As always, if you have any questions or concerns about our handling of your personal information, you may contact our privacy officer at [email protected]
3. Spark Hire Services - What are the Spark Hire Services?
3.4 Video Content and Services – How and when do you record videos?
4. Pricing, Payments, and Billing – How and when will I be billed for Spark Hire Services?
5. Customer Conduct
6. Objectionable Content – What if I find content to be objectionable?
7. Intellectual Property
8. DMCA Policy
9. Data Breach
10. Resale of Services
12. Disclaimer of Warranties
13. Third Party Links and Products
14. Limitations of Liability
15. Exclusions and Limitations
17. General Terms
“Account” means “Spark Hire Account.”
"Apps" means any applications developed by Spark Hire.
"App Services" means any content and services provided by Spark Hire through its Apps.
"Consumer" means any individual or entity that uses any of the Spark Hire Services. Where applicable, the term "Consumer" shall encompass all Spark Hire Customers.
"Content" means all material, whether publicly posted or privately transmitted, available on or through any of the Spark Hire Services including, but not limited to, Customer Content and Spark Hire Content.
“Customer Content” means any Content uploaded to and/or created through the Spark Hire Services by a Spark Hire Customer including, but not limited to, content submitted to an Employer Customer or Staffing Customer.
“Employer Customer” means an entity using Spark Hire Services that is seeking to hire an individual as an employee and/or independent contractor to be employed by it directly.
“GDPR” means the European Union’s General Data Protection Regulation.
"Individual Customer" means an individual using Spark Hire Services for themselves (as opposed to an entity) and includes, but is not limited to, a job seeker using the Spark Hire services to connect with an Employer Customer or Staffing Customer, an individual person submitting content to an Employer Customer or Staffing Customer through the Spark Hire Services, or an individual person participating in a video interview as a guest party.
“Profile Video” means a promotional video created by an Individual Customer to promote themselves as a candidate employee and/or independent contractor. It is not an interview. The Individual Customer completes this independently and on their own.
“SMS” means generally messages sent directly to an individual’s mobile device, regardless of whether any particular message might be technically considered text, MMS, or SMS messaging.
"Software" means any necessary software used in connection with the Spark Hire Services.
“Spark Hire Account” means an account associated with a Spark Hire Customer who uses or has used Spark Hire Services. In the case of Employer or Staffing Customers, the Spark Hire Account will be the primary account used by the Employer or Staffing Company with individuals each having a unique Sub Account associated with the primary Spark Hire Account.
“Spark Hire Content” means any Content excluding Customer Content and Video Content in which Spark Hire does not participate.
“Spark Hire Customer” means any person who uses or has used Spark Hire Services including, but not limited to, Employer Customers, Individual Customers, and Staffing Customers.
"Spark Hire Services" means the suite of features, products and services offered through Spark Hire, its Apps, its App Services, the Website, and the Website Services.
"Spark Hire Trademarks" means any trademarks, tradenames, logos, and other commercial designs of Spark Hire or licensed to Spark Hire, whether or not formal registration exists including, but not limited to, “Spark Hire.”
“Staffing Clients” means third-party employer clients of Staffing Customers.
"Staffing Customer" means a staffing company using Spark Hire Services that provides staffing services to their own Staffing Clients.
"Strategic Partners" means those trusted partners that Spark Hire employs, engages, or retains to perform functions and/or provide services on its behalf.
"Sub Accounts" means subsidiary accounts created for or by an Employer Customer or Staffing Customer (“such as a consultant group or employer”) under its primary account. As an example, each individual from an Employer or Staffing Customer organization accessing a Spark Hire must be assigned their own Sub Account. Multiple people within the same organization may not share Sub-Accounts.
"Username" means the valid email address provided by and/for each individual person accessing Spark Hire Services to be used as their username or login identification.
“Video Content” means any video content created by or associated with any Spark Hire Customer accessible on and through Spark Hire Services including, but not limited to, Profile Videos, Video Questions, Video Interviews, and Welcome Videos.
“Video Interview” means an interview completed through Spark Hire Services using a video or “web” camera that an Employer Customer or Staffing Customer requests an Individual Customer complete. A Video Interview may involve an Individual Customer alone or with other participants from an Employer Customer or Staffing Customer. A Video Interview may be pre-recorded by an Individual in response to questions or occur live at which time it would be recorded.
“Video Question” means a question recorded in video and audio that can be sent to potential employee and independent contractor candidates by an Employer Customer or Staffing Customer.
"Website" means all of the content, information and services (in any format whatsoever) accessible through the World Wide Web at the domain name sparkhire.com.
"Website Services" means the services provided by Spark Hire through the website at the domain name sparkhire.com, hire.li, and any of our other websites that may be used from time to time.
(C) As otherwise required by law.
3.Spark Hire Services.
3.1 Spark Hire provides Internet based services through which employers and staffing companies seeking employees and independent contractors can efficiently and effectively communicate with, review, and interview candidates.
3.2 Spark Hire provides Spark Hire Services through its Apps and Website, and all other suite of features, products and services offered through Spark Hire from time to time.
3.3 Spark Hire will not sell any customer or consumer content or information to any third party.
3.4 Video Content and Services.
Spark Hire provides its Spark Hire Customers a variety of video options and tools to use in association with the Spark Hire Services. If you choose to use your webcam and microphone through Spark Hire Services for audio and video communications, you authorize Spark Hire to allow others to see and hear you through the audio and video obtained through these devices. You also authorize Spark Hire to record and store such information on its servers in your Account.
Spark Hire will not use your recorded content for any purpose unrelated to your Account. Of course, any individuals to whom you display such content will be able to hear and see such content.
Apart from those to whom you authorize access. Spark Hire will not share or provide access to your content to any third party absent a subpoena or court order. And, should Spark Hire ever be subpoenaed for content associated with your Account, Spark Hire shall provide you notice and an opportunity to file a motion objecting to any disclosure.
Given you will be using Spark Hire Services for employment related purposes, you agree not to use any content or information obtained in violation of any applicable laws. Spark Hire cannot advise you or provide you guidance on these laws.
Individual Customers are expressly prohibited from creating their own recordings of Video Interviews. Spark Hire employs reasonable measures to prevent any unauthorized recording of Video Interviews.
Spark Hire may add additional types of video content from time to time.
3.5 No Guarantees of Employment.
Spark Hire is not an employment agency. Spark Hire does not make any representations as to the qualifications of any individual, entity or employer.
Additionally, where an individual, entity, group or employer successfully secures employment, Spark Hire makes no guarantees or representations as to the satisfaction of such employment.
Additionally, Spark Hire does not guarantee that any individual or entity will find employment or an employee through Spark Hire Services.
3.6 Deletion of Content.
Where an Individual requests that any video interviews and/or related information be deleted pursuant to these Terms, our Privacy and Security Policy, and/or pursuant to governing law (eg the GDPR), Spark Hire, as the data processor, will send you, as the data controller, the request to approve or deny. If you approve the request, we shall comply with the request. If you deny the request, we shall inform the individual and provide information on how to proceed further (namely, we will explain that the dispute remains with you and not Spark Hire).
4.Pricing, Payments, and Billing
4.1 Pricing. Spark Hire reserves the right to change the prices for any of the Spark Hire Services including, but not limited to, any prices associated with subscription service plans at any time. Should Spark Hire change any pricing, Spark Hire shall provide its existing Spark Hire Customers with at least thirty (30) days notice consistent with Section 17.17.
4.2 Method of Payments. To purchase Spark Hire Services, you must provide Spark Hire with a valid credit card or checking account debit information. Spark Hire presently accepts payments from Spark Hire Customers using a secure connection. Spark Hire reserves the right to choose the forms of payment accepted for Spark Hire Services, to refuse select forms of payment, to refuse service to anyone, and to add or remove particular third parties from whom it will accept payments.
4.3 Advance Billing.
Spark Hire bills in advance for Spark Hire Services on a recurring basis. Spark Hire may, in its sole discretion, provide you with different subscription service plans from which to choose, depending on your payment method, account history, and/or account preferences.
By choosing your subscription service plan, method of payment, and applicable billing cycle, you authorize Spark Hire to use the form of payment specified in your account preferences, settings, or an executed order form with Spark Hire to bill you automatically in advance for the chosen Spark Hire Services on a recurring basis for each applicable billing cycle until your account has been cancelled and the applicable subscription plan has concluded.
Should you decide to cancel your account subject to 5.11, your account will be effectively cancelled after the conclusion of your then-existing service plan.
4.4 Renewals. For the convenience of its Spark Hire Employer and Staffing Customers, Spark Hire automatically renews subscription plans. Should you wish to cancel your Account and not renew your subscription plan, you must provide sufficient notice as specified in 5.11. You understand that Spark Hire shall have no obligation to reimburse any portion of payment for a subscription plan renewed because you did not provide timely notice of intent to cancel your Account.
4.5 No Refunds. Spark Hire does not refund purchased services. Consequently, there will be no refunds for periods where Spark Hire Services were unused should your account be cancelled including, but not limited to, period of dormancy or time remaining on subscription plans. Moreover, should you enter into a subscription plan wherein you make monthly, quarterly, semi-annual, annual payments, or another specified billing frequency, you agree to make the payments for the entire term of your subscription plan whether you use or cancel the Spark Hire Services prior to the expiration of your subscription. Consequently, Spark Hire cannot cancel or refund payments associated with subscription plans.
4.6 Timing of Payments. Payments must be authorized and/or made at the time of purchase. Where you enter into a subscription plan with monthly or periodic payments, the payments will be made automatically in advance of each month or period.
4.7 Taxes and Other Excluded Fees. Payments for Spark Hire Services do not include taxes, levies, withholdings, or duties imposed by taxing authorities or other applicable third parties. You are responsible for the payment of all such taxes, levies, withholdings or duties.
4.8 Insufficient Funds and Chargebacks. Spark Hire processes all payments to it through a third party. Should your payments be cancelled or reversed because of insufficient funds or chargebacks, you will be responsible for any charges and/or penalties implemented by these third parties to you and/or Spark Hire.
5.1 Lawful Purposes.
Spark Hire Services shall be used for lawful purposes only.
You hereby affirm that your organization is an equal opportunity employer, offering employment without regard to race, color, religion, sex, national origin, age, sexual orientation, disability, citizenship, or any other protected class of individuals unless legally required.
You shall be responsible for complying with all applicable regulations, statutes, laws and guidelines relating to hiring, interviewing, and recruiting employees as well as any matters related thereto.
5.2 Accurate Information.You agree to provide Spark Hire with true, accurate and current information as requested when registering for Spark Hire Services and/or purchasing products from Spark Hire. You must continue to provide accurate information in using Spark Hire Services. This includes, but is not limited to, accuracy in the content posted by the Employer or Staffing Customer as well as the number of unique individuals accessing the Account through Sub-Accounts.
5.3 At time of registration, you must provide certain information that identifies you to other Spark Hire Customers. In doing so, you may not violate a third party's intellectual property rights or use names that happen to be offensive or inappropriate.
5.4 Consent for SMS Messages
When inviting an Individual Customer to use Spark Hire Services, you acknowledge having obtained the Individual Customer’s consent to receive SMS messages prior to sending the Individual Customer any SMS messages containing references to Spark Hire, its Spark Hire Services, or its website at sparkhire.com. Further, prior to directing Spark Hire to send any communications to the Individual Customer, you acknowledge that you obtained the Individual Customer’s explicit consent to receive communications from Spark Hire (as your agent) through SMS messages. You further represent that the consent you obtained from the Individual Customer complies with all applicable laws relating to SMS messages in the United States, your jurisdiction, and the jurisdiction of the Individual Customer
5.5 You shall be solely and entirely responsible for any and all use of the Spark Hire Services through your Account. Consequently, we recommend and require that:
(A) You not permit any other person to use your Spark Hire Account, except for those authorized individuals provided with their own Sub Accounts;
(B) You do not assign or transfer your Account or its login information to any other person or entity; and,
(C) You promptly inform Spark Hire of any apparent breach of security, such as loss, theft, or unauthorized disclosure or use of a Spark Hire Account or its login information.
5.6 Circumventing of Accurate Billing Prohibited. You agree that you shall not circumvent or attempt to circumvent accurate billing for Spark Hire Services. In particular, you shall not create Customer Content that exceeds the geographic or subject matter of a specific job opening. For example, you may not use a single job opening to solicit applicants for more than a single position in a single jurisdiction.
5.7 You agree that you shall not use Spark Hire Services for any of the following:
5.7.1 Intentionally or unintentionally violating any applicable local, state, national, or international law, or any rules or regulations thereunder;
5.7.2 Intentionally violating any intellectual property rights of a third party;
5.7.3 Disseminating or posting harmful content including, without limitation, viruses, Trojan horses, worms, spyware, or any other computer programming routines that may damage, interfere with, secretly intercept, or seize any system, program, data, or personal information;
5.7.4 Disseminating materials that are lewd, offensive, inflammatory, harassing, threatening, defamatory, or otherwise objectionable as determined by Spark Hire in its sole discretion;
5.7.5 Posting or transmitting, or causing to be posted or transmitted, via the Spark Hire Services any nudity;
5.7.6 Posting or transmitting, or causing to be posted or transmitted, via the Spark Hire Services any spam;
Spark Hire maintains a strict policy forbidding any spam or misuse of email services within its Spark Hire Services.
5.7.7 Posting or transmitting, or causing to be posted or transmitted, via Spark Hire Services any materials advertising any business other than Spark Hire;
Additional and/or different rules may apply in the event Spark Hire dedicates a special forum in the future to the promotion and/or offering of services by Spark Hire Customers.
5.7.8 Seeking to obtain private financial information from any Consumer;
5.7.9 To impersonate any other person;
5.7.10 To provide any false information;
5.7.11 Registering or attempting to register an account with Spark Hire without its express authorization after having been terminated or suspended by Spark Hire for any reason; and/or
5.7.12 Bypassing and/or interfering with Spark Hire's billing and/or security measures;
5.7.13 Circumventing and/or violating any person’s privacy rights;
5.7.14 Engaging in and/or attempting to engage in any prohibited conduct; and/or
5.7.15 Allowing more than one individual to access Spark Hire Services through a single Sub-Account;
5.8 Should you believe that a Spark Hire Customer or person has violated any of the foregoing prohibited uses in 5.7, you should immediately notify Spark Hire via[email protected]
5.10 You assume all liability for anything purchased using Spark Hire Services through your Account, whether intended for you or for a third party.
5.11 Cancellation of Account.
To effectively cancel your Account, please contact us at [email protected] for assistance. Upon doing so, a member of the Spark Hire team will reach out to you to discuss the cancellation of your Account and assist with the process.
Should a Spark Hire Employer or Staffing Customer wish to cancel or terminate their Account, the Spark Hire Employer or Staffing Customer must provide notice of termination no less than sixty (60) days prior to the end of the then-current billing term or the end date specified on a separate order form.
Upon cancellation, all of your Content may be deleted permanently. Spark Hire shall not be responsible for the loss of any Content due to the cancellation (or termination) of a Spark Hire Account.
Spark Hire is not responsible should an Account remain active if the cancellation procedure described above is not followed.
5.12 Termination of Account.
Additionally, Spark Hire may terminate a Spark Hire Account immediately in the event that Spark Hire believes, in its sole discretion, that a Spark Hire Customer is "flooding" the Spark Hire Services.
Spark Hire also reserves the right to suspend or terminate a Spark Hire Account should Spark Hire become involved in pending litigation or other similar dispute with a Spark Hire Customer in relation to the Spark Hire Account, or for any other reason. Should a Spark Hire Customer become involved in litigation or other similar dispute in relation to a Spark Hire Account, Spark Hire also may suspend or terminate the Spark Hire Account immediately and without notice. Where Spark Hire merely becomes involved in a dispute as the third party escrow for information at issue between you and a job candidate, the account will not be cancelled or suspended.
Should Spark Hire become aware of litigation relating to a Spark Hire Account, Spark Hire reserves the right to preserve content associated with the Spark Hire Account.
5.13 Consequences of Termination.
Should your Account become terminated, Spark Hire may, in our sole discretion and without liability to You, remove and discard any information associated with your account including, but not limited to, any Content or Customer Content.
Should your Account become terminated, you will remain solely responsible for all liabilities that may have arisen or arise from your Account and/or its termination.
Spark Hire shall not be liable to you or any third-party for any termination of your Account or your use of the Spark Hire Services.
Any Spark Hire Customer whose Account has been terminated by Spark Hire may not access the Spark Hire Services without the prior express written permission of Spark Hire.
Spark Hire may also refuse registration, terminate an account, and/or refuse Spark Hire Services to any person who registers or attempts to register an account with Spark Hire without authorization after having had an account previously suspended or terminated by Spark Hire. In particular, should Spark Hire identify this person by any means (including, but not limited to IP addresses), it reserves the right to refuse or terminate registration.
5.14 Should the Spark Hire Services become terminated globally for any reason, all Spark Hire accounts shall be terminated immediately, without any prior notifications by Spark Hire.
Spark Hire is not responsible for any false, defamatory, libelous, or slanderous Content posted by its Spark Hire Customers. If you believe any Content violates your rights or those of a third party in any way, you may contact Spark Hire via[email protected]
7.Intellectual Property Rights
7.1 Software. Spark Hire Services and any necessary software used in connection with the Spark Hire Services ("Software") contain proprietary and confidential information protected by applicable intellectual property and other laws. Spark Hire or its licensor holds all rights, title and interest in all Software and all intellectual property, including other rights related to intangible property, unless otherwise indicated. No title or interest in such intellectual property rights is being transferred to you and you agree to make no claim of interest in any such Software. Except as expressly authorized by Spark Hire or our advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Software, in whole or in part.
Spark Hire shall possess and retain all copyrights to content created by Spark Hire (“Spark Hire Content”). Spark Hire may use content obtained from third party sources. All rights to such third party content remains with the owners of such third party content.
You shall possess and retain all interest in your Video Content. However, you may only download Video Interviews if you purchase an annual subscription. Otherwise, you will have access to your Video Interviews, but cannot download them to your computers. Moreover, as stated elsewhere, any Video Content associated with an Account may be destroyed upon cancellation or termination of an account. All copyrights in Customer Content shall remain with the applicable owners of such copyrights.
You agree to not use Spark Hire Trademarks or any mark that is confusingly similar to such trademarks. Nothing on or through the Spark Hire Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of Spark Hire Trademarks. Spark Hire reserves the right to restrict the use of its name, system, logo, and trademarks. You agree to comply with any and all such restrictions.
For purposes of displaying your Account and content associated with it, you permit Spark Hire to use your name and trademark, if applicable. You also allow Spark Hire to use your name and trademark in a manner consistent with fair use. Upon receiving written request consistent with Notices provided herein, Spark Hire will remove your name and/or trademark except as necessary to continue providing you with Spark Hire Services.
All other companies' names, brand names and product names are trademarks or trade names of their respective owners who may or may not endorse, be affiliated with or connected to Spark Hire. You further acknowledge and agree that content contained in sponsor advertisements or information presented to you through the Spark Hire Services or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws
7.6 Unauthorized Access or Circumvention. As stated above, Spark Hire takes the privacy of its Spark Hire Customers very seriously. In this context, it also takes seriously any effort to circumvent the technology it has implemented to protect the privacy and the security of information on its servers. Should any person attempt to obtain or obtain unauthorized access to Spark Hire servers and/or should any Spark Hire Customer attempt to exceed or exceed his/her/its authorized access to Spark Hire servers, Spark Hire shall consider such conduct to violate the federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030, which provides for civil and criminal penalties. Additionally, depending on the circumstances, such conduct could also violate the Electronic Communications Privacy Act, 18 U.S.C. § 2510, et eq. and the Stored Communications Act, 18 U.S.C. § 2701, et seq., both of which also provide for civil and criminal penalties. Spark Hire considers the unauthorized access to and/or download of any Video Content fall within the scope of this prohibited conduct. Moreover, Spark Hire shall consider any approval or knowledge of a third party’s efforts to engage in the foregoing prohibited conduct as wilful cooperation in such conduct.
7.7 Individual Content and Information.
Spark Hire does not own any content or information provided by Individual Customers. The ownership of this content and information can vary depending on circumstances. Indeed, the laws related to privacy of consumer information often intersect and overlap with those relating to the privacy and ownership of employee information. In particular, the GDPR provides EU consumers with certain rights related to their personal information. At the same time, employers possess rights and obligations to retain certain employee and job candidate information. Should Spark Hire receive any request relating to Individual Customer content and information from that individual, Spark Hire will forward the request for you, the employer, to process. Absent a court order or clear indication of applicable law, Spark Hire will thereafter defer to and comply with the employer direction. In so doing, however, Spark Hire reserves the right to fully inform any individual of their respective rights and how to address such a dispute. Finally, as the employer, you affirm that any direction you provide to Spark Hire shall be based on a good faith interpretation of then existing laws applicable to you and the job candidate. Pursuant to Paragraph 11 below, you shall indemnify Spark Hire for any consequence of its compliance with your direction as to job candidate requests related to their content and information.
8.1 Spark Hire respects the intellectual property rights of others and prohibits anyone from uploading, posting or otherwise transmitting through Spark Hire Services any materials that violate another party's intellectual property rights. When Spark Hire receives proper Notification of Alleged Copyright Infringement as described herein, it promptly removes or disables access to the allegedly infringing material and terminates the accounts associated therewith as described herein in accordance with the Digital Millennium Copyright Act ("DMCA").
8.2 If you believe that any material on or through the Spark Hire Services infringes upon any copyright which you own or control, you may send a written Notification of Alleged Copyright Infringement to our designated DMCA Agent identified below.
8.3 If you believe that your own copyrighted work is accessible on or through the Spark Hire Services in violation of your intellectual property rights, you may provide our designated DMCA Agent with a Notification of Alleged Copyright Infringement as set forth in the DMCA that contains substantially the following information:
(A). Identify in sufficient detail the copyrighted work or intellectual property that You claim has been infringed so that Spark Hire can locate the material;
(B). Identify the URL or other specific location on the Website or Spark Hire Services that contains the material that You claim infringes your copyright described in Item 5.3(A) above;
(C). Provide the electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf;
(D). Include a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
(E). Include a statement by You that the information contained in your notice is accurate and that You attest under the penalty of perjury that You are the copyright owner or that You are authorized to act on the copyright owner's behalf; and,
(F). Include your name, mailing address, telephone number and email address.
8.4 You may send your Notification of Alleged Copyright Infringement to our designated DMCA Agent by mail or E-Mail as set forth below:
Spark Hire, Inc.
1500 Skokie Blvd., Suite 102A Northbrook, Illinois 60062
eMail: [email protected]
8.5 Spark Hire has adopted a policy of terminating, in appropriate circumstances and at its sole discretion, members who are deemed to be repeat infringers. Spark Hire may also in its sole discretion limit access to the Spark Hire Services and/or terminate the use thereof by anyone who infringes any intellectual property rights of others, whether or not there is any repeat infringement.
9. DATA BREACH
As stated elsewhere, Spark Hire respects the privacy of those who use its Services and provide information to Spark Hire in doing so. It complies with applicable laws and implements measures to protect the security of the information entrusted to it.
The foregoing being said, should a breach of any Spark Hire system or Services occur where an unauthorized individual accesses personal data (“Breach”), Spark Hire will inform its business customers in a reasonable manner under the circumstances (employers and/or staffing companies who serve as data controllers, owners, or licensees) promptly after discovering such breach.
As a business customer of Spark Hire, the manner in which you use the Services makes you the data controller for any consumer data obtained from individuals with whom you interact and/or interview through the Services. You agree to this designation. As a data controller, you may also be considered the owner or licensee of such consumer data.
Given Spark Hire operates as your data processor, and given consumers or data subjects provide Spark Hire their personal information in connection with you as an employer or staffing company, Spark Hire shall most often inform you of any data breach. For our European Union business customers, in particular, this will be the case. Given the relationship between you and the consumers with whom you interact through Spark Hire, you may also be the data owner or licensee. Similarly, we shall disclose any data Breach to you. Whether a data controller, owner, or licensee, you have the obligation of disclosing any data breach to the consumer or data subject.
When Spark Hire informs you of a data breach, you shall within five (5) business days of being so informed (a) make a determination whether such data breach must be reported under applicable law and, where you determine such data breach to be reportable, (b) report such data breach to the relevant authorities and data subjects. Following any disclosure to the relevant authorities and/or data subjects, you shall inform Spark Hire that such disclosure has occurred.
Further, you shall hold harmless and indemnify Spark Hire from any claims arising from a delay or failure to report such breach to data subjects. This indemnification includes a duty to defend.
This process and protocol has been established to comply with applicable laws and ensure every party understands their responsibilities. For our part, Spark Hire shall report any breach of data with the expectation that you will report it to the authorities and to the data subjects.
The foregoing being said, should a law outside the European Union require Spark Hire to inform data subjects directly, it shall do so. As to the European Union, Spark Hire’s disclosure to the data controller serves such purpose.
Where you fail to comply with your obligations under this Section or the terms generally, Spark Hire reserves the right to (a) comply with all applicable reporting laws on your behalf (including to data subjects) and/or (b) terminate your use of the Services.
10. RESALE OF SERVICE
Unless otherwise agreed to in writing by Spark Hire, you agree not to reproduce, duplicate, copy, sell, resell, outsource, reverse engineer or exploit any portion of, the use of, or access to Spark Hire Services.
11.2 In addition to your indemnification of Spark Hire, you shall have a duty to defend Spark Hire in any litigation or proceeding brought by a third party against Spark Hire due to or arising out of those terms in 11.1. With respect to this duty to defend, you shall have the obligation to remit payment reimbursing Spark Hire for its reasonable legal fees (including but not limited to attorney's fees, paralegal fees, costs and expenses) incurred upon presentment to you. In all cases, Spark Hire shall have the right to choose its own counsel to defend its interests.
12. DISCLAIMER OF WARRANTIES
12.1 THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES ARE PROVIDED TO YOU "AS IS", "WITH ALL FAULTS", "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW.
12.2 SPARK HIRE SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, CAPABILITIES, SECURITY, TIMELINESS, USEFULNESS AND/OR CONTENT OF THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES:
THE ABILITY OF THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES TO INTEROPERATE OR INTEGRATE WITH ANY THIRD PARTY PRODUCTS SUCH AS SOFTWARE OR HARDWARE;
ANY WARRANTIES RESULTING FROM A COURSE OF DEALING OR USAGE OF TRADE;
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE;
ANY WARRANTIES OF NON-INFRINGEMENT; AND
ANY WARRANTIES REGARDING THE RIGHTS AND TITLE OF SPARK HIRE IN THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES, OR ANY WARRANTY THAT THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES DO NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
12.3 SPARK HIRE IS NOT LIABLE FOR ANY INFORMATION, SOFTWARE OR OTHER PRODUCTS THAT ARE DOWNLOADED FROM THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES BY YOU OR INSTALLED ON YOUR COMPUTER. AS SUCH, SPARK HIRE IS NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
12.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
12.5 SPARK HIRE MAKES NO WARRANTY THAT THE APPS, WEBSITE, SPARK HIRE SERVICES, AND/OR CONTENT THEREON WILL BE ERROR-FREE, AVAILABLE WITHOUT INTERRUPTION, TIMELY, OR MEET YOUR REQUIREMENTS.
12.6 WE WILL MAKE REASONABLE EFFORTS TO MAINTAIN THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES. HOWEVER, WE ARE NOT RESPONSIBLE FOR ANY DAMAGE; LOSS OF DATA, CUSTOMER INFORMATION OR VENDOR DATA; LOSS OF REVENUE; OR, OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION, RESTRICTION OR LOSS OF ACCESS, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE SPARK HIRE SERVICES, OR OTHER INTERACTION WITH THE SPARK HIRE SERVICES. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION THAT MAY RESIDE ON THE SPARK HIRE SERVICES. WE DO NOT WARRANT THAT (i) THE SPARK HIRE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS, (ii) THE SPARK HIRE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SPARK HIRE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SPARK HIRE SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
12.7 THESE DISCLAIMERS APPLY TO ALL CONTENT SENT TO AND/OR FROM THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES.
13.THIRD PARTY LINKS AND PRODUCTS
13.1 IN CONNECTION WITH THE SPARK HIRE SERVICES, SPARK HIRE MAY PROVIDE YOU WITH LINKS TO THIRD PARTY WEBSITES AND OFFERS FOR PRODUCTS AND SERVICES OF THIRD PARTIES.
13.2 SPARK HIRE NEITHER MONITERS NOR HAS ANY CONTROL OVER SUCH THIRD PARTY WEBSITES, PRODUCTS, AND SERVICES.
13.3 SPARK HIRE IS NOT RESPONSIBLE FOR AND DOES NOT ENDORSE (A) THE AVAILABILITY OR CONTENT OF SUCH THIRD PARTY WEBSITES; (B) THE PRODUCTS OR SERVICES OFFERED BY SUCH THIRD PARTIES; (C) THE USE OF OR RELIANCE UPON SUCH CONTENT, PRODUCTS, OR SERVICES; (D) ANY LOSS OR DAMAGE ARISING FROM ANY COMMUNICATIONS AND/OR TRANSACTIONS BETWEEN YOU AND THIRD PARTIES; AND/OR (E) THE PRIVACY AND OTHER PRACTICES OF SUCH THIRD PARTIES.
13.4 ANY CORRESPONDENCE OR BUSINESS TRANSACTIONS BETWEEN YOU AND SUCH THIRD PARTIES ARE SOLELY BETWEEN YOU AND ANY SUCH THIRD PARTY.
13.5 SPARK HIRE SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THIRD PARTY PRODUCTS AND SERVICES INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT OR WHERE SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
13.6 THIRD PARTY WEBSITES MAY SOLICIT PERSONAL INFORMATION AND SEND COOKIES. THE INCLUSION OF A LINK TO A THIRD PARTY WEBSITE THROUGH THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES DOES NOT IMPLY ENDORSEMENT OF THE LINKED THIRD PARTY WEBSITE.
13.7 YOU ALSO MAY BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS THAT MAY APPLY WHEN YOU USE AFFILIATE OR OTHER SERVICES PROVIDED BY SPARK HIRE, THIRD-PARTY CONTENT OR THIRD-PARTY SOFTWARE. SPARK HIRE SPECIFICALLY DISCLAIMS ANY LIABILITY FOR ITS CUSTOMERS FAILING TO ABIDE BY THIRD-PARTY WEBSITES' POLICIES AND TERMS.
14.LIMITATION OF LIABILITY
14.1 GENERAL TERMS. FOR EACH OF THE FOLLOWING LIMITATIONS OF LIABILITY, THE FOLLOWING TERMS SHALL APPLY:
14.1.2 “DAMAGES” SHALL INCLUDE ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY DIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, AND/OR ANY OTHER DAMAGES OR INTANGIBLE LOSS. THE TYPE OF DAMAGES TO WHICH THESE LIMITATIONS OF LIABILITY APPLY INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF BUSINESS PROFITS OR LOST SAVINGS, LOSS TO GOODWILL, LOSS ARISING FROM BUSINESS INTERRUPTION, LOSS OR VANDALISM OR THEFT OF PROGRAMS OR INFORMATION, LOSS OF REPUTATION, VIOLATION OF PRIVACY, LOSS OF USE OR DATA, LEGAL FEES (INCLUDING, BUT NOT LIMITED TO, ATTORNEY’S FEES, PARALEGAL FEES, AND OTHER COSTS AND EXPENSES), AND/OR ANY OTHER KIND OF DAMAGE OR LOSS.
14.1.3 “SPARK HIRE” SHALL MEAN SPARK HIRE; ITS SUBSIDIARIES; AND, ITS OWNERS, OPERATORS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, AFFILIATES, REPRESENTATIVES, LICENSORS, SUCCESSORS OR ASSIGNS.
14.1.4 “STRATEGIC PARTNERS” SHALL MEAN CO-BRANDERS, SUPPLIERS, VENDORS, AND OTHER PARTNERS USED BY SPARK HIRE AS WELL AS THEIR SUBSIDIARIES, PARENTS, OWNERS, OPERATORS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, AFFILIATES, REPRESENTATIVES, LICENSORS, SUCCESSORS OR ASSIGNS.
14.1.5 THESE LIMITATIONS OF LIABILITY APPLY REGARDLESS OF WHETHER CAUSED BY SPARK HIRE OR ANY PART OF SPARK HIRE AS DEFINED ABOVE.
14.1.6 THESE LIMITATIONS OF LIABILITY APPLY TO ALL CLAIMS, CAUSES OF ACTION, AND/OR FORMS OF ACTION, WHETHER FOR OR BASED UPON BREACH OF CONTRACT, EQUITY, NEGLIGENCE, TORT, STRICT LIABILITY OR UNDER ANY OTHER CLAIM OR CAUSE OF ACTION.
14.1.7 THESE LIMITATIONS OF LIABILITY APPLY EVEN IF SPARK HIRE WAS ADVISED OF THE POSSIBILITY OF ANY DAMAGES OR LOSSES.
14.2 YOU AGREE THAT SPARK HIRE AND ITS STRATEGIC PARTNERS SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY WHATSOEVER FOR ANY DAMAGES AS DEFINED ABOVE ARISING IN CONNECTION WITH OR IN ANY WAY OUT OF THE AVAILABILITY OR USE OF, RELIANCE ON, INABILITY TO USE, OR ANY OTHER MATTER RELATING TO THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES.
14.3 YOU AGREE TO EXCUSE SPARK HIRE AND AGREE THAT IT SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DELAY OR FAILURE TO PERFORM DUE TO ANY CAUSE BEYOND ITS REASONABLE CONTROL INCLUDING, BUT NOT LIMITED TO, ACTS OF GOVERNMENT; NATURAL CATASTROPHES; FORCE MAJEURE; ACTS OF GOD; INTERNET DISRUPTIONS OR UNAVAILABILITY; FAILURE OF OPERATING SYSTEMS; UNAVAILABLE NETWORK CONNECTIONS; IMPERFECT COMPUTER TRANSMISSIONS; LABOR DISPUTES: POWER OUTAGES; LOSS OF DATA; OR SIMILAR OCCURRENCES.
14.4 YOU AGREE THAT SPARK HIRE SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY FOR ANY MODIFICATION, SUSPENSION, OR DISCONTINUANCE OF THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES. SIMILARLY, SPARK HIRE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY SHOULD UPDATES TO THE SOFTWARE OR CODE REQUIRE THE INSTALLATION OF OTHER THIRD PARTY SOFTWARE.
14.5 YOU AGREE THAT SPARK HIRE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES AS DEFINED ABOVE THAT ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH:
14.5.1 THE USE OF OR THE INABILITY TO USE THE SPARK HIRE SERVICES;
14.5.2 THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SPARK HIRE SERVICES;
14.5.3 UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT, OR DATA;
14.5.4 STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SPARK HIRE SERVICES;
14.5.5 THE DISCLOSURE OF ANY PARTY'S IDENTITY OR IDENTIFYING INFORMATION;
14.5.7 ANY OTHER MATTER RELATING TO THE SPARK HIRE SERVICES.
14.6 YOU AGREE THAT SPARK HIRE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES AS DEFINED ABOVE. WHERE ANY COURT OF COMPETENT JURISDICTION LIMITS THE ABILITY OF SPARK HIRE TO DISCLAIM ANY DAMAGES, YOU AGREE THAT THE MAXIMUM AMOUNT OF DAMAGES THAT SPARK HIRE SHALL BE LIABLE TO YOU FOR SHALL NOT EXCEED THE AMOUNT OF PAYMENTS YOU PAID TO SPARK HIRE.
14.8 YOU AGREE THAT SPARK HIRE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES RESULTING OR OCCURRING THROUGH ANY CURRENT, FORMER, AND/OR POTENTIAL EMPLOYMENT RELATIONSHIP (WHETHER EMPLOYER-EMPLOYEE OR EMPLOYER-INDEPENDENT CONTRACTOR OR EMPLOYER-STAFFING COMPANY) DEVELOPED, MODIFIED, OR TERMINATED BY USE OF THE APPS, WEBSITE AND/OR SPARK HIRE SERVICES.
14.9 YOU AGREE THAT SPARK HIRE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY MISUSE OF CONTENT FOUND ON OR THROUGH THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES. PARTICULARLY, SPARK HIRE SHALL NOT BE LIABLE FOR ANY MISUSE OF ANY VIDEO CONTENT OR INFORMATION CONTAINED THEREON BY ANY CUSTOMER.
14.10 YOU AGREE THAT SPARK HIRE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY MISUSE OF CONTENT FOUND ON OR THROUGH THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES DELIVERED TO STAFFING CLIENTS. PARTICULARLY, SPARK HIRE SHALL NOT BE LIABLE FOR ANY MISUSE OF ANY VIDEO CONTENT OR INFORMATION CONTAINED THEREON BY ANY STAFFING CLIENTS.
14.11 YOU AGREE THAT SPARK HIRE AND ITS STRATEGIC PARTNERS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY FAILURE OF PERFORMANCE; ERROR; OMISSION; INTERRUPTION; DELETION OF CONTENT; DEFECT; DELAY IN OPERATION OR TRANSMISSION; BUG; VIRUSES THAT MAY INFECT YOUR COMPUTER SOFTWARE, EQUIPMENT, OR OTHER PROPERTY; COMMUNICATION LINE FAILURE; THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION, INACCESSIBILITY OR LOSS OF, OR USE OF DATA, INFORMATION AND/OR RECORDS.
14.11.1 WE SPECIFICALLY DO NOT WARRANT OR GUARANTEE (1) THAT THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES OR ANY PORTION THEREOF WILL BE FREE OF INFECTION BY VIRUSES, BUGS, OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES, (2) THAT THE FUNCTIONS PERFORMED BY THE APPS, WEBSITE, AND/OR SPARK HIRE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR (3) THAT DEFECTS IN THE APPS, WEBSITE, AND/OR THE SPARK HIRE SERVICES WILL BE CORRECTED.
14.11.2 IT IS YOUR SOLE RESPONSIBILITY TO EXECUTE ANTI-CONTAMINATION VIRUS SOFTWARE AND OTHERWISE TAKE STEPS TO ENSURE THAT THE APPS, WEBSITE, AND SPARK HIRE SERVICES, IF CONTAMINATED OR INFECTED, WILL NOT DAMAGE YOUR INFORMATION OR SYSTEM.
15.EXCLUSIONS AND LIMITATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 11, 12, 13, and 14 MAY NOT APPLY TO YOU.
16.RESERVED FOR FUTURE USE.
17.1 Acknowledgement.You acknowledge that you have read, understood, and agreed to all terms contained herein. Further, you represent that you have consulted, or have had the opportunity to consult with, your legal, tax, and financial advisors in connection with the execution and performance of the Agreement.
17.3 Arbitration Clause.
A single arbitrator shall be agreed upon by the parties or, if the parties cannot agree upon an arbitrator within thirty (30) days, then the parties agree that a single arbitrator shall be appointed by JAMS. The arbitrator may award legal fees (including, but not limited to, attorneys' fees, paralegal fees, etc.), expenses, and costs as part of the award.
Any award issued as a result of the arbitration shall be binding and may be entered as a final judgment or order in any court of competent jurisdiction and enforced accordingly. All costs and expenses of the arbitration, including reasonable legal fees (including, but not limited to, attorney's fees, paralegal fees, etc.), shall be allocated among the parties as determined by the arbitrator.
Notwithstanding the foregoing, either Party may, at its sole discretion, seek preliminary judicial relief in anycourt of competent jurisdiction(including, but not limited to, preliminary injunctive relief) and, additionally, the provisions of this Section may be enforced by anycourt of competent jurisdiction.
With respect to any dispute, claim, or controversy relating to the privacy of consumer information, GDPR, and/or Privacy Shield, we direct you to Section 6 of our Privacy and Security Policy entitled Dispute Resolution. Should you have any questions, please contact us at [email protected]
17.7 Intentionally Omitted.
17.10 Legal Advice Not Provided. You acknowledge and agree that Spark Hire has not and will not provide you with any legal advice on any subject, but particularly with respect to compliance with employment, data privacy, or other relevant laws, rules, or regulations. You agree not to construe any Spark Hire communications as legal advice.
17.14 Statute of Limitations. To the extent permitted by law, any claim or cause of action arising out of or related to use of the Apps, Website, and/or Spark Hire Services shall be filed within one (1) year after such claim or cause of action arose. To the extent permitted by law and as applicable, any claim arising from the publication of any content on or through the Apps, Website, and/or Spark Hire Services shall accrue on the first date of publication.
17.18 Restricted Locations.
The Apps, Website, and/or Spark Hire Services may not be accessed, viewed, downloaded or otherwise received in any country or location in which doing so would, or could be deemed a violation of any law, regulation, rule, ordinance, edict or custom.
Apps, Website, and/or Spark Hire Services may not be used by and is not directed at any country or region currently embargoed by the United States. By using the Apps, Website, and/or Spark Hire Services, you agree to the foregoing and you warrant that you are not located in, or under the control of, or a national or resident of any such country or region.
You agree to comply with all local rules regarding online conduct and what Spark Hire deems, in its sole discretion, acceptable content. For examples of prohibited content and conduct, refer to Section 5.7 above.
You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
Rev. September 28, 2022