Terms and Conditions
RETAIL USERS - TERMS AND CONDITIONS
This Terms and Conditions Agreement (hereinafter "Terms and Conditions") explain how the RepSpark Systems (hereinafter “RepSpark”) products, services, software and website located at www.repspark.com may be accessed and used and the terms and conditions that govern the legal obligations of the Retail User and RepSpark (hereinafter sometimes referred to as a “Party” or collectively as the “Parties”) for use of the Services as hereinafter defined:
PLEASE REVIEW THE TERMS AND CONDITIONS CAREFULLY AS THEY HAVE SIGNIFICANT LEGAL CONSEQUENCES. BY CLICKING ON ANY LINK, USING THE REPSPARK SERVICES OR LOGGING ON AS A USER, YOU ARE ACKNOWLEDGING AND AGREEING THAT:
• YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND TO THE TERMS AND CONDITIONS SET FORTH HEREIN.
• YOU AGREE AND CONFIRM THAT IF YOU ACCESS OR USE THE SERVICE ON BEHALF OF A REPSPARK OR OTHER ENTITY, YOU HAVE AUTHORITY TO BIND SUCH REPSPARK AND/OR ITS AFFILIATES. IF YOU DO NOT HAVE AUTHORITY OR DO NOT AGREE WITH THESE TERMS, DO NOT ACCESS THE WEBSITE OR USE THE SERVICES.
a) “Client” means an individual or customer that has entered a Subscription Agreement for the Services.
b) “Client Account” means the Client’s online sales platform, product information, order forms and other Client information accessed through the Services.
c) “Retail User” shall mean a third-party retail account that may be approved and granted access to the Client’s Account to view, order or purchase the Client’s products or to interact with the Client. Customers Users do not count toward the Client’s authorized User allocation. Client is responsible for submitting a written Retail User approval request to RepSpark to allow the Retail User access the Client Account.
d) “Services” means RepSpark’s online business software, mobile applications and modules as described in the Client’s Subscription Agreement.
e) “Subscription Agreement” shall mean the document setting forth the modules, terms, and Services to be provided to the Client.
2. Subscription Information. Upon approval, the Retail User shall be entitled to access the Client Account for the duration of the Term of the Client’s Subscription Agreement, unless otherwise terminated by request of the Client or pursuant to the Subscription Agreement terms and conditions. Retail User is solely responsible for maintaining its’ account information and keeping its passwords confidential. Retail Users should use passwords that are not easily reproduced or common to other Users. Retail Users should not use the same password that they use to access other unrelated websites, accounts or services. Retail Users must notify RepSpark immediately of any unauthorized use of the Retail User’s account. RepSpark is not liable for any losses (whether actual, consequential, punitive or foreseeable) caused by any unauthorized use of the Retail User’s account. By providing RepSpark with your information and approved Retail User names and/or email address, Retail User consents to receive notices sent to those email address(es). RepSpark may also use the email address(es) for Service updates, enhancements, changes or revisions to the Terms and Conditions, marketing, promotions or special offers. Retail User may opt out or change your email preferences by notifying RepSpark in writing of its preferences, with the understanding that opting out of receipt of communications may result in not receiving email messages regarding Service updates, Service changes, enhancements, improvements or special offers.
3. Fees. There are no fees or costs incurred for any Retail Users to access the Client’s Account.
4. Mobile Application Access Services.
Retail User may access to the Client’s Account via an application (“RepSparkGo App”) accessed by tablet or other mobile device such as an Apple or Android smart phone. To use the RepSparkGo App, the Client and Retail User must download the RepSparkGo App to a compatible mobile device. RepSpark makes no representations or warranties that any devices used by Client or its Retail Users will be compatible with the RepSparkGo App. Client and its Retail Users must comply with any terms of service of the Apple Store or Google Play in order to download the RepSparkGo App. Upon downloading and using the RepSparkGo App, Client and its Retail Users are agreeing to these Terms and Conditions and RepSpark grants Client a non-exclusive, non-transferable, revocable license to use the RepSparkGo App to use the Services. RepSpark retains the right to terminate or cancel any use of the RepSparkGo App. RepSpark reserves all rights not otherwise granted herein.
Client and Retail User may not: (i) allow other non-authorized or non-allocated third party users access to Client’s Account or subscription information to access or use the RepSparkGo App; (ii) modify, reverse engineer, rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Services provided by the RepSparkGo App to any third party that is not an authorized or allocated Retail User or the Services subject to a Subscription Fee; (iii) make copies of the RepSparkGo App; (iv) intentionally attempt to circumvent, disable, damage or otherwise interfere with any security features of the RepSparkGo App that prevent unauthorized use of the RepSparkGo App. Retail User acknowledges that RepSpark may from time to time provide updated versions of the RepSparkGo App, and Retail User consents to the automatic upgrade of the same to the Retail User’s mobile device(s).
5. Data Exchange Service. RepSpark is a data aggregator of information provided by third parties and its’ Clients. RepSpark does not review any content or other information for accuracy nor does it provide editing or control over the information, statements, services, products, pricing, offers or other content provided by third parties or Client, provided however, that RepSpark reserves the right to review, edit or remove any information or content that violates RepSpark’s Terms and Conditions or any federal, state or agency laws, rules or regulations. The Services provided by RepSpark are solely for the purpose of the exchange of information between Client, its Retail Users and other authorized users for the purpose of promoting or selling the Client’s products and providing material and information the Client desires to make available to its Retail Users and other authorized users. Any purchase, sale, commission or other transactions between the Client and a Retail User shall be subject to a separate agreement between the respective Client and Retail User. RepSpark is not a party to any such transaction and it shall have no liability to the Client or Retail User for such transactions. The Client and Retail User shall make all reasonable inquiries regarding the products, materials, packaging, pricing, deliveries, costs, ownership, intellectual property rights and such other information to the transaction and shall comply with all import/export laws pertaining to the purchase, sale and delivery of any products accessed through RepSpark’s website, app, software or Services, including but not limited to regulations of the Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency. Client shall not export, or allow the export or re-export of the Service in violation of any such laws or regulations. By using the Service, Retail User agrees, represents and warrants that it is not subject to or located in any country that restricts or otherwise prohibits the transactions contemplated with the use of the RepSpark Services or website, software or app. RepSpark does not generate any Client information or material, and makes no representations or warranties regarding any Client information available to Retail User or third parties. RepSpark is not a party to any purchase or sale of Client’s products and makes no representations as to the accuracy of any Client information posted or provided on the RepSpark website or app. RepSpark may track and analyze information generated through the RepSpark software system website and app in connection with the Service for the purpose of gathering information to improve the RepSpark software and Services, which may include, but is not limited to Client product information, customer interactions, order information, profile views, customer click through, Retail User information and website link utilization. RepSpark may share such non-confidential information or redact identifying information from confidential information with third parties to fulfill some or all of the Services for the purpose of increasing the effectiveness and efficiency of the RepSpark software and Services. Any links to third party websites are not controlled by RepSpark and RepSpark is not responsible for any third-party services, information, content, fees, costs to be incurred or technical issues that may arise from the use of such third-party websites. RepSpark does not warrant or represent that the third-party website, products or services will function as intended and Client expressly waives any liability resulting from its use of any third-party website.
6. Proprietary Rights. Retail User acknowledges and agrees that corrected or replacement software and associated documentation remain the property of RepSpark and constitute a trade secret of RepSpark. Further, all content, logos, data, graphics, data compilations, documents, software, images, icons and use of the foregoing are the trade dress, copyright, trademarks and intellectual property of RepSpark and may not be used by Retail User without the prior written authorization of RepSpark.
7. Representations and Warranties. Retail User represents and warrants that:
(a) It has the legal capacity to enter into contracts;
(b) It’s use of the website, app and Services will comply with all applicable laws and regulations, including without limitation privacy and data protection laws;
(c) It acknowledges that the Client must provide a written request to allow access by Retailer User to the Client’s Account.
8. Confidentiality. RepSpark, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use, divulge, disclose, or communicate in any manner to unauthorized third parties, any information that is proprietary or confidential to Retail User. RepSpark and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will survive the termination or expiration of the Subscription Agreement. Confidential information does not include: (a) any information previously known to RepSpark; (b) information that is or becomes generally known to the public, from no act or breach of confidentiality requirements; (c) is disclosed to RepSpark by a third party not subject to disclosure restrictions; or (d) is independently developed by RepSpark confirmed by written documentation pre-dating the date of disclosure or access to the confidential information.
Retail User shall not use any confidential information of RepSpark other than for the permitted use of the Services related to the Client’s Account as set forth in its Subscription Agreement or these Terms and Conditions. Retail User shall notify RepSpark in writing immediately upon discovery of any unauthorized use or disclosure of confidential information and shall cooperate with RepSpark to restrict or cease the disclosure and use of the confidential information. If Retail User is legally compelled to disclose any of the confidential information, Retail User will (i) immediately notify RepSpark prior to such disclosure to allow RepSpark an opportunity to seek a protective order to prevent such disclosure, and cooperate with RepSpark in seeking such protective order use of the confidential information.
RepSpark may, at its sole option, for a period of time after termination or expiration of the Client’s Subscription Agreement, retain records, notes, documentation, material, product information, interactions, orders, content, images, price lists and other such information provided by Client during the Term of the Subscription Agreement, including any confidential or proprietary information of Client which may or may not include transactions with Retail User. RepSpark shall not be obligated to and does not have the ability to export any such data and information to Retail User. RepSpark may, at its sole option, and at any time after the termination or expiration of the Client’s Subscription Agreement delete or destroy such data and information. Retail User is strongly encouraged to back up any of its data and information prior to termination or expiration of the Client’s Subscription Agreement or termination of its relationship with the Client.
9. Warranties, Disclaimers and Exclusive Remedies
RepSpark does not guarantee that the Services, software and programs will perform error-free or uninterrupted, or that RepSpark can correct all Services errors. Retail User acknowledges that RepSpark does not control the transfer of data over communications facilities, including the internet, and that the service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. RepSpark is not responsible for any delays, delivery failures, or other damage resulting from such interruptions or third-party service issues.
RepSpark does not represent, warrant or guarantee that any information, products, content, images or other information provided by Client or made available through the Service or portrayed by the Client Account is accurate or available when transmitted by the Client, and RepSpark disclaims all liability for the sale of Client’s products on and through the Service. RepSpark does not guarantee that the Retail User will find, purchase or obtain products suitable to their requirements, specifications or needs. RepSpark does not warrant the quality or accuracy of the products provided by Client through the Services. RepSpark is not responsible or liable for any acts, errors or omissions of any Retail Users or other third parties accessing Client’s products or content.
THE SERVICE, ITS CONTENT AND THE PRODUCTS OF REPSPARK, PROVIDED TO CLIENT AND ITS AUTHORIZED USERS, RETAIL USERS AND THIRD PARTIES, ARE PROVIDED “AS IS” “WHERE IS” AND “AS AVAILABLE.” EXCEPT AS OTHERWISE PROVIDED HEREIN, REPSPARK DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, RELATING TO THE CONTENT, INFORMATION, IMAGES, DESCRIPTION, PRODUCTS AND/OR SERVICES OF REPSPARK, AND THE PRODUCTS OF THE CLIENT TO ITS AUTHORIZED USERS, RETAIL USERS AND OTHER SUCH THIRD PARTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. REPSPARK MAKES NO GUARANTEE OF THE INFORMATION CONTAINED IN THE SERVICES, PRODUCTS, WEBSITE OR REPSPARKGO APP OR THAT THE INFORMATION IS UP-TO-DATE, ACCURATE OR COMPLETE. REPSPARK DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT LOSS OF YOUR DATA WILL NOT OCCUR OR THAT THE SERVICE MAY EXPERIENCE OUTAGES, INTERRUPTIONS OR INACCESSABILITY AT ANY GIVEN TIME. WHILE REPSPARK EMPLOYS VIRUS PROTECTION AND SECURITY PROTECTION SOFTWARE TO PROTECT THE SOFTWARE AND SERVICES, REPSPARK MAKES NO GUARANTEE, REPRESENTATION OR WARRANTY THAT THE SERVICE OR SOFTWARE WILL REMAIN FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT HAS CONTAMINATING OR DESTRUCTIVE PROPERTIES AND BY YOUR USE OF THE SOFTWARE AND SERVICES, YOU ARE ASSUMING THE RISK OF LOSS BY SUCH CAUSES.
10. Default. The occurrence of any of the following shall constitute a material default under the Terms and Conditions:
a) Retail User allowing unauthorized access to Retail User’s account.
b) Any other material breach of the Terms and Conditions.
In the event of any Default, the breaching Party shall have thirty (30) calendar days to cure any such breach before the Retail User’s access to the Client’s Account may be terminated or suspended.
11. Digital Millennium Copyright Act Complaints.
RepSpark will not permit the infringement of third-party intellectual property or copyrights and provides the owner of such rights to file complaints for alleged infringement under the Digital Millennium Copyright Act of 1988 (hereinafter “DMCA”). If you believe your copyright or trademark has been infringed, you may notify us of such claims with the following required written information:
(a) Identification of the copyrighted work that has been infringed with a link or other documentation showing owner of the work;
(b) The location of the copyright work on the RepSpark website or software by submission of the url or other identifying information;
(c) The name, address, telephone number and email address of the person or entity making such claim;
(d) an electronic or physical signature of the owner or registrant of the copyright or the agent authorized to act on the owner’s or registrant’s behalf; and
(e) A statement, made under penalty of perjury, that the above information is accurate and that you are the copyright owner, registrant or are a person authorized to act on behalf of the owner or registrant.
Such information should be submitted to:
Attn: DMCA Complaints
751 S. Weir Canyon Road
Anaheim, California 92808
Email:________________@ Please place “DMCA Notice” in the Subject Header.
FILING A KNOWINGLY FALSE CLAIM YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES UNDER FEDERAL LAW
13. Limitation of Liability
Neither Retail User or RepSpark shall be liable to the other for any indirect, incidental, special, punitive, or consequential damages. Further, RepSpark’s liability to Retail User shall not exceed the total cost of the Subscription Fees paid to RepSpark by the Client.
14. Marketing. RepSpark may use Retail User’s name, trademark, copyright or other intellectual property rights (hereinafter “Retail User IP Rights”) to identify Retail User on RepSpark’s website and/or marketing materials. RepSpark may issue a press release containing Retail User’s name and Retail User IP Rights, related to the Services provided pursuant to the Subscription Agreement of the Client and these Terms and Conditions. RepSpark shall promptly remove the use of the Retail User IP Rights after termination of its access to the Client’s Account or expiration of the Client’s Subscription Agreement or upon the written request of Retail User.
15. Entire Agreement. These Terms and Conditions contains the entire terms and conditions of between the Parties, there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of these Terms and Conditions. These Terms and Conditions supersedes any prior Terms and Conditions, written or oral agreements between the Parties.
16. Notice. Any notice or communication required or permitted under these Terms and Conditions shall be sufficiently given if delivered in person or by certified mail, return receipt requested, electronic delivery with delivery confirmation (such as email) to the addresses set forth in the initial authorization information provided to RepSpark by the Client or Retail User or to such other address as one Party may have furnished to the other in writing.
17. Waiver of Contractual Right. The failure of either Party to enforce any provision of the Terms and Conditions shall not be construed as a waiver or limitation of that Party's right to subsequently enforce and compel strict compliance with every provision of these Terms and Conditions.
18. Severability. The invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of any other provision.
19. Default. In addition to any and all other rights the Parties may have available according to law or as set forth in these Terms and Conditions, if a Party fails to substantially perform any provision of the Subscription Agreement or the Terms and Conditions, the non-defaulting Party may terminate the business relationship by providing written notice to the defaulting Party. This notice shall describe with sufficient detail the nature of the default and what course of action may be taken to cure the default. The Party receiving such notice shall have thirty (30) days from the effective date of such notice to cure the default(s). Unless waived by the Party providing notice, the failure to cure the default(s) within such time period shall result in the termination or suspension of the Retail Users access to the Client’s Account. Retail User acknowledges and agrees that its access to the Client’s Account is conditioned on the Client remaining in compliance with the Terms and Conditions and its Subscription Agreement.
a. Any dispute, controversy or claim arising out of or relating to the Terms and Conditions or the performance by the Parties shall be resolved by binding arbitration held in Orange County, California. The Commercial Arbitration Rules of the American Arbitration Association are hereby incorporated by reference. The interpretation and enforceability of this paragraph shall be governed exclusively by the Federal Arbitration Act, 9 U.S.C. § 1-16. If the matter in controversy (exclusive of attorney fees and expenses) shall appear, as at the time of the demand for arbitration, to exceed $50,000.00 then the panel to be appointed shall consist of three neutral arbitrators. One arbitrator shall be appointed by a Party to the dispute and one arbitrator shall be appointed by the other Party to the dispute within thirty (30) days after the commencement of the arbitration proceeding. The third arbitrator shall be appointed by mutual agreement of the two selected arbitrators and shall be experienced in corporate contractual matters relating to transactions of the nature contemplated by the Subscription Agreement. If, however, the matter in controversy (exclusive of attorney fees and expenses) shall appear, as at the time of the demand for arbitration, to be less than $50,000, then one neutral arbitrator shall be mutually agreed upon by the Parties.
b. The arbitrator(s) shall allow such discovery as the arbitrator(s) determine appropriate under the circumstances and shall resolve the dispute as expeditiously as practicable. The Federal Rules of Civil Procedure (the "FRCP") are hereby incorporated by reference for purposes of the discovery process; provided that the FRCP may be waived by the Parties by written agreement, or by any appointed arbitrator. The arbitrator(s) shall give the Parties written notice of the decision, with the reasons therefor set out, and shall have thirty (30) days thereafter to reconsider and modify such decision if any Party so requests within ten (10) days after the decision. Thereafter, the decision of the arbitrator(s) shall be final, binding, and conclusive with respect to all Parties, including Parties who have failed or refused to participate in the arbitration process. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction over the matter.
21. No Joint Venture or Partnership. These Terms and Conditions control the relationship of the Parties relating to the Services and shall not be construed to create a joint venture or partnership between the Parties.
22. Successors and Assigns. These Terms and Conditions shall be binding and shall inure to the benefit of the Parties' respective heirs, successors, assigns, executors, or personal representatives.
23. Transfers and Assignment. The obligations of each Party pursuant to these Terms and Conditions may not be assigned without the written consent of the Parties hereto.
24. Governing Law; Venue. The Terms and Conditions shall be governed and construed according to the laws of the State of California, without giving effect to its choice of law provisions. The Parties further agree that proper venue and jurisdiction for any dispute in connection with the Terms and Conditions and provision of Services shall be heard in Orange County, State of California.