By using this website, you (“you” or the “End User”) agree to the terms and conditions that we (“we” or “SparCode”) have provided. If you do not wish to agree to these Terms of Use, Terms of Sale, and Terms of Services (“Agreement”), please refrain from using the SparCode site, microsites and store.
I. TERMS OF USE
Last updated March 7th, 2011
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General
This website provides an interactive online service operated by SparCode, Inc. (“SparCode”) on the World Wide Web of the Internet (the “Web”), consisting of information services, content and transaction capabilities facilitated through SparCode, members of SparCode (“SparCoders”) or publishers (“Publishers”) offering goods, products, vouchers or services (“Good(s)”). The SparCode website, including, without limitation any individual sites or SparCoder-specific, Publisher-spercific, category-specific, or territory-specific sites now or hereafter contained with or otherwise available through external hyperlinks with the website located at www.sparcode.com are collectively referred to herein as the “Site”. Capitalized terms not otherwise defined in these Terms of Use shall have the meanings ascribed to them in SparCode’s Terms of Sale, Terms of Service and Privacy Policy, respectively.
This Agreement sets forth the terms and conditions that apply to the use of this Site by the End User. By using this Site, End User agrees to comply with all of the terms and conditions hereof. The right to use this Site is personal to End User and is not transferable to any other person or entity. End User shall be responsible for protecting the confidentiality of End User’s password(s), if any. End User acknowledges that, although the Internet is often a secure environment, sometimes there are interruptions in service or events that are beyond the control of SparCode, and SparCode shall not be responsible for any data lost while transmitting information on the Internet. While it is SparCode’s objective is to make the Site accessible 24 hours per day, 7 days per week, the Site may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of the control of SparCode, access to the Site may be interrupted, suspended or terminated from time to time.
SparCode shall have the right at any time to change or discontinue any aspect or feature of the Site, including, but not limited to, content, hours of availability and equipment needed for access or use. Further, SparCode may discontinue disseminating any portion of information or category of information, may change or eliminate any transmission method and may change transmission speeds or other signal characteristics.
You represent that you are of legal age to form a binding contract. You must be at least 18 years old to be eligible to use the Site. However, if you are at least 13 years old but not yet 18, you may use the Site in conjunction with your parent or guardian who agrees to this Agreement. No one under age 13 may use the Site.
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Modified Terms.
SparCode reserves the right at all times to discontinue or modify any of our Terms of Use, Terms of Sale, Terms of Service and/or our Privacy Policy as we deem necessary or desirable. Such changes may include, among other things, the adding of certain fees or charges, or the elimination of certain privileges or opportunities. If SparCode makes any substantial changes, we will notify you by sending you an e-mail to the e-mail address that is registered with your account and/or by posting notice of the change on the Site. Any changes to these Terms of Use will be effective upon the earlier of our dispatch of an e-mail notice to you or our posting of notice of the changes on our Site, provided that these changes will not apply to Goods purchased prior to the effective date of such changes. These changes will be effective immediately for new users of our Site and any Goods purchased by such new users. We suggest to you, therefore, that you re-read this important notice containing our Terms of Use, Terms of Sale, Terms of Service and Privacy Policy from time to time in order that you stay informed as to any such changes. Any use of the Site by End User after such notice shall be deemed to constitute acceptance by End User of such modifications.
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Equipment.
End User shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of this Site and all charges related thereto. SparCode shall not be liable for any damages to the End User’s equipment resulting from the use of this Site.
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End User Conduct.
This SparCode Site (including any SparCode “Microsites”) are private property. All interactions on this Site and/or the Microsites must comply with this Agreement. Although we welcome and encourage user interaction on our Site, we do insist and require that all end users restrict any and all activity in connection with the use of this Site and the Microsites to that which involves lawful purposes only. End User shall not post or transmit through this Site any material which violates or infringes in any way upon the rights of others, or any material which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law. In addition, without SparCode’s express prior, written approval, End User shall not engage in any advertising or solicitation with respect to SparCode, Goods or Publishers, except by and through the specific tools and content (without omissions, additions, revisions, editing or other alteration) made available by SparCode. Any conduct by an End User that in SparCodes’s exclusive discretion restricts or inhibits any other End User from using or enjoying this Site and/or any of the Microsites is strictly prohibited. End User shall not use this Site or any of the Microsites to advertise or perform any religious, political or non-SparCode related solicitation, including, but not limited to, the solicitation of users of this Site and/or the Microsites to become users of other on- or offline services directly or indirectly competitive or potentially competitive with SparCode.
The foregoing provisions of this Section 4 apply equally to and are for the benefit of SparCode, its subsidiaries, affiliates, SparCoders, Publishers and its third-party content providers and licensors, and each shall have the right to assert and enforce such provisions directly or on its own behalf.
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Copyright and Trademarks.
Everything located on or in this Site, including the Microsites, is the exclusive property of SparCode, or used with express permission of the copyright and/or trademark owner. ANY COPYING, DISTRIBUTING, TRANSMITTING, POSTING, LINKING, DEEP LINKING, OR OTHERWISE MODIFYING OF THIS SITE OR ANY OF THE MICROSITES WITHOUT THE EXPRESS WRITTEN PERMISSION OF SPARCODE IS STRICTLY PROHIBITED. Any violation of this policy may result in a copyright, trademark or other intellectual property right infringement that may subject End User to civil and/or criminal penalties.
This Site and any Microsites contain copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Site are protected by copyright as a collective work under the United States and international copyright laws. SparCode owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. End User may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part. End User may download, print, and/or save copyrighted material for End User’s personal use only. Except as otherwise expressly stated under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material without the express permission of SparCode or the copyright owner is permitted. If copying, redistribution or publication of copyrighted material is permitted, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. End User acknowledges that he/she/it does not acquire any ownership rights by downloading copyrighted material. Trademarks that are located within or on the Site or a Microsite otherwise owned or operated in conjunction with SparCode shall not be deemed to be in the public domain but rather the exclusive property of SparCode, unless such site is under license from the trademark owner thereof, in which case such license is for the exclusive benefit and use of SparCode unless otherwise stated.
End User shall not upload, post or otherwise make available on this Site any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. SparCode does not have any express burden or responsibility to provide End User with indications, markings or anything else that may aid End User in determining whether the material in question is copyrighted or trademarked. End User shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such a submission. By submitting material to any public area of this Site or any Microsite, End User warrants that the owner of such material has expressly granted SparCode the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. End User also permits any other end user to access, view, store or reproduce the material for that End User’s personal use. End User hereby grants SparCode the right to edit, copy, publish and distribute any material made available on this Site or any Microsite by End User.
The foregoing provisions of Section 5 apply equally to and are for the benefit of SparCode, its subsidiaries, SparCoders, affiliates, Publishers and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.
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Copyright Policy.
SparCode reserves the right to terminate its agreement with any End User who repeatedly infringes third-party copyright rights upon prompt notification to SparCode by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that a copyrighted work has been copied and posted via the Site or any Microsite in a way that constitutes copyright infringement, you shall provide SparCode with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location on the Site or any Microsite of the copyrighted work that you claim has been infringed; (c) a written statement by you that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) your name and contact information, such as telephone number or e-mail address; (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (f) put the following in the subject line of your email: “Copyright Agent Notice”.
Contact information for SparCode’s Copyright Agent for notice of claims of copyright infringement is as follows:
SparCode, Inc.
Email:
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Disclaimer of Warranty.
END USER EXPRESSLY AGREES THAT USE OF THIS SITE AND THE MICROSITES IS AT END USER’S SOLE RISK. NONE OF SPARCODE, ITS SUBSIDIARIES, SPARCODERS OR AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, PUBLISHERS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WARRANT THAT USE OF THE SITE OR ANY MICROSITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO (I) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THIS SITE, OR ANY MICROSITE, OR (II) THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR GOODS PROVIDED THROUGH THIS SITE OR THE MICROSITES.
THIS SITE AND THE MICROSITES ARE MADE ACCESSIBLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. SPARCODE HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF TITLE NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
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Limitation of Liability.
IN NO EVENT SHALL SPARCODE, ITS SUBSIDIARIES, SPARCODERS OR AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. IN NO EVENT WILL THE LIABILITY OF SPARCODE, ITS SUBSIDIARIES, SPARCODERS AND AFFILIATES IN CONNECTION WITH A SPARCODE OFFER EXCEED THE AMOUNTS PAID FOR SUCH OFFER, AND TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY END USER DURING THE SIX MONTHS PRECEDING THE BRINGING OF ANY CLAIM.
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Monitoring.
SparCode shall have the right, but not the obligation, to monitor the content of the Site and any Microsites at all times, including any chat rooms, forums or extensions that may hereinafter be included as part of the Site or the Microsites, to determine compliance with this Agreement and any operating rules established by SparCode, as well as to satisfy any applicable law, regulation or authorized government request. Without limiting the foregoing, SparCode shall have the right, but not the obligation, to remove any material that SparCode, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
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Privacy.
End User acknowledges that all discussion for ratings, comments, bulletin board service, chat rooms and/or other message or communication facilities (individually a "Community" and collectively the “Communities”) are public and not private communications, and that, therefore, others may read End User’s communications without End User’s knowledge. SparCode does not control or endorse the content, messages or information found in any Community, and, therefore, SparCode specifically disclaims any liability concerning the Communities and any actions resulting from End Users’ participation in any Community, including any objectionable content. Generally, any communication which End User posts to, through or from SparCode (whether in chat rooms, discussion groups, message boards or otherwise) is considered to be non-confidential. If particular web pages permit the submission of communications that will be treated by SparCode as confidential, that fact will be stated on those pages. By posting comments, messages or other information on, through or from the Site or any Microsite, End User grants SparCode the right to use such comments, messages or information for promotions, advertising, market research or any other lawful purpose without territorial, time or other limitation. For more information see SparCode’s Privacy Policy.
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License Grant.
By posting communications on, through or from this Site or any Microsite, End User shall be deemed to have granted to SparCode a royalty-free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, publish, edit, translate, distribute, perform, and display the communication alone or as part of other works in any form, media, or technology whether now known or hereafter developed without territorial or time limitations, and to sublicense such rights through multiple tiers of sublicensees.
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Indemnification/Release.
End User agrees to defend, indemnify and hold harmless SparCode, its subsidiaries, SparCoders, affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of or related to any products or services purchased by End User in connection with the Site or any Microsites.
End User is solely responsible for interactions with Publishers, SparCoders and other users of the Site or Microsites. To the extent permitted under applicable laws, End User hereby releases SparCode from any and all claims or liability related to any Goods, or the product or service of a Publisher, any action or in-action by a Publisher or SparCoder, including any failure by a SparCoder or Publisher to comply with applicable law and/or failure to abide by the terms of any third party end user license agreement, and any conduct or speech, whether online or offline, of any other user.
In connection with the foregoing release, End User hereby waives California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “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.”
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Termination.
SparCode may terminate this Agreement at any time. Without limiting the foregoing, SparCode shall have the right to immediately terminate or suspend any passwords or accounts of End User in the event of any conduct by End User or which SparCode, in its sole discretion, considers to be unacceptable, or in the event of any breach by End User of this Agreement. The provisions of Sections 2, 4, 5, 6, 7, 8, 10, 11, and 12 will survive termination of this Agreement.”
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Trademarks.
SparCode is a trademark of SparCode, Inc. All rights in respect of this trademark are hereby expressly reserved. Unless otherwise indicated, all other trademarks appearing on, through or from this Site or Microsite are the property of their respective owners.
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Third-Party Content.
SparCode, similar to an Internet Service Provider, is a distributor (and not a publisher) of content supplied by third parties, including, without limitation, Publishers, SparCoders and End Users. Accordingly, SparCode has no more editorial control over such content than does a public library, bookstore or newsstand. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, or any other end users are those of the respective author(s) or distributor(s) and not of SparCode.
In many instances, the content available through this Site and the Microsites represents the opinions and judgments of the respective information provider, end user, or other user not under contract with or control by SparCode. SparCode neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, or statement made on, through or from this Site or the Microsites by anyone other than authorized SparCode employee spokespersons while acting in official capacities. Under no circumstances will SparCode be liable for any loss or damage caused by any end user’s reliance on information obtained on, through or from this Site or the Microsites. It is the responsibility of End User to evaluate the accuracy, completeness, or usefulness of any information, opinions, ratings, reviews, videos, advice, or other content available on, through or from this Site or the Microsites.
The Site and Microsites contain links to third-party websites, including, without limitation, those maintained by SparCoders and those maintained by other content providers. These links are provided solely as a convenience to you and not as an endorsement by SparCode of the contents on such third-party sites, and SparCode hereby expressly disclaims any representations regarding the content or accuracy of materials on such third-party websites. If End User decides to access linked third-party websites, End User does so at its own risk. Unless you have executed a written agreement with SparCode expressly authorizing you to do so, you shall not be deemed to be specifically authorized by SparCode to provide a hyperlink to the Site or any Microsite from any other website. In any case, SparCode reserves the right to withhold or revoke its consent to any link at any time in its sole discretion.
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Miscellaneous.
This Agreement, including the Terms of Sale and Terms of Service set forth below (which are incorporated into this Agreement), and any operating rules or guidelines for SparCode and SparCoders established by SparCode, constitute the entire agreement of the parties with respect to the subject matter hereof. No waiver by either party of any breach or default hereunder is a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall be of no legal force or effect. If any provision of this Agreement is held invalid by a court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions contained in this Agreement, and the remaining portions of this Agreement shall continue in full force and effect. The failure of either party to exercise any of its rights under this Agreement shall not be deemed a waiver or forfeiture of such rights or any other rights provided hereunder.
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Arbitration.
By using this Site, Microsites or the SparCode store, End User agrees that: (1) any claim, dispute, or controversy End User may have against SparCode arising out of, relating to, or connected in any way with this Agreement, this Site, or any Microsite, or the purchase or sale of any Goods or related products or services through the SparCode store, shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”); (2) the arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for End User), or at such other location as may be mutually agreed upon by End User and SparCode; (3) the arbitrator shall apply Delaware law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (4) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only the End User’s and/or SparCode’s individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (5) in the event that the End User is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, SparCode will pay as much of the End User’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (6) with the exception of subpart (4) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (4) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither End User nor SparCode shall be entitled to arbitrate their dispute. For more information on AAA and its Rules and Procedures, End Users may visit the AAA website at http://www.adr.org.
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Disclosures.
SparCode is organized under the laws of the State of Delaware, and our address for general correspondence is 105 – 501 Silverside Road, #2897, Wilmington, DE. Please note that all communications (including formal notices) under this Agreement are to be sent and received by email. For this purpose, your notices should be sent through , and we will send our notices to you at the email address you notify to use when you register as a SparCoder, as changed subsequently in your Account details.
If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. You should note that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Current providers of such protections can be found at: http://www.en.wikipedia.org/wiki/List_of_Content_Control_Software.
II. TERMS OF SALE
Last updated March 7th, 2011
You are required to create a SparCode account in order to purchase any Goods. This is required so we can provide you with easy access to license keys, view your past purchases, modify your preferences, and to otherwise provide you with relevant information and services.
If you purchase any Goods, you accept and agree to SparCode's Terms of Service, Terms of Use, Privacy Policy, and any other applicable terms, conditions, policies or disclaimers found on our Site or Microsites (collectively the “SparCode Store Policies”). Capitalized terms not otherwise defined in these Terms of Sale shall have the meanings ascribed to them in SparCode’s Terms of Use, Terms of Service and Privacy Policy, respectively. We encourage you to read the SparCode Store Policies carefully. PLEASE DO NOT PURCHASE PRODUCTS FROM SPARCODE SITE OR MICROSITES IF YOU DO NOT AGREE TO THE SPARCODE STORE POLICIES.
SparCode may update the Terms of Sale at any time and without notice to you. Please review the current Terms of Sale each time you visit the SparCode store.
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Export Limitations
Goods purchased from SparCode (including software, games and e-books) may be subject to customs and export control laws and regulations of the United States and/or other countries. By purchasing, licensing, downloading or using such products, you agree to comply with all international and national laws and regulations that apply to such products, including, without limitation, the U.S. Export Administration Act and the Arms Export Control Act.
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Limitations on Use by Minors.
You must be at least 18 years of age to purchase Goods from SparCode.
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Use of Information About You.
We process, use and maintain information about you and your purchase history according to our Privacy Policy.
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Accuracy of Your Billing and Account Information.
You agree to provide current, complete, and accurate purchase and account information for all purchases made at the SparCode store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
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Product Display and Colors.
The SparCode Site, Microsites and store attempts to display product colors and images as accurately as possible. Different computer monitors display color differently, however, and we cannot guarantee that the color you see on your monitor will exactly match the color of any product or Goods.
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Errors on the Site
SparCode works hard to publish information accurately, update the site regularly and correct errors when discovered. However, any of the content on our Site, Microsites or store may be incorrect or out of date at any given time. SparCode reserves the right to make changes to our Site, Microsites and store at any time, including to product prices, computation of discounts to publisher or manufacturer suggested retail prices, specifications, offers and availability. With respect to the computation of discount to or value of any offer relative to the publisher or manufacturer suggested retail prices, you acknowledge and agree that SparCode is relying solely on information provided by the Publishers of Goods without independent investigation, certification or legal analysis regarding the specific marketing and pricing practices of such third parties in any territory or under the laws and regulations of any jurisdiction. SparCode also reserves the right to revoke any Goods offer and refuse, reject or cancel any order at any time to correct for errors on the Site, Microsites, or store. If your credit card has already been charged for an order that is canceled, SparCode will issue a credit to the same credit card for the amount of the canceled charge.
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Product Availability and Quantity and Order Conditions and Limits.
Product prices and availability are subject to change at any time and without notice. SparCode may place a limit or condition precedent, at any time and for any reason, on quantities that may be purchased in the aggregate, per order, per account, per credit card, per person, or per household. SparCode may also refuse, reject or cancel any order at any time and for any reason. If your credit card expires between when you place your order and when we process the transaction, we will cancel the order. SparCode also reserves the right, in its discretion, to restrict or prohibit sales to dealers or resellers.
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Purchase and License Terms.
When you purchase software, games, e-books and other digital goods, you are actually purchasing a license to use the digital good rather than purchasing the software, game, e-book or other digital good itself. All digital good licenses purchased through SparCode are subject to the license agreement that accompanies the specific digital good or product. You will be required to agree to the terms and conditions of the license agreement at the time you install or download the software, game, e-book or other digital good. BECAUSE DIGITAL GOODS GENERALLY CANNOT BE RETURNED ONCE DELIVERED, PLEASE READ THE APPLICABLE LICENSE AGREEMENT BEFORE YOU DECIDE TO PURCHASE ANY SOFTWARE, GAME, E-BOOK OR OTHER DIGITAL GOODS FROM SPARCODE. UNLESS OTHERWISE SPECIFICALLY DISCLOSED AT TIME OF SALE, ALL SALES OF GOODS THROUGH THE SPARCODE STORE ARE FINAL.
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Intellectual Property.
Products offered for sale on the SparCode store website are the intellectual property of SparCode or its suppliers.
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Termination of Site Use.
SparCode may terminate your SparCode account or use of the SparCode Site, Microsites or store at any time and for any reason. By using the SparCode store, you agree to be responsible for any orders you make or charges you incur prior such termination. SparCode may change, discontinue, or otherwise suspend the SparCode store at any time, for any reason, and without prior notice to you.
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DISCLAIMERS AND LIMIATION OF LIABILITY.
THE SPARCODE SITE, MICROSITES AND STORE AND ITS CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BY USING THE SPARCODE SITE, MICROSITES AND STORE, YOU AGREE TO ASSUME ALL RELATED RISKS. NEITHER SPARCODE NOR ITS SUBSIDIARIES, SPARCODERS, PUBLISHERS OR SUPPLIERS MAKE ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SPARCODE SITE, MICROSITES, OR STORE, INCLUDING WITHOUT LIMITATION THE ACCURACY OF THE CONTENT OR THAT YOUR USE WILL BE UNINTERRUPTED OR ERROR FREE. IN NO EVENT SHALL SPARCODE BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE OPERATION, USE OR PERFORMANCE OF THE SPARCODE SITE, MICROSITES OR STORE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES OR DIGITAL GOODS, OR THE INFORMATION AVAILABLE FROM THE SPARCODE SITE, MICROSITES, STORE OR SERVICES. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, SPARCODE DISCLAIMS ALL WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, RELATED TO YOUR USE OF THE SPARCODE SITE, MICROSITES AND STORE.
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Governing Law.
Delaware state law governs the interpretation of the Terms of Sale and applies to claims for breach of them regardless of conflict of laws principles. The laws of the state, province or country where you live govern all other claims, including claims under consumer protection laws. Please refer to Section 17 Arbitration of our Terms of Use for information regarding how you may resolve any claims or disputes you may have regarding your purchase of Goods or use of the SparCode Site, Microsites or store.
III. TERMS OF SERVICE: SparCode Loyalty and Cash Back Program
Last updated April 5th, 2011
The terms and conditions contained in these Terms of Service ("Terms") apply to the SparCode Loyalty and Cash Back Program ("Program") offered by SparCode, Inc. ("SparCode") to SparCode end users in good standing ("SparCoder" or "you"). Capitalized terms not otherwise defined in these Terms of Service shall have the meanings ascribed to them in SparCode’s Terms of Use, Terms of Sale and Privacy Policy, respectively. Please read these Terms carefully as they govern all aspects of the Program. By participating in the Program you agree to the Terms. If you want to opt out of the Program, you must send an email to . By opting out, you acknowledge and agree that you will immediately forfeit any accrued but unpaid credits or other rewards earned under the Program and will within ten days or less be removed from all promotional email communications from SparCode.
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Eligibility to Participate.
Participation in the Program is limited to SparCoders in good standing who are 18 years of age and older, or the age of majority in their stated of residence, whichever is older and residents of the jurisdiction where the program is lawful. The Program is maintained for the benefit and participation of individual SparCoders only. Groups, corporations, associations or other legal entities are not eligible. Each SparCoder may maintain only one account under the Program. Duplicate accounts will be subject to cancellation. Only the SparCoder named on the account will be entitled to earn cash back or other awards issued on that account. You do not need to take any special steps to participate in the Program. You are automatically enrolled in the Program once you become a SparCoder unless you opt out as set forth above.
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Qualifying Activities.
The following activities ("Qualifying Activities") may result in the award of cash back awards to SparCoders participating in the Program:
Purchases of any Goods (e.g., products, services or other digital goods) at www.sparcode.com by those individuals with a referral link connected to your SparCode ID (a "Qualifying Purchase"), and
Any other action that SparCode may, from time to time in its sole discretion, promote or designate as a "Qualifying Activity”.
Please note that you must have actually purchased (and not returned, refunded or charged-back such purchase) the specific product, service or Goods in question to receive cash back credits in connection with any Qualifying Purchase.
A Qualifying Purchase may be one that arises from a voluntary communication initiated from you to your friends or family by using the social media tools provided by SparCode, including, without limitation, those provided by the Site, Microsites, store and email communications sent by SparCode to you (a “Qualifying Purchase – Friends and Family”). Please note that you may only refer individuals that you know on a personal basis, and you may not refer yourself, a nonexistent person, or any person who you may have reason to believe may take objection to being asked to view a SparCode offer or join the community of SparCoders.
In addition, note that a Qualifying Purchase – Friends and Family may include purchases of Goods being promoted by SparCode on both “Today’s Deal” and “Deals in Progress.”
A Qualifying Purchase may also be one that arises from the selection of a specific SparCoder to receive cash back credits in connection with the purchase by a third party of one or more Goods on “Deals in Progress” (a “Qualifying Purchase – Publisher”). Please note that one (and only one) SparCoder will always receive cash back credits for each and every purchase of any Goods through “Deals in Progress”. (By contrast, the only way to earn cash back credits from a purchase of Goods on “Today’s Deal” is through a voluntary communication initiated by a SparCoder to his or her friends or family as described in the paragraph above.)
With respect to any given deal, it is possible to earn cash-back on a Qualifying Purchase by individuals that are already SparCoders – this is not limited to new customers only. Accordingly, please feel free to share a SparCode deal on digital goods with other SparCoders you know with a view towards enabling both of you to equally split the 20% cash back credits awarded on your referral (10% to you and 10% to your friend or family member). If you’re shy or otherwise don’t want to share the deal through a voluntary communication initiated by you to your friends or family members, you can still earn cash back credits by simply posting a rating, review or other content about the Goods you purchase. If a third party (who may or may not be your friend or family member) later selects you as the person to receive the credit for their purchase of the same Goods through “Deals in Progress”, you will be awarded 20% of your original purchase price back in the form of cash back credits. When creating and posting any such content to SparCode, however, please be advised that you also represent to SparCode that you own all rights to such content, such content does not infringe upon another’s rights or marks, you will not object to the use of such content by SparCode in any context, and such content does not infringe upon another’s rights or marks. Please refer to the SparCode Terms of Use, specifically Sections 4, 5 and 6.
SparCode reserves the right not to send any given referral an invitation email if the referral has opted out of receiving emails from SparCode, if SparCode believes that you are referring people you do not know personally or may be using the Program in a fraudulent manner, or for any other reason as determined by SparCode in its sole discretion. Upon receipt of notices complying or substantially complying with the Digital Millennium Copyright Act (“DMCA”) and SparCode’s Terms of Use, SparCode may act expeditiously to remove or disable access to any ratings, reviews, content or other material claimed to be infringing or claimed to be the subject of infringing activity and may act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing, in each case as determined by SparCode in its sole discretion.
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Determination of How Much Cash Back You Get?
There is no limit to the amount of SparCode cash back credits you can get.
SparCoders receive cash back credits based on the nature and number of Qualifying Purchases linked to your SparCode ID. Note that the calculation of cash back amounts credited to your account is always pegged to the price you paid for a Good, and not the price paid by any third party for the same Good. Accordingly, if you bought a Good through Today’s Deal at one price, and there is a Qualifying Purchase by a third party through Deal’s in Progress at different price, the cash back amounts credited to your account for that Qualifying Purchase would be based on the price you originally paid for that Good.
Qualifying Purchases – Friends & Family – 10%/10%. You equally split the 20% cash back credits awarded whenever one of your friends or family members purchases a Good through your referral link - 10% to you and 10% to your friend or family member. The SparCode “friends and family” concept is simple: sharing is caring…even Steven…win/win. Example: If you paid $50 to purchase a specific Good, and decide to use the SparCode sharing tools to let you friends and family know about the deal, for each purchase of that specific Good (linked by the SparCode sharing tool to your SparCode ID), both you and your friend or family member receive cash back credits in the amount of $5.00.
Qualifying Purchases – Publisher – 20%. You get the entire 20% cash back credits whenever a third party purchases a Good linked to your SparCode ID through Deals in Progress, and that party picks you to receive such credits. The SparCode “publisher” concept is simple: if you provide a rating, review or other content you own about a specific product that other SparCoders believe is interesting or valuable in connection with their purchase of that same Good, then we give you credit for that purchase and sale. Example: If you paid $50 to purchase a specific Good and then post content about that Good linked to your SparCode ID, and then two hours, or two days or even two months later, some random third party decides to purchase that specific Good and picks you to receive the credit for his or her purchase, you receive cash back credits in the amount of $10.00.
You may not initiate a cash back credit payment request until you have at least fifty United States dollars (US$50.00) (or currency equivalent) in your account, and the Qualifying Purchases have settled for a reasonable period of time (usually 30 days). Each payment of cash back credits to you will be subject to a service fee equal to the greater of five United States dollars (US$5.00) (or currency equivalent) or 5% of the amount of such payment. Payments shall be made, at SparCode’s option, in whatever currency it deems appropriate. In no case shall SparCode be liable for paying any fees or charges associated with any currency conversion in connection with any cash back credit payment. Such fees and charges, if any, shall be either deducted by SparCode from your payment or paid by you or your depository financial institution in accordance with your third party agreement(s).
Each Qualifying Purchase and Qualifying Activity, as the case may be, will result in the award of a certain amount of cash back credits as specified by SparCode. The number of credits will typically be displayed on the Site and may be communicated to you via an email message, via a Site or Microsite, or otherwise. The specified credits will be added to the account of the SparCoder that engaged in the Qualifying Purchase or Qualifying Activity, as the case may be. SparCode cash back credits cannot be combined across more than one SparCoder account.
All cash back credits are subject to review and verification by SparCode. SparCode reserves the right to withhold or delay the award of cash back credits until it has confirmed or cleared the transaction constituting the Qualifying Purchase or Qualifying Activity, as the case may be. SparCode reserves the right, at its sole discretion, to adjust a SparCoder’s account status due to computer error, machine malfunction, employee, customer or other error, fraud or other misuse of the Program. All decisions of SparCode with respect to the issuance, deduction, adjustment or use of cash back credits shall be final and binding on all SparCoders.
SparCode further reserves the right to deduct cash back credits already awarded if it discovers in its sole discretion that the Qualifying Purchase or Qualifying Activity, as the case may be, was invalid, fraudulent or did not comply with SparCode policies and procedures. For all returned, refunded or charged-back purchases associated with a Qualifying Purchase or Qualifying Activity, as the case may be, SparCode will deduct the cash back credits earned (and any related third party fees or assessments, if any) for such purchase from your Program account.
Accrued cash back credits do not constitute the property of any SparCoder. If you voluntarily terminate your SparCode membership (or we terminate your SparCode membership for violation of the SparCode Terms of Use or Program rules), all accrued but unpaid cash back credits shall be forfeited. SparCode cash back credits are not transferable (i) upon death, (ii) as part of a domestic relations matter, or (iii) otherwise by operation of law. SparCode cash back credits accrued in a Member's account shall be maintained in that account until paid out in accordance with the Program or until they expire, terminate or are forfeited, whichever occurs first.
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Payment of Cash Back Credits to You.
Subject to a reasonable settlement period (usually 30 days for each Qualifying Purchase), SparCode will pay cash back to SparCoders as soon as they have achieved a minimum accrued amount equal to fifty United States dollars (US$50.00) (or currency equivalent). Each payment of cash back credits to you will be subject to a service fee equal to the greater of five United States dollars (US$5.00) (or currency equivalent) or 5% of the amount of such payment. Payments shall be made, at SparCode’s option, in whatever currency it deems appropriate; in no case shall SparCode be liable for paying any fees or charges associated with any currency conversion in connection with any cash back payment – those fees and charges, if any, shall be either deducted by SparCode from the payment or paid directly by the SparCoder.
It is your responsibility to keep your account information current in order to facilitate the payment of cash back credit. SparCode is not responsible for any misapplied payments or payments sent to the wrong address if these errors were caused by inaccurate email or contact information provided by you or your failure to update your account information for any changes. In the event your information was not current as of the time of payment, you will forfeit all accrued cash back credits.
The Program may be ended, percentages reduced or the program modified in any way, at any point, and without notice, though all undisputed cash back amounts that have been accrued but not paid in accordance with the Program will be paid in cash or by delivery of Goods in-kind if and when this occurs.
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Other Terms and Conditions.
- Participation in the Program and use of the SparCode Site, Microsite and store are also subject to the SparCode Terms of Use and Terms of Sale, which shall prevail. Participation in the Program is also subject to any terms and conditions, rules, regulations, policies, and procedures relating to the Program ("Program Rules") that SparCode may, at its discretion, adopt from time to time. SparCode has the sole right to interpret and apply the Program Rules. Each SparCoder shall be responsible for remaining knowledgeable as to the Program Rules and the amount of cash back credits in his or her account. The decisions of SparCode shall be final and binding as to all matters relating to the interpretation and application of these Terms or the Program Rules.
- These Terms, together with the SparCode Terms of Use, Terms of Sale and the Program Rules, represent the entire agreement of the parties with respect to the Program and supersede any and all prior agreements, communications or understandings regarding the same. SparCode reserves the right to modify or terminate this Program at any time, including, but not limited to, changing the Terms, benefits, conditions of participation or earning levels, even though changes may affect the value of the cash back credits already accumulated.
- SparCode may modify these Terms or terminate the Program at any time, in its sole discretion, by posting amended Terms or a termination notice accessible through SparCode Site, or by sending an email to the email address tied to the SparCoder's account. Such notice shall be effective immediately after it is posted or emailed. If an amendment is not acceptable to you, your only recourse is to opt out of the Program.
- This Program is void where prohibited or restricted by law.
- SparCode may, in its sole discretion, suspend or terminate any SparCoder's account under this Program, including any ability to earn or be paid cash back credits, for any violation of these Terms, the Terms of Use, Terms of Sale or the Program Rules, or for any fraudulent or other activity that SparCode considers detrimental to the Program or for any other reason that SparCode deems appropriate.
- Each SparCoder is solely responsible for any federal, state, provincial, national and other tax liabilities relating to or arising out of his or her participation in the Program, receipt or payment of cash back credits. Each SparCoder is also responsible for, and if requested, shall pay any sales, VAT and other taxes that may be charged on any Qualifying Purchase, Qualifying Activity, or the receipt of payment of any cash back credits.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPARCODE DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS REGARDING THE PROGRAM AND ANY PRODUCTS, SERVICES, GOODS, ACCRUALS, OR PAYMENTS RECEIVED IN CONNECTION WITH THE PROGRAM, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR OR GENERAL USE OR PURPOSE.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPARCODER HEREBY RELEASES AND WAIVES, AND SPARCODE AND ITS AFFILIATED COMPANIES, AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS, SHALL NOT BE LIABLE FOR ANY CLAIMS, ACTIONS, INJURY, LOSS OR DAMAGE OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY OR DEATH, RESULTING FROM THE PROGRAM OR ANY PRODUCTS, SERVICES, GOODS, ACCRUALS, OR PAYMENTS RECEIVED IN CONNECTION WITH THE PROGRAM.
- THIS LIMITATION OF LIABILITY IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING (WITHOUT LIMITATION) COMPENSATORY, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES; LOSS OF DATA, INCOME OR PROFIT; LOSS OR DAMAGE TO PROPERTY; AND CLAIMS OF THIRD PARTIES.
- THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS.
- SparCode is not responsible for printing or typographical errors in any Program related materials; for stolen, lost, late, misdirected items; or for transactions and/or emails that are lost, misdirected, fail to enter into the processing system or are processed, reported or transmitted late or incorrectly or are lost for any reason including computer, telephone, paper transfer, human or other error; or for electronic, computer or telephonic malfunction or error, including inability to access any web site associated with the Program, properly track and credit awards under the loyalty and cash back program, or process any transaction thereon. If in SparCode's opinion, there is any suspected or actual evidence of electronic or non-electronic tampering with any portion of the Program, or if computer virus, bugs, unauthorized intervention, fraud or technical difficulties or failures compromise, or corrupt or affect the administration, integrity, security, fairness, or proper conduct of the Program, SparCode reserves the right at its sole discretion to disqualify any individual connected therewith, to modify or suspend the Program, or to terminate the Program.
- Delaware state law governs the interpretation of the Terms of Service and applies to claims for breach of them regardless of conflict of laws principles. The laws of the state, province or country where you live govern all other claims, including claims under consumer protection laws. Please refer to Section 17 Arbitration of our Terms of Use for information regarding how you may resolve any claims or disputes you may have regarding your purchase of Goods or use of the SparCode Site, Microsites or store.
