinity for uploading to the Services.
DATA PROCESSING SCHEDULE
1.1 This DPA applies as set out in clause 8 of the Terms.
1.2 In the event of a conflict between any of the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail.
2.1 Unless otherwise set out below, each capitalised term in this DPA shall have the meaning set out in the Agreement and the following capitalised terms used in this DPA shall be defined as follows:
" DPA 2018 " means the UK Data Protection Act 2018;
" European Economic Area " or " EEA " means the Member States of the European Union together with Iceland, Norway, and Liechtenstein;
" ICO " means the UK Information Commissioner's Office;
" Security Incident " means any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any User Personal Data;
" Subprocessor " means any Processor engaged by Sparkinity who agrees to receive User Personal Data from Sparkinity; and
" User Personal Data " means any personal data contained in the User Data, including:
(a) User contact name, e-mail address, phone number, business address and location, company name and bank account details;
(b) Authorised User's name and e-mail address; and
(c) any other personal data that Sparkinity Processes on behalf of the User during the Term in connection with the User's use of and access to the Services.
2.2 The terms "personal data ", "Controller", "Processor", "Data Subject", "Process" and "Supervisory Authority" shall have the same meaning as set out in the DPA 2018.
3. Data Processing
3.1 Sparkinity will only Process User Personal Data in accordance with:
(a) the Agreement, to the extent necessary to provide the Services to the User; and
(b) the User's written instructions,
unless Processing is required by European Union, United Kingdom or Member State law to which Sparkinity is subject, in which case Sparkinity shall, to the extent permitted by applicable law, inform the User of that legal requirement before Processing that User Personal Data.
unless Processing is required by European Union, United Kingdom or Member State law to which Sparkinity is subject, in which case Sparkinity shall, to the extent permitted by applicable law, inform the User of that legal requirement before Processing that User Personal Data.
3.2 The Agreement (subject to any changes to the Services) and this DPA shall be the User's complete and final instructions to Sparkinity in relation to the Processing of User Personal Data.
3.3 Processing outside the scope of this DPA or the Agreement will require prior written agreement between the User and Sparkinity on additional instructions for Processing.
3.4 The User shall provide all applicable notices to Data Subjects required under applicable Data Protection Laws for the lawful Processing of User Personal Data by Sparkinity in accordance with the Agreement.
3.5 The User will obtain any consents required under applicable Data Protection Laws for the lawful Processing of User Personal Data by Sparkinity in accordance with the Agreement.
4.1 The User agrees that Sparkinity may use Subprocessors including, but not limited to, those set out in Annex 2 of this DPA to Process User Personal Data, provided it enters into a written agreement with the Subprocessor which imposes the same obligations on the Subprocessor with regard to their Processing of User Personal Data as are imposed on Sparkinity under this DPA.
4.2 Sparkinity shall provide the User with fifteen (15) days' notice of any proposed changes to the Subprocessors it uses to Process User Personal Data (including any addition or replacement of any Subprocessors). If the User (acting reasonably) does not approve of a new Subprocessor, then without prejudice to any right to terminate the Agreement, the User may request that Sparkinity moves the User Personal Data to another Subprocessor and Sparkinity shall, within a reasonable time following receipt of such request, use all reasonable endeavours to ensure that the Subprocessor does not Process any of the User Personal Data.
4.3 Sparkinity shall at all times remain responsible for compliance with its obligations under the DPA and will be liable to the User for the acts and omissions of any Subprocessor as if it were the acts and omissions of Sparkinity.
5. International Transfers
5.1 Sparkinity shall not transfer the User Personal Data to a recipient in a country or territory outside the UK or EEA unless:
(a) the recipient, or the country or territory in which it Processes or accesses the User Personal Data, ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the Processing of User Personal Data as set out in the DPA 2018 or regulations made by the UK Secretary of State under the DPA 2018; or
(b) the transfer is based on:
(I) the Standard Contractual Clauses (processors) approved by European Commission Decision C(2010)593;
(II) the appropriate module of the Standard Contractual Clauses annexed to the Commission Implementing Decision C/2021/3972,
(c) the transfer is:
(I) based on any other transfer mechanism approved by the ICO; or
(II) otherwise lawful under the GDPR.
6. Data Security, Audits and Security Notifications
6.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Sparkinity shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including the measures set out in Annex 1 and (as appropriate) any other measures required by applicable Data Protection Laws.
6.2 The User may, upon reasonable notice and at reasonable times, audit (either by itself or using independent third party auditors) Sparkinity's compliance with the security measures set out in this DPA (including the technical and organisational measures as set out in Annex 1), including by conducting audits of Sparkinity's data processing facilities. Sparkinity shall assist with, and contribute to any audits conducted in accordance with this paragraph 6.2, provided that such audits are not carried out more than once a year.
6.3 Upon the User's request and at the User's expense, Sparkinity shall make available all information reasonably necessary to demonstrate compliance with this DPA.
6.4 Where required under applicable Data Protection Laws, Sparkinity shall immediately notify the User in the event that Sparkinity believes the User's instructions conflict with the requirements of applicable Data Protection Laws.
6.5 If Sparkinity or any Subprocessor becomes aware of a Security Incident, Sparkinity will (a) notify the User of the Security Incident promptly, (b) investigate the Security Incident and provide such reasonable assistance to the User (and any law enforcement or regulatory official) as required to investigate the Security Incident, and (c) take steps to remedy any non-compliance with this DPA.
6.6 Sparkinity shall treat the User Personal Data as the User's Confidential Information, and shall ensure that any employees or other personnel that have access to the User Personal Data have agreed in writing to protect the confidentiality and security of the User Personal Data and do not Process such User Personal Data other than in accordance with this DPA.
7. Access Requests and Data Subject Rights
7.1 Save as required (or where prohibited) under applicable law, Sparkinity shall notify the User of any request received by Sparkinity from a Data Subject, whether directly or through a Subprocessor, in respect of their personal data included in the User Personal Data, and shall not respond to the Data Subject.
7.2 Sparkinity shall provide the User with the ability to correct, delete, block, access or copy the User Personal Data in accordance with the functionality of the Services.
7.3 Sparkinity shall notify the User of any request for the disclosure of User Personal Data by a governmental or regulatory body or law enforcement authority (including any data protection supervisory authority) unless otherwise prohibited by law or a legally binding order of such body or agency.
8.1 Where applicable, taking into account the nature of the Processing, and to the extent required under applicable Data Protection Laws, Sparkinity shall:
(a) use all reasonable endeavours to assist User by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the User’s obligation to respond to requests for exercising Data Subject rights laid down in the GDPR; and
(b) provide reasonable assistance to the User with any data protection impact assessments and with any prior consultations to any Supervisory Authority of the User, in each case solely in relation to Processing of User Personal Data and taking into account the information available to Sparkinity.
9. Duration and Termination
9.1 Subject to paragraphs (a) and (b) below, Sparkinity shall, within thirty (30) days of the date of termination of the Agreement:
(a) if requested to do so by the User, return a complete copy of all User Personal Data by secure file transfer in such a format as notified by User to Sparkinity; and
(b) delete and use all reasonable efforts to procure the deletion of all other copies of User Personal Data Processed by Sparkinity or any Subprocessors.
9.2 Sparkinity and its Subprocessors may retain User Personal Data to the extent required by applicable law, or as Sparkinity may deem necessary to prosecute or defend any legal claim, provided that such User Personal Data is retained only to the extent and for such period as required by applicable laws or pending resolution of any issue, and always provided that Sparkinity shall ensure the confidentiality of all such User Personal Data.
TECHNICAL AND ORGANISATIONAL SECURITY MEASURES
1. Sparkinity maintains internal policies and procedures, or procures that its Subprocessors do so, which are designed to:
(a) secure any personal data processed by Sparkinity against accidental or unlawful loss, access or disclosure;
(b) identify reasonably foreseeable and internal risks to security and unauthorised access to the personal data processed by Sparkinity; and
(c) minimise security risks, including through risk assessment and regular testing as reasonably required.
2. Sparkinity will, and will use reasonable efforts to procure that its Subprocessors conduct periodic reviews of the security of their network and the adequacy of their information security program as measured against industry security standards and its policies and procedures.
3. Sparkinity will, and will use reasonable efforts to procure that its Subprocessors periodically evaluate the security of their network and associated services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
List of approved Subprocessors:
|Nr||Name of approved Subprocessor||Locatior||Processing Activitr|
|1.||AWS||UK||Cloud infrastructure for the Services (data hosting)|
|2.||Stripe||UK||Processing payment for the Services|