Description of use
Spark factory.io (from here on known as Spark Factory provides digital marketing services such as search engine optimization, site profile services, Search Analytics, Blogs, Websites, Social Media Strategy & paid marketing strategy & management (the “Service”). Users of the Service (from here on are known as “Members” or “Registrants” also understand that the Service may include certain communications from Spark Factory, such as service announcements, administrative messages, and that these communications are considered part of Spark Factoryfree registration and paid subscriptions. Any new features that augment or enhance the current
Accuracy of Data
Although we strive for 100% accuracy at all times, Spark Factory has no control over search engines, search engine results, third party APIs, and other websites where data is retrieved and therefore, we DO NOT guarantee 100% accurate audit results and search engine rankings. In addition, our auditing software works best with website code that is W3C validated. Any code that is not W3C validated is subject to varied results.
The customer shall provide free and clear access to all digital initiatives in order for Spark Factory to perform its work. For example, should the customer not provide access to social media accounts, Spark Factory will not be able to perform the work and the customer will forfeit any work for that billing period. No rainchecks or carry-overs will be applied. It is the customer’s responsibility to make sure Spark Factory has all the necessary access to complete the tasks. Should the customer have low-t0-text to HTML issues, text-based content will be required to ensure the customer is in compliance with Google Standards. Should customers hinder such insertion, the client will be held in non-compliance. For Spark Factory to create text-based content our fee is $150 per 750-word page.
Customer and Spark Factory agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Bucks County, Pennsylvania and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of Pennsylvania sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of Pennsylvania or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.
At our sole discretion, we may apply a prorated amount towards your next month’s service fees in the event of sustained non-planned or non-emergency service outages. Unless the account is Websites Design, SEO, Consulting Services, Paid Support Services, PPC Management or Custom Programming, etc.
Terminated for violation of our terms, in such case, no refund will apply.
In the case of the custom web, application development, Search Engine Optimization or any marketing services contained herein on our website, the cool own period is 48hrs before the start of work. Once work is started, we have a no refund policy. Services are performed “as-is”, “Work-for-Hire”.
All design services, marketing, consulting and paid support services (ie: service work, maintenance ), whether billed hourly or as fixed-price packages are NON-REFUNDABLE, ‘Work-for-hire’ according to services agreement unless written notification is received within 48 hours from purchase. In the event, you do not have a signed service agreement or your agreement has expired, the first surviving terms of this agreement will apply, and then this general policy. Copyright to the finished assembled work of web page(s) produced by Spark Factory owned by Spark Factory until final payment is made. Upon final payment of this contract, the client is assigned rights to use as a website the design, graphics, and text contained in the finished assembled website. Rights to the source code, work‐up files, and computer programs are specifically not transferred to the client and remain the property of their respective owners. Outstanding accounts will have files removed until the final payment is made.
Customer shall indemnify and hold harmless Spark Factory (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Spark Factory as a result of any claim, judgment, or adjudication against Spark Factory related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Customer to Spark Factory (the “Customer Content”), or (b) a claim that Spark Factory ’s use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Spark Factory must: (i) give Customer prompt written notice of a claim; and (ii) allow Customer to control, and fully cooperate with Customer in, the defense and all related negotiations.
Disclaimer of All Other Warranties – Spark Factory DOES NOT WARRANT THAT THE SEO SERVICES WILL MEET THE CUSTOMER’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, Spark Factory PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
Limited Liability – IN NO EVENT SHALL Spark Factor yet al BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THERE SHALL BE NO REFUNDS. Spark Factory MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
Customer Representations – Customer makes the following representations and warranties for the benefit of Spark Factory :
Customer represents to Spark Factory and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Spark Factory are owned by Customer, or that Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Spark Factory and its subcontractors from any claim or suit arising from the use of such elements furnished by Customer.
Customer guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Spark Factory for inclusion on the website above are owned by Customer, or that Customer has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Spark Factory and its subcontractors from any liability or suit arising from the use of such elements.
From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Spark Factory and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer’s exercise of Internet electronic commerce.
The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Spark Factory and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date.
Force Majeure – Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
Relationship of Parties – Spark factory, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. The customer does not undertake by this Agreement, or otherwise, to perform any obligation of Spark factory, whether by regulation or contract. In no way is Spark Factory to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding.
Notice and Payment – Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party, mailed by certified, registered or Express mail, return receipt requested or by Federal Express. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
Jurisdiction/Disputes – This Agreement shall be governed in accordance with the laws of the State of Pennsylvania. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Pennsylvania including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
Agreement Binding on Successors – The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
Assignability – Customer may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Spark Factory. Spark Factory reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
Waiver – No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
Severability – If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision, and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
No Inference Against Author – No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
Spark Factory shall not be responsible for any damages your business may suffer. Spark Factory makes no warranties of any kind, expressed or implied for services we provide. Spark Factory disclaims any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, no deliveries, wrong delivery, and any and all service interruptions caused by Spark Factory and its employees.
Arbitration/Mediation: If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in Philadelphia County, Pennsylvania.
Litigation: In all other circumstances, the parties specifically consent to the local, state and federal courts located in the County of Bucks, State of Pennsylvania. The parties waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.
Limitation of Liability
Except in jurisdictions where such provisions are restricted, in no event will Spark Factory be liable to you or any third person for any direct, indirect, consequential, exemplary, incidental, special or punitive damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Spark Factoryhas been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Service; (ii) the cost of procurement of substitute goods and services resulting from your inability to access or obtain any goods, data, information or services through or from the Service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; or (v) any content posted on the Website or transmitted to Registrants or Members; or (vi) any inaccurate or out-of-date content produced by the tools or published in the guides or blog, or Website; or (vii) any other matter relating to the Service. Notwithstanding any provision to the contrary, Spark Factory SEO’s liability to you for any cause whatsoever, and regardless of the form of the action, will at all times be limited to the amount paid, if any, by you to Spark Factory Digital in the twelve (12) months prior to the claimed injury or damage.
We respond expeditiously to notices of claimed copyright infringement and terminate users or account holders who are “repeat infringers.” Pursuant to the Digital Millennium Copyright Act, we respond to notices of copyright infringement if they conform with the requirements of 17 USC 512(c).
Disclosure to law enforcement
Spark Factory will disclose any subscriber information to law enforcement agencies without further consent or notification to the subscriber or clients upon lawful request from such agencies. We will cooperate fully with ALL law enforcement agencies.
Changes to the TOS
Spark Factory reserves the right to revise its policies at any time without notice.