Terms and Conditions
SPARKMARKET HOLDINGS, LLC
TERMS AND CONDITIONS OF USE
Last Updated on September 20, 2015
SparkMarket provides tools and resources to businesses in certain states (the “Select States”) to construct and manage an intrastate public offering of securities. Businesses who are located in the Select States can access our Services via the Website to construct a campaign (a “Campaign”), and can invite persons to support that campaign via a dedicated subdomain of the Website.
The Company is not registered as a broker/dealer or investment advisor in any jurisdiction, and the Services are limited to the provision of technology based tools to facilitate intrastate securities offerings. Users are required to comply with all applicable laws related to them and their business, as applicable.
Conditions of Participation
The following governs your use of our Website and our Services. I agree that I will not (and shall not permit any third party to):
• Alter, damage or delete any materials appearing on the Website;
• Disrupt the normal flow of communication on the Website, such as through “spam” email or by other means;
• Claim a relationship with or speak for any business, organization, or person for which I am not authorized to claim such a relationship;
• Violate any operating rule, policy or guideline of my Internet access provider or online service;
• Post, email, transmit, upload, submit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, or language that is racially, ethnically or otherwise objectionable;
• Upload, post, submit, email, transmit or otherwise make available any content that I do not have a right to make available under any law or under contractual or fiduciary relationships or that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
• Upload, post, submit, email, transmit or otherwise make available 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 or telecommunications equipment;
• Upload, post, submit, email, transmit or otherwise make available any materials that restrict or inhibit any other user from using and enjoying the Website;
• Upload, post, submit, email, transmit or otherwise make available any materials or transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate applicable law or regulation;
• Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, and any regulations having the force of law;
• “Stalk” or otherwise harass another; and/or
• Collect or store personal data about other users in connection with the prohibited conduct and activities set forth above.
In addition, you agree that you will not: (1) interfere or attempt to interfere with the running of the Services or any activities conducted on the Website, (2) modify, or create derivative works of any part of the Website, (3) decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas of any part of the Website, or (4) assign, copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive arising out of your use of the Website.
We reserve the right to prohibit or restrict conduct and reserve the right to edit, refuse to post, or to remove any content, in whole or in part, which in our sole discretion we believe violates the provisions herein, or is otherwise objectionable.
You may only create a Campaign using our Services if the Campaign is being run by an entity organized under the laws of the State of Georgia or Tennessee (as applicable); currently the Select States. Creating a Campaign may require a business to open a separate account (or accounts) with third-party service provider(s) of the Company’s choosing through which subscription funds will be accepted.
Campaign creators agree that they will abide by all obligations created by their entry into definitive agreements—including note purchase agreements and promissory notes—with investors who commit to support Campaigns.
You may only commit to support a Campaign (and may only invest in a Campaign) you are invited to support if you are a resident of the Select State in which the Campaign is registered (Georgia or Tennessee, as applicable). Investment in a Campaign may require the investor to open a separate account with a third-party service provider of the Company’s choosing, through which subscription funds will be accepted, unless such procedures are altered or waived by us, in our sole discretion.
Supporters of Campaigns agree that the obligations created pursuant to any definitive agreements between themselves and managers of Campaigns are solely obligations of such Campaign managers, and are, in no way, obligations of the Company. The rights of a Campaign supporter related to any investment are contained solely within such definitive agreements.
The Services have been designed to enable our Website users to upload, submit, or post certain content, which includes, but is not limited to, software, graphics, videos, audio clips, data and information to the Website.
The Company does not endorse and has no control over any submission by our Website users. We do not guarantee the accuracy, completeness or authenticity of any data or information, which our Website users submit. You acknowledge that the Company has no responsibility relating to any information and content which you access through the Services and that your use of the Services is solely at your own risk. Moreover, you are responsible for any damage or loss resulting from your use of the Website and the Services.
Registration on Website
You may be required to register as a user of the Website if you want to use certain areas of the Service. During the registration process, you will create a user ID and password. You agree to provide us with accurate and complete information when you register. We reserve the right to refuse registration or to terminate or cancel a user ID at any time, in our sole discretion. You are solely responsible for any activity that occurs on your account and you agree to immediately notify us of any unauthorized use of your account.
The Company provides a suite of tools that are designed to enable fundraising for certain users (Campaigns). Any persons wishing to invest in Campaigns posted on the Website must certify as to their legal residency (investments are open to Georgia residents only) and eligibility. Potential investors will first be asked to indicate their level of support (in dollar terms) for a Campaign, and, when the Campaign manager later moves to close the Campaign, must submit payment for their investment as instructed.
We do not oversee the performance of any Campaigns. Moreover, we shall not be liable for any interactions or interchanges which you may have with any organizations and/or individuals found on or through the Website and we are not responsible for any damage or loss incurred as a result of any such interactions or interchanges. All interchanges are solely between you and such organizations and/or individuals. In the event of a dispute between you and any organizations and/or individuals found on or through the Website, you release us and hold us harmless from any and all claims, damages, liabilities and demands arising out of or in any way related to such disputes and our Service.
We shall not become involved in any dispute between Campaign managers and investors. Campaign managers are responsible for fulfilling obligations and commitments set forth in the applicable Campaign listing they create using the Services. We reserve the right to cancel or terminate or remove a Campaign at any time in our sole discretion.
Campaigns may be created only by entities that are incorporated or organized in the States of Georgia or Tennessee. Once a Campaign is accepted for creation by the Company, the Service allows you to submit, transmit and upload your Campaign content to the Website. In connection with such submission, you grant to us a, non-exclusive, royalty-free, world-wide right to use, (and permit Website users to use) distribute, collect, host, and display, the Campaign content (including any trademarks, service marks, or other proprietary right), in connection with the Service.
The Company retains the right to accept or reject any proposed Campaign, and to terminate any active Campaign, in its sole and absolute discretion, for any reason, or no reason. All decisions regarding acceptance, rejection and termination are final.
Website User Submission and Posted Materials
By posting or transmitting, submitting, inputting or uploading information and content to the Website, you represent and warrant that you: (i) own or control all rights to all content and information in your submission to the Website (or it is otherwise in the public domain); (ii) have all intellectual property rights in and to the content and information; and (iii) the content and information does not infringe or violate the proprietary rights of third parties. In addition, you automatically grant the Company, under your intellectual property rights, a royalty-free, perpetual, non-exclusive, worldwide license (with the right to grant sublicenses) to use, copy, modify, distribute, publicly display, prepare derivative works of, perform, and otherwise exploit such information, without compensation to you. You acknowledge and agree that the Company has the right to delete or modify any of the content and information that you submit.
By becoming a user of the Website or our Services, you expressly consent and agree to accept and receive communications from us, including via e-mail, text message, calls, and push notifications to the cellular telephone number you provide to us (if any). Standard text messaging charges applied by your cell phone carrier will apply to text messages we send (if any).
Website users understand and acknowledge that certain portions of the Website, and certain documents posted on the Website relating to Campaigns contain certain “forward-looking statements”, which involve risks and uncertainties. These forward-looking statements, which are usually accompanied or indicated by words such as “may”, “might”, “will”, “should”, “could”, “intends”, “estimates”, “predicts”, “potential”, “continue”, “believes”, “anticipates”, “plans”, and “expects”, relate to, without limitation, statements about market opportunities, a company’s strategy, its competition, projected revenue and expense levels, and the adequacy of cash resources. These statements and documents also contain forward-looking statements attributed to third parties. These statements are only predictions. Investors in Campaigns should not place undue reliance on these forward-looking statements, which are only as of the date of the document in which they may be contained. A company’s actual results could differ materially from those expressed or implied by these forward-looking statements as a result of various factors. No statement or document on the Website guarantees future results, performance or achievements. No person posting statements or documents to the Website is under a duty or obligation to update any of the forward-looking statements contained in the statement or document after the date it is made to conform them to actual results or changes in expectations.
No Advice or Solicitation; Acknowledgements Associated with Investments
The Website is for informational purposes only and should not be used or construed as an offer to sell, a solicitation of an offer to buy, or an endorsement, recommendation or sponsorship of any company by Sparkmarket Holdings, LLC, its affiliates, officers, directors, employees or agents. You acknowledge and agree that the use of the Website and any decisions made in reliance upon the Website are made at your own risk.
In the event you commit to support a Campaign through the Website, and subsequently invest in such company, you acknowledge and agree that: (i) there are no refunds, of any type, of your investment; and (ii) you are responsible for any inaccuracy in selecting the amount of your investment, and you may not direct how the money is to be spent by the specific company running the Campaign.
The Company cannot and does not guarantee that the information in the Services is accurate, reliable, current, complete or appropriate for your needs. Due to various factors, the accuracy, completeness, timeliness or results obtained is not and cannot be guaranteed by the Company.
The Company does not offer legal, accounting, tax, investment or other professional advice to any person, including any Campaign manager, or any person committing to support or investing in a Campaign. Campaign managers and persons who intend to support or invest in a Campaign are urged to seek independent counsel before using the Services or the Website.
There may be fees associated with certain Services on the Website. Fees are collected by our various payment processors. The fees are subject to change at any time. Prior to your use of the Services on www.sparkmarket.com, you will be given an opportunity to review and accept the fees that you will be charged. The Company makes no warranties or guarantees regarding the performance of its payment processors and the Company does not guarantee or warrant the receipt of all funds. You agree to pay all fees and applicable taxes associated with your use of the Services and any submission of a Campaign, or investment. In the event you terminate your use of the Services, all fees payable to the Company are non-refundable.
Campaign Closings; Disbursement of Funds for Campaigns
Downloading of Materials; Proprietary Rights
You acknowledge and agree that the Website may contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that information contained in advertisements or information presented to you through the Website or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly permitted by applicable law or authorized by the Company or the applicable licensor, you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivative works based on the information or content contained in the Website, in whole or in part.
The Company does not guarantee or warrant that information available for downloading through the Website will be free of infection or viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements.
Third Party Links
From time to time, the Services may provide you with the ability to access certain content from third parties, through links to the websites of such other parties or through content that other parties, themselves, post on the Website. You proceed at your own risk when you access such third party content.
The Company does not guarantee that it will screen such content or that such content will be accurate, free from errors, consistent with what it purports to be appropriate to fit your needs. You agree that the Company shall not be held liable for any activities that occur on any website you access through links on the Website. We provide these links as a convenience, and do not endorse the content or services offered by these other sites.
In the event you post content to the Website, the Company reserves the right to screen such content but does not guarantee that it will do so. All decisions on whether or not to retain, disseminate or remove content posted by users shall be made by the Company, in its sole discretion. Users are prohibited from using the Services to violate any laws or to violate the rights of the Company or of any third parties, all as further provided below.
Proprietary Rights of the Company
All intellectual property rights in the Website and the Services shall be owned by us absolutely and in their entirety. These rights include and are not limited to database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Website and the Services are the property of their respective owners.
Subject to your compliance with the terms of this Agreement, the Company grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) access and use the Website solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Website. Any rights not expressly granted herein are reserved by the Company and the Company’s licensors.
Sparkmarket, SparkMarket, and other Company logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of Sparkmarket Holdings, LLC in the United States and/or other countries (collectively, the “SPRK Marks”). The SPRK Marks may not be used in any manner that is likely to cause confusion.
You acknowledge that the Company is the owner and licensor of the SPRK Marks, and that your use of the SPRK Marks will confer no additional interest in or ownership of the SPRK Marks in you but rather inures to the benefit of the Company. You agree to use the SPRK Marks strictly in accordance with the Company’s guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that the Company determines to nonconforming or otherwise unacceptable.
You agree that you will not:
(i) create any materials that incorporate the SPRK Marks or any derivatives of the SPRK Marks other than as expressly approved by the Company in writing;
(ii) use the SPRK Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the SPRK Marks other than in accordance with the terms, conditions and restrictions herein;
(iii) take any other action that would jeopardize or impair the Company’s rights as owner of the SPRK Marks or the legality and/or enforceability of the SPRK Marks, including, without limitation, challenging or opposing the Company’s ownership in the SPRK Marks;
(iv) apply for trademark registration or renewal of trademark registration of any of the SPRK Marks, any derivative of the SPRK Marks, any combination of the SPRK Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the SPRK Marks; or
(v) use the SPRK Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
If you create any materials bearing the SPRK Marks (in violation of this Agreement or otherwise), you agree that upon their creation the Company exclusively owns all right, title and interest in and to such materials, including without limitation any modifications to the SPRK Marks or derivative works based on the SPRK Marks. You further agree to assign any interest or right you may have in such materials to the Company, and to provide information and execute any documents as reasonably requested by the Company to enable the Company to formalize such assignment.
Copyright Complaints and Copyright Agent
The Company respects the intellectual property of others, and expects users to do the same. If you believe, in good faith, that any materials on the Website infringe upon your copyrights, please submit the following information:
(i) a description of the copyrighted work that you claim has been infringed, including specific location on the Website where the material you claim is infringed is located. Include enough information to allow the Company to locate the material, and explain why you think an infringement has taken place;
(ii) a description of the location where the original or an authorized copy of the copyrighted work exists – for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
(iii) your address, telephone number, and e-mail address;
(iv) 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;
(v) a statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
(vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
All notices of possible infringement must be sent to the Company at the following address: 3423 Piedmont Road, NE, Suite #555, Atlanta, Georgia 30305. This address is provided solely so that you can send us notices of possible infringement. Any correspondence you provide regarding any other topic, such as requests to be unsubscribed from mailings, inquiries for technical support, or questions or concerns regarding this Agreement generally, will not receive a response through this process.
Disclaimer of Warranties and Limitation of Liability
You agree that neither Sparkmarket Holdings, LLC, nor its affiliates, officers, directors, employees, agents or representatives, shall have any liability, contingent or otherwise, for the truthfulness, accuracy or timeliness of the content or information on the Website (or any services contained therein) or for any decision made or action taken by you in reliance upon such information or content.
YOUR USE OF THE WEBSITE AND INFORMATION CONTAINED THEREIN ARE AT YOUR SOLE RISK. THE WEBSITE AND INFORMATION CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THERE IS NO WARRANTY OF MERCHANTABILITY, NO WARRANTY OF FITNESS FOR A PARTICULAR USE AND NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING ANY ASPECT OF THE INFORMATION MADE AVAILABLE VIA THE WEBSITE. YOU RECOGNIZE THAT THE ACCURACY OF ANY SUCH INFORMATION SHOULD BE CHECKED BEFORE YOU RELY ON IT.
IN NO EVENT WILL SPARKMARKET HOLDINGS, LLC BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, OR CLAIMS ARISING IN TORT (INCLUDING NEGLIGENCE), EVEN IF SPARKMARKET HOLDINGS, LLC HAS BEEN ADVISED OF OR IS OTHERWISE AWARE OF THE POSSIBILITY OF ANY OF THE FOREGOING.
YOU ACKNOWLEDGE THAT DOCUMENTS POSTED TO AND CONTENT AVAILABLE AT THE WEBSITE MAY CONTAIN COMPUTER VIRUSES. SHOULD YOU DOWNLOAD ANY SUCH MATERIALS FROM THE WEBSITE, IT IS YOUR RESPONSIBILITY TO PERFORM ANY SCANNING OR OTHER ANTI-VIRUS PRECAUTIONS AS YOU DEEM NECESSARY. UNDER NO CIRCUMSTANCES WILL SPARKMARKET HOLDINGS, LLC BE RESPONSIBLE FOR ANY LOSS OR DAMAGE CAUSED BY ANY MATERIALS DOWNLOADED FROM THE WEBSITE AND YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT OR DATA YOU USE IN CONNECTION WITH OUR WEBSITE.
The Company makes no representation that the Website is appropriate for use in locations outside the United States, and access to this Website from locations where the provision of such information may be illegal is prohibited. Users of the Website who access this Website from such locations do so of their own volition and are responsible for compliance with all applicable local laws.
Agreement to Arbitrate All Disputes and Legal Claims
YOU ACKNOWLEDGE AND AGREE THAT YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to the Company’s business, operations and properties, including User information (“Confidential Information”) disclosed to you by the Company for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the Company in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to the Company with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by the Company or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of the Company; becomes known to you, without restriction, from a source other than the Company without breach of this Agreement by you and otherwise not in violation of the Company’s rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that you shall provide prompt notice of such court order or requirement to the Company to enable the Company to seek a protective order or otherwise prevent or restrict such disclosure.
Except as explicitly stated otherwise, any notices to the Company shall be given by certified mail, postage prepaid and return receipt requested to:
Sparkmarket Holdings, LLC
Attn: Corporate Secretary
3423 Piedmont Road, NE, Suite #555
Atlanta, Georgia 30305
Such notice shall be deemed given five (5) days after the date of mailing.
Any notices to you shall be provided to you through the Website or given to you via the e-mail address you provide to the Company during the registration process, and such notice shall be deemed given immediately upon sending. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to the Company during the registration process. In such case, notice shall be deemed given five (5) days after the date of mailing.
To resolve a complaint regarding the use of the Website or our Services, you should first contact our Customer Service Department through our support center at www.sparkmarket.com.
Choice of Law; Choice of Forum