Last updated: 26 December 2013
The Site is intended for individuals who are the age of 13 years or older. Any use of the Site by anyone under the age of 13 years is expressly prohibited. By accessing and/or using the Site you warrant that you are over the age of 18 or possess the appropriate legal parental or guardian consent to agree to the Site Terms and comply therewith.
1. License Grant.
1.1. Sparkup hereby grants you a revocable, personal, non-exclusive and non-transferable limited license and right to access and use the Site, provided that you comply with the Site Terms and applicable law. Sparkup, in its discretion, have the right to terminate your access to and/or your use of the Site immediately, with or without cause. Sparkup reserves all rights not expressly granted in and to the Site.
1.2. If you contact Sparkup with feedback, comments, ideas, suggestions or the like (collectively, “Feedback”), you agree that all such Feedback shall be deemed to be non-confidential and property of Sparkup and Sparkup shall be free to use any Feedback you provide for any purpose.
2. Site Restrictions. Except as expressly permitted herein, you shall not (and not permit any third party to): (i) copy, distribute or modify any part of the Site without Sparkup’s prior written consent; (ii) transmit any Content containing viruses, or other harmful computer code, files or programs; (iii) disrupt or overload servers or networks connected to the Site; (iv) use or launch any automated system (including but not limited to “robots”, “spiders” and “offline readers”) to access the Site in a manner that sends more request messages to the Sparkup servers in a given period than a human can reasonably produce in the same period by using a conventional on-line web browser; (v) circumvent, disable or otherwise interfere with the Site’s security-related features or technical restrictions; (vi) use the communications systems provided by the Site to send unsolicited or unauthorized commercial communications; (vii) collect or harvest any personally identifiable information from the Site or invade the privacy rights of any person; and/or (viii) use the Site in a manner that violates any applicable laws, rules or regulations or for any illegal, harmful or unauthorized purpose or in any manner that breaches the Site Terms. If you are the operator of a public search engine you may use automated means to copy Content from the Site solely for the sole of creating publicly available searchable indices of the Content, but not caches or archives thereof.
3. Software Terms. You acknowledge and agree that: (i) any software (including any updates or upgrades) and related documentation that you may be able to access, download and use from the Site (collectively, “Software”) is the copyrighted work of Sparkup and/or its licensors; and (ii) your access, download and/or use of Software is subject to and governed by the terms of the related software license agreement which accompanies or is included with the Software, which you agree to review prior to accessing, downloading or using the Software and abide by (collectively, “Software Agreement“). To the extent of any conflict between these Terms and any Software Agreement, the Software Agreement shall prevail. Unless Software is expressly referred to or excluded, all references herein to the Site shall include the Software.
5. Ownership and Use. The Site, the content on the Site, including but not limited to, the text, information, material, documents, descriptions, products, software, graphics, images, photos, sounds, videos, interactive features, services and User Content including Feedback (“Content”), and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Sparkup. “Sparkup”, “The Magical Book Reader”, the Sparkup logo, and other marks are Marks of Sparkup. All other Marks used on the Site are Marks of their respective owners. All rights not expressly granted to you herein are reserved by Sparkup and its licensors. Content on the Site is provided to you “AS IS” without any warranties of any kind, express, implied or statutory, for your information and personal and/or internal business use only in connection with the Site and may not be copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise used or exploited for any other purposes without Sparkup’s prior written consent. If you download or print a copy of the Content as permitted herein, you must retain all copyright and other proprietary notices contained therein. Your use of the Content is at your own risk. Sparkup reserves the right, in its discretion, to remove or change any Content.
6. User Content.
6.5. When accessing and/or using the Site you may be exposed to third parties User Content. You agree that Sparkup is not responsible for the legality, reliability, availability, accuracy, relevance or inappropriate nature thereof, the Intellectual Property Rights relating thereto, or any loss or damage caused or alleged to be caused by or in connection with your access or use thereof or reliance thereupon, which are at your sole risk, and you expressly release Sparkup from all liability arising therefrom.
6.6. Sparkup has the right to access, review, edit, remove, preserve and disclose any User Content or other information it obtains in connection with the Site as it deems necessary to: (i) comply with any applicable laws, rules, regulations, codes, orders or requirements of a court, administrative agency or other governmental body, (ii) ensure your compliance with and/or to enforce these Terms, (iii) detect, prevent, or otherwise address security or technical issues or unlawful, fraudulent or improper activity via the Site, (iv) protect the rights, property or safety of Sparkup, its visitors, users or the general public, and/or (v) respond to your support requests.
7.2. Sparkup may permit you to link to the Site provided that (i) the hyperlink text accurately describes the Content as it appears on the Site, (ii) you link to but do not replicate any page thereof; (iii) you do not present false information about Sparkup, do not imply that Sparkup endorses any products or services and/or misrepresent your relationship with Sparkup, unless Sparkup’s express prior written consent is obtained, (iv) your website does not contain content that is offensive, controversial or infringes any Intellectual Property Rights or other rights of any person; (v) you do not link from a website that you do not own, and/or (vi) you and your website comply herewith and with applicable laws.
8. Interactions. You are advised to exercise caution in your interactions with other Sparkup Site users, including but not limited to, when posting User Content or other personal information. Your interactions with other Sparkup Site users, whether online or offline, and their consequences, are solely at your sole risk and you expressly release Sparkup from all liability arising therefrom and from the conduct of any Sparkup user. Sparkup has the right, (but is not obliged) to monitor or become involved in disputes between you and other Sparkup users.
9. Invite Friends Feature. The Site may enable you to invite third parties who are not current Sparkup users to visit and/or use the Site (“Invite Friends Feature”). If you choose to invite third parties to the Site through Sparkup’s Invite Friends Feature, you will need to provide Sparkup with the e-mail addresses of such third parties. Sparkup will use the e-mail addresses that you provide to automatically send such third parties a referral link by e-mail. You agree to provide e-mail addresses only of your friends or contacts that you know, and with relation to such third parties, not to make any warranties or representation on Sparkup’s behalf, not to misrepresent your relationship with Sparkup, and to comply with these Terms and applicable laws.
10. Advertisements. The Site may display advertisements not operated by Sparkup and Sparkup has no control over the content thereof. The existence of an advertisement shall not be construed as an endorsement by Sparkup of the advertisement or its content.
12. Copyright Policy. Sparkup has adopted and implements a policy to protect the rights of copyright owners, which is available at: http://www.sparkup.com/copyright-policy/ (“Copyright Policy”), and will take action against alleged copyright infringement in connection with or arising from any User Content in accordance therewith. Please refer to the Copyright Policy for further information.
13. Warranty Disclaimers. The Site and User Content are provided on an “as is”, “with all faults” and “as available” basis. SPARKUP HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, ACCURACY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. SPARKUP DOES NOT WARRANT THAT (I) THE SITE WILL BE FREE OF ERRORS, VIRUSES, OR SECURITY BREACHES, OR THAT ERRORS WILL BE CORRECTED, (II) YOUR USE OF THE SITE WILL BE UNINTERRUPTED, SECURE OR TIMELY, OR (III) THE SITE WILL MEET YOUR REQUIREMENTS. THE SITE MAY OCCASIONALLY BE UNAVAILABLE FOR ROUTINE MAINTENANCE, UPGRADING, OR OTHER REASONS. YOU AGREE THAT SPARKUP WILL NOT BE RESPONSIBLE FOR ANY CONSEQUENCES THAT MAY RESULT FROM TECHNICAL PROBLEMS (INCLUDING BUT NOT LIMITED TO PROBLEMS IN CONNECTION WITH THE INTERNET SUCH AS TRAFFIC CONGESTION, OVERLOAD OF SERVERS OR SLOW CONNECTIONS). ACCESS AND USE OF THE SITE, AND/OR PURCHASE OF ANY PRODUCTS OR SERVICES THROUGH OR IN CONNECTION WITH THE SITE OR ANY CONDUCT AS A RESULT OF ANY ADVERTISEMENT DISPLAYED THEREON IS DONE AT YOUR OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SPARKUP OR THROUGH THE SITE OR USER CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. Applicable laws may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply. This Section is in addition to any warranty disclaimers specified herein.
14. Limitation of Liability. TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, SPARKUP INCLUDING ITS AFFILIATES, SHALL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND ARISING HEREUNDER OR OUT OF YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF SPARKPUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, WITHOUT LIMITING THE GENERALITY OF THE AFOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, IN NO EVENT SHALL SPARKUP’S AGGREGATE LIABILITY FOR ALL DAMAGES OR LOSSES ARISING HEREUNDER OR IN CONNECTION WITH THE SITE EXCEED THE AGGREGATE OF THE AMOUNT ACTUALLY PAID BY YOU, IF ANY, TO SPARKUP THROUGH THE SITE WITHIN THE SIX (6) MONTHS PRECEDING THE DATE GIVING RISE TO SAID CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
15. Indemnity. You agree to defend, indemnify and hold harmless Sparkup, its affiliates and respective officers, directors, agents, consultants and employees from any third party claims, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising from (i) your use, misuse of or inability to use the Site, (ii) your violation of these Terms, any applicable law or third party right, and/or (iii) your User Content, access and/or use of the Site and interactions with another User, invitee or other third party,. This obligation will survive these Terms and your use of the Site. Without derogating from the foregoing, Sparkup reserves the right, at its expense, to assume the exclusive defense and control of any matter which is subject to indemnification by you, which will not excuse your indemnity obligations hereunder and in which event you will fully cooperate with Sparkup in asserting any available defence. You agree not to settle any matter subject to an indemnification by you without first obtaining Sparkup’s prior express written approval. Sparkup reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without Sparkup’s prior written consent.
16. Termination. These Terms shall continue until terminated as set forth herein. If you object to any term of these Terms, as may be amended from the time to time, or become dissatisfied with the Site, your only remedy is to immediately discontinue use thereof. Sparkup, in its discretion, may terminate your access to the Site, or any part thereof, and/or these Terms, at its discretion, at any time without notice and with or without cause, and shall not be liable therefor. Upon termination hereof: (i) the licenses and other rights granted to you hereunder will automatically terminate, (ii) you shall promptly cease all use of the Site, and if applicable, Sparkup Account (which Sparkup may deactivate, suspend or delete in its normal course of business operations), and (iii) any of your User Content will no longer be accessible by you via the Site. Sections 1.2, 2, 3, 5through 8 and 10 through 17 shall survive any termination hereof. Termination is not Sparkup’s exclusive remedy, and all other remedies will be available to Sparkup whether or not these Terms are terminated.
17. General. Nothing herein shall be construed to create any employment relationship, partnership, joint venture or agency relationship or to authorize any party to enter into any commitment or agreement binding on the other party. You may not assign or transfer any rights or obligations hereunder without Sparkup’s prior written consent. Any attempt to do so in violation of the foregoing shall be void. Sparkup may assign or transfer these Terms without restriction or notification. The Site Terms, together with any other legal notices published by us on the Site, shall constitute the entire agreement between you and Sparkup concerning the Site. If any term hereof shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that term shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect while most nearly adhering to the intent expressed herein. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof or constitute any form of estoppel and no waiver of any term hereof shall be deemed a further or continuing waiver of such term or any other term. No amendment hereof will be binding unless in writing and signed by Sparkup. Sparkup reserves the right to modify these Terms at any time by publishing the revised Terms on the Site at: http://sparkup.com/terms-of-use/. Such change will be effective ten (10) days following the foregoing publication thereof, and your continued use of the Site thereafter means that you accept those changes. These Terms shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of Israel without regard to conflicts of laws provisions thereof. The United Nations Convention Relating to a Uniform Law on the International Sale of Goods may not be applied. The sole jurisdiction and venue for any dispute regarding the terms hereof or any action relating to the subject matter hereof shall be the courts in Tel Aviv-Jaffa, Israel. Notwithstanding the foregoing, Sparkup may seek injunctive relief in any court of competent jurisdiction. The parties agree that all correspondence relating hereto shall be written in the English language. If you have any questions, complaints or claims regarding the Site you may e-mail Sparkup at:
YOU ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.