Terms of Service
Welcome, and thank you for your interest in www.sparkleswap.com, owned and operated by SparkleSwap LLC, an Arizona State Limited Liability Company (“SparkleSwap,” “company”, “us”, “our” or “we”), and our services made available to you, an individual or business seeking to purchase merchandise (“Buyer”) from an individual or business seeking to sell merchandise (“Seller”), both of whom may be referred to as the “user” or “you” throughout the Terms of Service and our website (the “Website” or the “Site”) and any mobile applications that we may make available to you now or in the future (the “Apps”).
The Website and the App together constitute our service (the “Service” or “Services”). Unless otherwise specified, all references to the Services include the services available through the SparkleSwap Website and any mobile Apps, as well as any software that SparkleSwap provides to you that allows you to access the Services. The following Terms of Service are a legally binding contract between you and SparkleSwap regarding your use of the Service.
Please read the following Terms of Service (“Terms” or “Agreement”) carefully before accessing or using any of the Services. Each time you access or use the Service, you, and if you are acting on behalf of a third party or your employer, such third party or employer,agree to be bound by these Termswhether or not you register with us. If you do not agree to be bound by all of these Terms, you may not access or use the Service. SparkleSwap may change this Agreement at any time by posting an updated Terms of Service on this site. If any amendment to these Terms is unacceptable to you, you shall cease using this Site or the App. If you continue using the Site or the App, you will be conclusively deemed to have accepted the changes.
In addition, certain areas of our Service may be subject to additional Terms of Service that we make available for your review. By using such areas, or any part thereof, you are expressly indicating that you have read and agree to be bound by the additional Terms of Service applicable to such areas. In the event that any of the additional Terms of Service governing such area conflict with these Terms, the additional terms will control.
You acknowledge that Sellers and Buyers are independent contractors and that SparkleSwapis not a party to any sale, contract, agreement, arrangement or transaction between users of our platform. No agency, partnership, joint venture, or employment is created as a result of these Terms of Service or any user’s use of any part of the platform.
SparkleSwap does not endorse users of our Services and has no control of any transaction between Buyers and Seller. It is within the sole judgment and discretion of the users of our Services to engage one another through our Services for the purchase and sale of any merchandise. You should always exercise responsibility, due diligence and care when deciding whether to make a purchase or sale, or have any interaction with any other user.
You agree that the use of our Services is at your sole risk and by using the platform, you understand and agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users or other third parties will be limited to a claim against those particular users or other third parties and not SparkleSwap. You agree not to attempt to impose liability on or seek any legal remedy from SparkleSwapwith respect to such actions or omissions.
PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER PROVISIONS IN THE DISPUTE RESOLUTION SECTION OF THESE TERMS. IT AFFECTS HOW DISPUTES ARE RESOLVED.BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT, INCLUDING THE DISPUTE RESOLUTION, ARBITRATION PROVISIONS AND CLASS ACTION WAIVER AND ACCEPT ALL OF THE TERMS. YOU MAY NOT USE OR ACCESS OUR PLATFORM IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
- Description of Service
a. SparkleSwap is a marketplace venue where crafters can buy and sell their unused supplieswhile beinginspired by, and enjoying the camaraderie of other crafters in our talented and caring community. Sellers get cash for their unused supplies and Buyers get great quality supplies and beautiful treasures at up to 80% off retail prices.
b. The Service includes (i) SparkleSwap systems, procedures, processes and technologies, and (ii) any hardware, software, applications, data, reports, and other content made available by or on behalf of SparkleSwap.
c. The Service does not include any software application or service that is provided by you or a third party, which you use in connection with the Service.
d. Any modifications and new features added to the Service are also subject to this Agreement.
e. SparkleSwap reserves the right to modify or discontinue the Service or any feature or functionality thereof at any time without notice to you. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to SparkleSwap.
2. Eligibility for Our Service
By using our Services, you represent that you have attained the age of majority where you reside and are otherwise capable of entering into binding contracts including this Agreement. If you are using our Services on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement. If you are 13 years of age or older, you may only use our Services under the supervision of a parent or legal guardian who manages your account. Children under 13 years of age are not permitted to use SparkleSwap or the Services.
3. Independent Contractors; No Guarantees or Endorsements
The users of our Services are independent contractors. SparkleSwap is not a party to any sale, purchase, relationship, dealings or contract between users and no agency relationship, partnership, joint venture, employer-employee relationship or franchisor-franchisee relationship is intended or created by this Agreement unless otherwise stated in the merchandise offering.SparkleSwap is only a marketplace venue that provides a platform on which users can meet independently. Furthermore:
a. SparkleSwap does not take possession or title to, and does not transfer legal ownership of, any merchandise offered for sale on our Services unless otherwise stated in the merchandise offering.
b. SparkleSwap does not, in any way, supervise, direct, or control the Seller or the Buyer.
c. SparkleSwap does not intervene in any transaction between the users.
d. SparkleSwap does not endorse or recommend any particular user and we do not independently verify their representations about their merchandise, their identities, the ability to deliver the merchandise, nor do we validate any reviews and comments about our users. It is the sole responsibility of each user to evaluate the Seller or Buyer before entering into a transaction.
e. SparkleSwap makes no representations about, and does not guarantee the quality, safety, or legality of the Seller’s merchandise.
4. Accounts and Registration
a. To access some features of the Service you may be required to register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your name, company name, date of birth, e-mail address, physical address, phone number or other personal information). Some of this information may be of a confidential nature and may include personal identifying information (all “Your Information”).
b. If you provide Your Information to us then you agree to provide true, current, complete and accurate information, and not to misrepresent your identity. You also agree to keep Your Information current and to update Your Information if any of Your Information changes.
5. Account Management
a. Keep Your Password Secure.If you have been issued an account by SparkleSwap in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not SparkleSwap, are responsible for any activity occurring in your account, whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify SparkleSwap immediately.
b. Keep Your Details Accurate.SparkleSwap may send notices to the email address or text messages to your mobile phone registered with your account. You must keep your email address, mobile phone number and, where applicable, your contact details and payment details associated with your account current and accurate.
c. We reserve the right to modify, suspend or terminate the Service, any user account or your access to the Service for any reason, without notice, at any time, and without liability to you.
d. You can cancel your account at anytime. Upon termination or cancellation, all licenses and other rights granted to you in these Terms will immediately cease.
e. We reserve the right to refuse to issue an account to anyone or permit access to the Service to anyone for any reason at any time.
6. Your Access and Use of our Services
b. The rights granted to you in these Terms are subject to the following restrictions: (i) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (ii) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (iii) you shall not access the Services in order to build a similar or competitive Service; and (iv) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
c. Furthermore, you agree that you will not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor our Services or any portion of our Services or for any other purpose, without our prior written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for your personal information) from our Services without our prior written permission and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of our Services or any activities conducted on our Services; (iv) bypass any robot exclusion headers or other measures we may use to prevent or restrict access to our Services, or (v) interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature.
d. Except as expressly permitted in this Agreement, you shall not collect or harvest any personally identifiable information, including account names, from our Services.
e. Our Services may have “publicly accessible areas” that allow users to post User Content (defined hereafter) that will be accessible by the public or the user population generally. As a user of the Services, you acknowledge and affirmatively agree that in the course of using the Services you may be exposed to User Content that might be offensive, harmful, inaccurate or otherwise inappropriate. You further agree that SparkleSwap shall not, under any circumstances, be liable in any way for any User Content.
f. You understand that SparkleSwap may issue upgrade versions of any mobile App and you consent to receiving automatic upgrades on your mobile device. You also acknowledge and agree that standard carrier data charges may apply to your use of the Service including, without limitation, text messages.
g. You shall not use any communication systems provided on our Services including, without limitation email and chat services for any commercial or solicitation purposes or to circumvent our Services.
h. You shall not solicit for commercial purposes any users of our Services, that is not intended by the purpose of our Services, without our prior written permission.
i. You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Services.
a. All prices displayed in our Services are in U.S. dollars unless otherwise indicated.
b. All applicable taxes and other charges, including special delivery charges are additional and payable by Buyer.
Sellers, and not SparkleSwap, are solely responsible for collecting any taxes due on a sale including, without limitation, all sales, excise, import, export, VAT and other taxes or duties associated with the purchase and sale of any items through the Service, and remitting those taxes to the proper federal, state, or local tax authority.
9. Fees; Payments
a. Users acknowledge and agree that SparkleSwap reserves the right to charge service fees to Sellers or Buyers for any portion of our Services. SparkleSwap also reserves the right to change our fees at any time and in our sole discretion and without advance notice to you.
b. Payments will be processed by Stripe, credit card, bank transfer or a secure third-party payment processing service we may make available to you. To use a credit card for any transactions, you must have a valid credit card on file and we, or a third party credit card processor may, store your credit card information for future use. SparkleSwap will not charge your credit card unless you conduct an activity through the Service that requires your credit card to be charged. By agreeing to pay for a transaction with your credit card, you authorize us to charge your credit card.
c. Any payment processing fees and any ancillary charges required by the selected method of payments are the sole responsibility of the Buyer and Seller respectively and not
d. If you have any questions regarding your transactions or believe that there is an error or unauthorized transaction or activity associated with transactions utilizing your personal financial information, you must contact the credit card provider, bank or third party providing the method of payment and not SparkleSwap.
e. Any shipping fees, and all fees and charges associated with shipping and handling, are the responsibility of either the Buyer or the Seller as stated in the merchandise offering, or agreed to by the Buyer and Seller in the course of their transaction. SparkleSwap shall not be responsible for any shipping, handling or shipping associated expenses.
SparkleSwap is not directly involved in the purchase and sale transaction between Buyer and Seller but we want the users of our Service to be satisfied so we have provided the following return policy for our users:
a. Individual Sellers will have the ability to define their own return policies, including as an example, but not limited to such terms as, “items accepted for returns if in original packaging and unused”, or “items accepted for returns – no questions asked”.
b. Notwithstanding the foregoing, Buyers will always have the right to return an item if it is not as described (i.e. wrong color, wrong size, condition of product is misrepresented) or damaged, if the item was not shipped within the processing time listed on the item page, or if the item was never received; this supersedes the Seller’s return policy.
c. If the item you receive is damaged, the wrong item or not as described, or if any items are missing, then you must report the issue to the Seller within fourteen (14) days of receipt. If the order was not received within 7 days of the order processing and shipment date in the merchandise listing you must report the issue to the Seller within fourteen (14) days of your failure to receive it. After the expiration of the above times to report in this section, the Seller shall not be obligated to issue a refund.
11. Buyers and Sellers
a. If you are a Buyer you agree to complete and pay for the transaction in accordance with the terms and conditions specified by the Seller, unless the transaction is prohibited by law or these Terms of Service.
b. If you are a Seller, you must have the legal authority to sell the items that you are listing for sale through the Service. You must accurately, truthfully and completely describe your merchandise and all terms of the sale in your listing. You shall complete the transaction with the Buyer, unless the transaction is prohibited by law or these Terms of Service. You are also responsible for payment of the commission to SparkleSwap as required.
c. SparkleSwap may, in its sole discretion, remove any Seller merchandise at any time and for any reason. Furthermore, SparkleSwap may remove any Seller merchandise if such merchandise shall remain unsold on our Services for more than 90 days.
12. No Circumvention
Users are prohibited from circumventing SparkleSwap for the purpose of engaging one another for the purchase and sale of merchandise offered on our Service. Users may not contact another user in any manner whatsoever with the intent and purpose of avoiding SparkleSwap Services. Any violation of this non-circumvent term will result in the immediate termination of one or both users account(s) and Seller agrees and guarantees that Seller will pay a legal monetary penalty that is equal to the commission or fee SparkleSwap would have realized in such transactions, had Seller not circumvented our rights under this Agreement.
13. Privacy and Your Personal Information
b. Buyers may also voluntarily provide Sellers with the Buyer’s personal information and therefore Sellers may be considered separate and independent data controllers of Buyer’s personal information, in which event the Seller, and not SparkleSwap, shall be responsible for Buyer’s personal information so provided.
c. Sellers agree to hold SparkleSwap harmless and indemnify SparkleSwap for any legal action, liability, damages, fines or other expenses incurred as a result of Sellers actions regarding the collection, storage, handling and sharing of Buyer’ personal information.
14. Information Provided In Forums and Community Areas
a. SparkleSwap may provide our users with forums and community areas to connect and communicate in public or semi-public spaces. Any content that a user posts to these areas is considered “User Content” and therefore subject to the terms of the section of this Agreement titled “User Content Rights and Related Responsibilities; License”.
b. Users must exercise their own discretion and good judgment when posting or sharing personal information with others through the Services in these public and semi-public areas since any personal information that you choose to submit there can be read, collected and used by others.
15. Information Accuracy
a. We make no representation as to the completeness, accuracy, or currency of any information on the Service or other content available on this Website or App.
b. We attempt to ensure that information on this Service is complete, accurate and current, however, despite our best efforts, the information on our Service may occasionally be inaccurate, incomplete or out of date and SparkleSwap disclaims any responsibility or liability for such information. By using the Services, you agree to accept such risks.
16. Proprietary Rights
a. As between SparkleSwap and you, SparkleSwap or its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with this Agreement. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by SparkleSwap.
17. Intellectual Property Rights
a. Our names, graphics, videos, logos, page headers, button icons, scripts, and service names are our trademarks or trade dress in the United States and/or other countries (collectively, the “Proprietary Marks”), are owned by SparkleSwap. You may not use the Proprietary Marks without our prior written permission.
b. We make no proprietary claim to any third-party names, trademarks or service marks appearing on our Services. Any third-party names, trademarks, and service marks are property of their respective owners.
c. The information, descriptions, advice, data, software and content viewable on, contained in, or downloadable from our Services (collectively, “Our Content”), including, without limitation, all text, graphics, pictures, photographs, images, videos, line art, icons and renditions, are copyrighted by, or otherwise licensed to us or Our Content suppliers.
d. We also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of Our Content (the “Collective Work”).
e. All software used on, or within our Services is our property or the property of our software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using Our Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to Our Content, the Collective Work, or the Software.
f. You are solely responsible for any damages resulting from your infringement of our, or any third-parties, intellectual property rights regarding the Trademarks, Our Content, the Collective Work, the Software and/or any other harm incurred by us or our affiliates as a, direct or indirect, result of your copying, distributing, redistributing, transmitting, publishing or using the same for purposes that are contrary to the terms and conditions of this Agreement.
18. Use of Our Content
a. We grant you a limited license to access, print, download or otherwise make personal use of Our Content and the Collective Work for your noncommercial personal use provided, however, that you shall not delete any proprietary notices or materials with regard to the foregoing.
b. You may not modify Our Content or the Collective Work or utilize them for any commercial purpose or any other public display, performance, sale, or rental, decompile, reverse engineer, or disassemble Our Content and the Collective Work, or transfer Our Content or the Collective Work to another person or entity.
19. User Content Rights and Related Responsibilities; License
a. “User Content” means, without limitation, any images, photos, artwork, designs, graphics, videos, audio, comments, feedback, suggestions, reviews, messages, texts, digital files, and documents, or other content of any nature you upload, transmit or otherwise make available to SparkleSwap and its users via the Services for the sale of merchandise or for sharing in any community space or user forum.
b. You represent and warrant that you own or otherwise control the rights to your User Content and agree to indemnify SparkleSwap and its affiliates for all claims arising from or in connection with any claims to any rights in your User Content or any damages arising from your User Content.
c. By submitting User Content on or through the Service, you grant SparkleSwap a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such User Content without attribution, and without the requirement of any permission from or payment to you or to any other person or entity, in any manner including, without limitation, for commercial, publicity, trade, promotional, or advertising purposes, and in any and all media now known or hereafter devised, and to prepare derivative works of, or incorporate into other works, such User Content.
d. By submitting your ideas and suggestions to SparkleSwap (not including User Content or items you sell through our Services) you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and/or publish those ideas and materials for any purpose, without attribution or compensation to you.
e. In order for us to provide the Service to you, we require that you grant us certain rights with respect to User Content, including the ability to transmit, manipulate, process, store and copy User Content in order to provide our Services. Your acceptance of this Agreement gives us the permission to do so and grants us any such rights necessary to provide the Service to you.
f. You agree that any User Content you submit to our Service may be viewed by other users, any person visiting or participating in the Service and by the public in general.
g. SparkleSwap expressly disclaims any liability for the loss or damage to any User Content or any losses or damages you incur as a result of the loss or damage of any User Content. It is your responsibility to back-up any User Content to prevent its loss.
h. You are solely responsible for User Content, including, without limitation, reviews, comments and feedback, and any damages suffered by SparkleSwap resulting therefrom.
i. SparkleSwap may remove or return any User Content at any time for any reason whatsoever, or for no reason at all. We are not responsible for the authenticity, accuracy, completeness, appropriateness, or legality of User Content.
j. You represent and warrant that all information that you submit is authentic, accurate and truthful and that you will promptly update any information provided by you that subsequently becomes inaccurate, misleading or false.
k. User Content is not considered to be confidential. You agree not to submit User Content in which you have any expectation of privacy.
l. SparkleSwap has no control over User Content once posted, and it is possible that visitors to the App or Site may copy User Content and repost it elsewhere; you acknowledge and agree to this risk.
m. You agree not to post as part of the Service any offensive, inaccurate, incomplete, abusive, obscene, profane, threatening, intimidating, harassing, racially offensive, or illegal material. The following includes, without limitation, examples of the things you may not do:
i. Impersonate any person or entity.
ii. Stalk, harass, defame, abuse, bully, threaten or otherwise violate the legal rights of others.
iii. Advocate for or harass or intimidate another person.
iv. Promote information that is false or misleading.
v. Promote illegal activities or conduct that is defamatory, libelous or otherwise objectionable.
vi. Promote violence, racism, bigotry, hatred or physical harm of any kind against any group or individual.
vii. Transmit anything that exploits children or minors or that depicts cruelty to animals.
viii. Solicit personal information from anyone under the age of 18.
ix. Use the service in an illegal manner or to commit an illegal act.
x. Transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware.
xi. Transmit any content that contains video, audio, or images of another person without his or her permission or that of their legal guardian.
xii. Promote material that exploits people in a sexual, pornographic or violent manner.
xiii. Provide instructional information about illegal activities.
xiv. Infringe upon someone else’s trademark, copyright or other intellectual property or other rights.
xv. Promote commercial activities including without limitation sales, contests, sweepstakes, barter, advertising, and business offers.
20. User Comments
SparkleSwap does not investigate any posted user reviews, comments, suggestions or feedback for accuracy or truth. Users may be held legally responsible for damages suffered by other users or third parties as a result of their comments if they are legally actionable or defamatory. You agree that SparkleSwap is not legally responsible for any comments posted or made available on our Services by any users or third parties, even if that information is defamatory or otherwise legally actionable. SparkleSwap reserves the right to remove user comments or information that, in our sole judgment, violates this Agreement or negatively affects our Services.
a. If you receive software from us, its use is governed in one of two ways: If you’re presented with license terms that you must accept in order to use the software, those terms apply; if no license is presented to you, these Terms apply. We reserve all other rights to the software.
b. Any license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by SparkleSwap, in the manner permitted by these terms. You may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of that software.
c. We may automatically check your version of the software. We may also automatically download to your device or computer new versions of the software.
d. Any software is licensed, not sold. Unless we notify you otherwise, the software license ends when your Service ends. You must then promptly uninstall the software, or we may disable it. You must not work around any technical limitations in the software.
e. The software is subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users, and end use. Without limitation, you may not transfer the software or Service without U.S. government permission to anyone on U.S. government exclusion lists. You represent and warrant that you’re not on any of those lists or under the control of, or an agent for, anyone on those lists.
22. Interruption of Service
a. Your access and use of our Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of our Services or other actions that we, in our sole discretion, may elect to take.
b. You agree that we will not be liable to you or to any third party for any interruption of the Services or any part thereof.
23. Suspension and Termination of Services
a. We reserve the right to modify, suspend or terminate the Service, any user account or your access to the Service for any reason, without notice, at any time, and without liability to you.
b. You can cancel your account at anytime. Upon termination or cancellation, all licenses and other rights granted to you in these Terms will immediately cease.
c. If you have purchased a subscription membership to SparkleSwap, you may cancel it at any time, however the subscription shall remain active for the remainder of the original term agreed to and you will not be eligible for a refund of any subscription membership fees you have paid. The Subscription will automatically terminate at the end of the term unless you direct us otherwise.
d. We reserve the right to refuse access to the Service to anyone for any reason at any time.
e. If you or SparkleSwap terminate your account, you may lose any information associated with your account, including your User Content.
24. Third Party Links, Services and Content
b. You acknowledge that we are not responsible for such third party content or services and that we are not an agent of any third party, nor are we a direct party in any such transaction with a third party. Any such activities, and any terms associated with such activities, are solely between you and the applicable third party. Should you have any problems resulting from your use of any third party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we will not be responsible unless the problem was the direct result of our actions.
25. Electronic Communications
a. Although we may choose to communicate with you by regular mail, we may also choose to communicate with you by electronic means including, without limitation, email, telephone, text, SMS or by posting notices on our Services. When you use our Services, you consent to communicating with us electronically.
b. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
26. Electronic Transactions
a. Your use of the Services includes the ability to enter into agreements, including these Terms, and to make transactions electronically, including financial transactions, payments and purchases. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by such agreements, financial transactions, payments and purchases.
b. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on this site, including purchases, financial transactions, notices of cancellation, policies, contracts, and applications.
c. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
27. Third Party Social Networking
Violating the security of our Site, App and Services is prohibited and may result in criminal and civil liability. SparkleSwap may investigate incidents involving such violations and may involve, and will cooperate with law, enforcement if a criminal violation is suspected. Security violations include, without limitation, unauthorized access to or use of data or systems including any attempt to probe, scan, or test the vulnerability of the Service or to breach security or authentication measures, unauthorized monitoring of data or traffic and interference with service to any user, host, or network.
29. Copyright and Intellectual Property Policy
We respect the intellectual property rights of others. We reserve the right to remove any User Content on the Services which allegedly infringe upon another person’s copyright, trademark or other intellectual property right, and/or terminate, discontinue, suspend and/or restrict the account or ability to visit and/or use the Services or remove, edit, or disable any User Content on the Services which allegedly infringe upon another person’s intellectual property rights. We provide this policy pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act (“DMCA”).
A valid complaint under the DMCA must provide the following information in writing:
a. An electronic or physical signature of a person authorized to act on behalf of the copyright owner.
b. Identification of the copyrighted work that you claim has been infringed.
c. Identification of the material that is claimed to be infringing and where it is located on the Service.
d. Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and email address.
e. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law.
f. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
Federal law provides that if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
The above information must be submitted to SparkleSwap at: email@example.com
30. Disclaimers; No Warranties
a. ALL PRODUCTS AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW. SPARKLESWAP AND ITS PARENTS, SUBSIDIARIES, PARTNERS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, (COLLECTIVELY, THE “SPARKLESWAP PARTIES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. SPARKLESWAP DOES NOT MANUFACTURE, TAKE TITLE TO, STORE OR INSPECT ANY OF THE MERCHANDISE SOLD THROUGH OUR SERVICES. MERCHANDISE DISPLAYED ON OUR MARKETPLACE PLATFORM IS SOLD DIRECTLY BY INDEPENDENT SELLERS, AND SPARKLESWAP CANNOT, AND DOES NOT MAKE ANY WARRANTIES ABOUT THEIR QUALITY, SAFETY OR LEGALITY. ANY LEGAL CLAIM RELATED TO MERCHANDISE PURCHASED THOUGH OUR SERVICES MUST BE BROUGHT DIRECTLY AGAINST THE SELLER OF THE ITEM.
c. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (I) THE PRODUCTS AND SERVICES AVAILABLE THROUGH OUR SERVICES WILL MEET YOUR REQUIREMENTS, (II) OUR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (III) THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU USING OUR PLATFORM WILL MEET YOUR EXPECTATIONS.
d. THE SERVICES CAN INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. FURTHERMORE, THE INFORMATION OR SERVICES ON THIS SITE OR APP MAY BE OUT OF DATE. WE MAY MAKE CHANGES TO THE SERVICES, PRODUCTS AND INFORMATION ON THIS SITE OR APP, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY SERVICES OR PRODUCTS LISTED HEREIN AT ANY TIME WITHOUT NOTICE, HOWEVER WE HAVE NO OBLIGATION TO DO SO.
e. THE SPARKLESWAP PARTIES DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY PRODUCT DESCRIPTIONS OR OTHER CONTENT OFFERED AS PART OF THE SERVICES, ARE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
f. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. IF YOU DOWNLOAD ANY CONTENT FROM THE SERVICE, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY CONTENT THROUGH THE SERVICE.
g. WE RESERVE THE RIGHT TO RESTRICT OR TERMINATE YOUR ACCESS TO THE SERVICE OR ANY FEATURE OR PART THEREOF AT ANY TIME.
h. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME PARTS OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
31. Limitation of Liability
a. IN NO EVENT SHALL WE BE RESPONSIBLE TO, OR LIABLE TO, YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR ACCESS AND USE OF OUR SERVICES; (II) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE OUR SERVICES FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF OUR CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; OR (V) YOUR RELIANCE UPON OR USE OF OUR CONTENT OR THE COLLECTIVE WORK, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
b. THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED IN THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICES.
c. SPARKLESWAP DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS FOR PURPOSE OF ANY MERCHANDISE SOLD BY SELLERS THROUGH OUR PLATFORM OR SERVICES.
d. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND THEIR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS OR NON-PERFORMANCE OF THIRD PARTIES.
e. YOU AND WE AGREE THAT OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, SHAREHOLDERS, REPRESENTATIVES, AND AGENTS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE SUM OF $50 IN THE AGGREGATE.
f. YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO OUR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
g. CERTAIN STATE OR JURISDICTIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
32. Interaction With Others
a. You are solely responsible for determining the identity, suitability and for your interactions with the people you choose to engage with through the service. You understand that we currently do not conduct any background checks including, but not limited to, criminal, financial, sex offender or any other background checks or screenings. We make no representations or warranties as to the conduct of the people you choose to interact with. While not obligated to do so, SparkleSwap reserves the right at its sole discretion to conduct any criminal or other background check or screenings at any time and using available public records.
b. You assume all risk when using the services, including, without limitation, all risks associated with any online or offline personal interactions with others.
c. IN NO EVENT SHALL SPARKLESWAP, ITS EMPLOYEES, CONSULTANTS, EXECUTIVES OR OFFICERS BE LIABLE (DIRECTLY OR INDIRECTLY) FOR ANY LOSSES OR DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF A USER OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE INCLUDING, WITHOUT LIMITATION, THEFT, BODILY INJURY, EMOTIONAL DISTRESS, DEATH AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS WITH, CONTACT WITH OR PERSONAL INTERACTION WITH OTHER USERS.
33. Disputes Between Users
The SparkleSwap platform is a venue for connecting users of our Service and we are not a party to any contract or agreement between users. In the event that you have a dispute with another user, we encourage you to contact the other party and try to resolve the dispute amicably. Nevertheless, you release SparkleSwap and its affiliates, officers, directors, agents, subsidiaries, and employees from any and all claims, demands, or damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
a. You agree that you will be personally responsible for your use of the Service (including any sale or purchase of any items through the Service)and you agree to defend, indemnify and hold harmless SparkleSwap and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ and accounting fees and costs, arising out of or in any way connected with (i) any claims related to items sold through our Services, including for defective items, misrepresentations by Sellers, or items that caused physical injury and product liability claims; (ii) your access to, use of or alleged use of the Service; (iii) your violation of these Terms of Service or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iv) your infringement upon the property rights, intellectual property rights (copyrights and trademarks) or other rights of others; (v) your violation of any third party right, including without limitation publicity, confidentiality, or privacy right; (vi) any death, or serious physical or serious emotional harm, to you or any third party resulting from your use of the Services,or (vii) any disputes or issues between you and any third party.
b. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
a. By using the Services, (including any sale or purchase of any items through the Service) you release, to the maximum extent allowed by law, SparkleSwap, its officers, directors, employees, affiliates, and agents from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your use of the Services, and any interaction with other users through the Services, including without limitation, any death or serious emotional or serious physical harm.
b. Merchandise displayed on our marketplace platform is sold directly by independent sellers, and SparkleSwap cannot, and does not make any warranties about their quality, safety or legality. You release SparkleSwap from any claims related to items sold through our Services, including for defective items, misrepresentations by Sellers, or items that caused physical injury and product liability claims.
c. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
36. Our Remedies
a. You acknowledge that we may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement.
b. For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the courts of record of the State of Arizona, or a United States District Court for the State of Arizona, in or for the County of the company’s principal office. You consent to the jurisdiction of such court and waive any objection to the venue of any such action or proceeding in such court.
37. Dispute Resolution
THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. THIS AGREEMENT ALSO CONTAINS AN AGREEMENT THAT YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICE. EACH TIME YOU ACCESS OR USE THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE MANDATORY ARBITRATION PROVISION AND THE CLASS ACTION WAIVER YOU MAY NOT ACCESS OR USE THE SERVICE.
For any dispute you have with SparkleSwap, you agree to first contact us at firstname.lastname@example.org attempt to resolve the dispute with us informally. If SparkleSwap has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy as follows:
a. You and we agree that any claim or dispute at law or equity between us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to the Services will be resolved in accordance with the provisions set forth in this Legal Disputes section. Please read this section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
b. Applicable Law. You agree that the laws of the State of Arizona, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and us, except as otherwise stated in this Agreement.
c. Agreement to Arbitrate. You and we each agree that any and all disputes or claims between you and us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to our Services, or any products or services delivered, sold, offered, or purchased through our Services shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify.
d. Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OUR OTHER USERS.
e. Arbitration Procedures. Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this Agreement as a court would. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of this Agreement including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or this Agreement is void or voidable. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The arbitrator will decide the substance of all claims in accordance with the laws of the State of Arizona, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving our other users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
f. Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in the State of Arizona, in or for the County of the company’s principal office. You and we agree to submit to the personal jurisdiction of the courts located within Arizona for the purpose of litigating all such claims or disputes. You also agree that: (i) our Services shall be deemed solely based in the State of Arizona; and (ii) our Services shall be deemed passive Services that do not give rise to personal jurisdiction over us and our assigns, either specific or general, in jurisdictions other than the State of Arizona.
38. Law Enforcement
a. SparkleSwap is committed to cooperating with law enforcement while respecting each individual’s right to privacy. If SparkleSwap receives a request for user account information from a government agency investigating criminal activity, we will review the request to be certain that it satisfies all legal requirements before releasing information to the requesting agency.
b. Furthermore, under 18 U.S.C. §§ 2702(b)(8) and 2702(c)(4) (Voluntary Disclosure Of Customer Communications or Records), SparkleSwap may disclose user account information to law enforcement, without a subpoena, court order, or search warrant, in response to a valid emergency when we believe that doing so is necessary to prevent death or serious physical harm to someone. SparkleSwap will not release more information than it prudently believes is necessary to prevent harm in an emergency situation.
39. Statutory Rights; Notice To California Residents
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing, currently at: 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone, currently at (800) 952-5210 in order to resolve a complaint regarding our Site or to receive further information regarding use of our Site.
40. Amendments to this Agreement
We reserve the right to update, amend and/or change this Agreement at any time in our sole discretion and without notice. Updates to this Agreement will be posted here. Amendments will take effect immediately upon us posting the updated Agreement on our Services. You are encouraged to revisit this Agreement from time to time in order to review any changes that have been made. The date on which this Agreement was last updated will be noted immediately below this Agreement. Your continued access and use of our Services following the posting of any such changes shall automatically be deemed your acceptance of all changes.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
42. No Waiver
Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.
All covenants, agreements, representations and warranties made in this Agreement, as may be amended by us, from time to time, shall survive your acceptance of this Agreement and the termination of this Agreement.
44. Entire Understanding
If you have questions, comments, concerns or feedback regarding this Agreement or our Services, please contact us at email@example.com.
Last updated: June 10, 2019