Terms and Conditions of Service
This online website (the ”Service”) is provided by Spark Networks® USA, LLC, whose principal office is located at 11150 Santa Monica Blvd. Suite 600, Los Angeles, CA 90025 (“Spark Networks”).
This legal agreement (“Agreement”) is made between You and Us. This Agreement, as it may be amended from time to time, applies to all users of any Spark Networks site, including but not limited to: AmericanSingles.com, Relationships.com, JDate.com, and BlackSingles.com (the “Websites”)
You may not use the Service if you are under the age of 18 or you are not able to form legally binding contracts, or if your membership has been suspended by Us. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICE. By using the Service, You agree to be bound by the terms and conditions of this Agreement for as long as You continue to use the Service. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE SERVICE FOR OR THE WEBSITES.
THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE SUBJECT TO CHANGE BY US AT ANY TIME, EFFECTIVE UPON NOTICE TO YOU, WHICH NOTICE SHALL BE PROVIDED UPON OUR POSTING OF THE CURRENT VERSION OF THIS AGREEMENT ON THE SERVICE. You agree that Your continued use of the Websites or the Service will constitute acceptance of any changes to this Agreement.
THIS AGREEMENT REQUIRES THE BINDING ARBITRATION OF ANY AND ALL DISPUTES, AS STATED IN THE “RESOLUTION OF DISPUTES” SECTION BELOW (OTHER THAN CERTAIN SPECIFIED INTELLECTUAL PROPERTY DISPUTES DEFINED BELOW), WHICH YOU SHOULD READ IN ITS ENTIRETY. YOU UNDERSTAND THAT THIS IS A LEGALLY BINDING INSTRUMENT AND AGREE TO ABIDE BY ITS TERMS. YOU EXPRESSLY AGREE WITH US THAT THAT ANY DISPUTE MAY ONLY BE RESOLVED THROUGH AN INDIVIDUAL ARBITRATION BETWEEN YOU AND US, AND SHALL NOT BE BROUGHT AS A CLASS ARBITRATION, A CLASS ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING.
In this Agreement the following terms have the following meanings unless the context requires otherwise:
“Agreement” means the agreement between You and Us incorporating these terms and conditions for the provision of the Service, as amended from time to time in the manner set forth herein;
“We, Us, Our” means Spark Networks® USA, LLC; and
“You, Your, Yourself” means the person who accesses or utilizes the Websites or registers for or uses the Service.
MINORS MAY NOT USE THE SERVICE. By using the Service, You represent and warrant that You are at least 18 years old. By using the Service, You represent and warrant that You have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement. Your use for the Service is for Your sole, personal use.
TERM AND TERMINATION:This Agreement will remain in full force and effect while You use the Websites or the Service, and after You have ended use of the Websites or the Service, including without limitation the “Resolution of Disputes” section below.
PROPRIETARY RIGHTS: You represent and warrant to Us that the information posted by You on the Service, including any photographs, is posted by You and that You are the exclusive author of any such information and the exclusive owner of any such photographs. You assign to Us, with full title guarantee, all copyright in Your postings, including any photographs, and any additional information sent to Us at any time in connection with Your use of the Service. You waive absolutely any and all moral rights to be identified as author of Your postings and owner of Your photographs and any similar rights in any jurisdiction in the world. Except for that information which is in the public domain or for which You have been given express written permission, You will not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information. By posting information, photographs or content on the Service, You automatically grant, and You represent and warrant that You have the right to grant, to Us and other users, free of charge, an irrevocable, perpetual, non-exclusive, royalty-free, fully-paid, worldwide license to use, copy, perform, display, promote, publish and distribute such information, content and photographs and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sub-licenses of the foregoing.
YOUR USE OF THE SERVICE: You agree that:
(1) You will use the Service in a manner consistent with any and all applicable laws and regulations. You will not include in Your postings any telephone numbers, street addresses, last names, URL’s or email addresses, other than in response to Our prompts. You will not engage in advertising to, or solicitation of, other users to buy or sell any products or services through the Service. You will not transmit any chain letters or junk email to other users. You are solely responsible for Your interactions with others that you meet on the internet, including through the Service. We reserve the right, but have no obligation, to monitor and/or mediate disputes between You and other users of the Service.
(2) You are solely responsible for the content or information You publish or display (hereinafter, “post”) on the Service, or transmit to other users. You will not post on the Service, or transmit to other users or to Us or Our employees, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). You will not include in any postings on the Service any offensive language, including but not limited to offensive anatomical or sexual references, or offensive sexually suggestive or connotative language, and You will not post any photos containing nudity or personal information. We reserve the right, but We have no obligation, to reject any posting or photo that does not comply with the prohibitions set forth in this section. We reserve the right to refuse service to anyone, at our sole discretion.
(3) If Your provide Your email address to Us, You accept and consent to receiving email communications initiated from Us or through Us including, without limitation: emails informing you about events and parties We organize, emails informing You of changes to the Service and emails informing You of promotions that either We provide or that are being provided by third parties. If you choose to respond to promotions that are provided by third parties and in the course of doing so, disclose information to any external service providers, and/or grant them permission to collect information about you, then their use of Your information is governed by their privacy policies. You may opt-out of receiving email communications sent from Us or through Us offering You third party goods or services by contacting us directly or using the opt-out link at the bottom of the email you receive.
(4) You agree that We have no responsibility or liability for the deletion, corruption or failure to store any content maintained or transmitted by Our Service. You acknowledge that features, parameters or other services We provide may change at any time. You acknowledge that We reserve the right to sign out, terminate, delete or purge Your account from the Service if it is inactive. “Inactive” means that you have not signed in to the Service for a particular period of time, as determined by Us, in Our sole discretion.
(5) Our customer service employees are here to make your online experience enjoyable by providing assistance and guidance to You. When speaking to Our customer service employees on the telephone or communicating with them by any other means, You agree not to be abusive, obscene, profane, offensive, sexually oriented, threatening, harassing or racially offensive. Should any of Our customer service employees feel, at any point, threatened or offended by Your conduct, We reserve the right to immediately ban You from the Service.
We are entitled to investigate and ban You from the Service if You have misused the Service, or behaved in a way which could be regarded as inappropriate, unlawful or illegal. The following is a partial, but not exhaustive, list of the types of actions that are illegal or prohibited under this Agreement:
You will not harass or impersonate any person or entity. You will not use any manual or automatic device or process to retrieve, index, data mine, or, in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents. You will not express or imply that any of Your statements are endorsed by Us, without Our specific prior written consent. You will not interfere with or disrupt any Service or any Website, servers or networks connected to any Service or Website. You will not post, distribute or reproduce, in any way, any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. You will not remove any copyright, trademark or other proprietary rights notices contained in the Service or forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Service. You will not use meta tags or code or other devices containing any reference to Us or the Service or the Website connected to the Service in order to direct any person to any other website for any purpose. You will not modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service or any software used on or for the Service or cause or enable others to do so. You will not post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, harm or limit the functionality of any computer software or hardware.
INDEMNITY BY YOU: You will defend, indemnify, and hold Us and Our officers, directors, employees, agents, subsidiaries, joint ventures and third parties harmless, for any losses, costs, liabilities or expenses relating to or arising out of any third party claim concerning Your use of the Service, including:
(I) Your breach of this Agreement; (II) any allegation that any materials that You submit to Us or transmit to the Service infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (III) Your activities in connection with the Service. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
RELEASE: If You have a dispute with one or more of Our other users, you release Us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
ONLINE CONTENT: Opinions, advice, statements, offers, or other information or content made available through the Service, but not directly by Us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. WE DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION ON THE SERVICE AND WE NEITHER ADOPT NOR ENDORSE, NOR ARE WE RESPONSIBLE FOR, THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN US. UNDER NO CIRCUMSTANCES ARE WE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM ANY PERSON’S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SERVICE OR TRANSMITTED TO USERS OF THE SERVICE.
WE RESERVE THE RIGHT, BUT WE HAVE NO OBLIGATION, TO MONITOR THE MATERIALS POSTED IN ANY PUBLIC AREAS OF THE SERVICE. WE SHALL HAVE THE RIGHT TO REMOVE ANY SUCH MATERIAL THAT, IN OUR SOLE DISCRETION, VIOLATES, OR IS ALLEGED TO VIOLATE, THE LAW OR THIS AGREEMENT. NOTWITHSTANDING THIS RIGHT, YOU REMAIN SOLELY RESPONSIBLE FOR THE CONTENT OF THE MATERIALS YOU POST IN ANY PUBLIC AREAS OF THE SERVICE AND IN YOUR PRIVATE EMAIL MESSAGES.
INTELLECTUAL PROPERTY. All intellectual property rights in and to the Service are and shall be owned by Us, absolutely. Those rights include, but are not limited to, database rights, copyright, design rights (whether registered or unregistered), patents, 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 Service are the property of their respective owners.
PRIVACY: You agree to read, review, comply with, uphold and maintain Our Privacy Statement and the terms and conditions thereof. If you are located outside of the United States, please note that any information that you provide is being sent to the United States. By using the Service, you consent to your data being sent to the United States and to such other third parties and jurisdictions as may be involved in the provision and operation of the Service.
DISCLAIMERS: WE PROVIDE THE SERVICE ON AN “AS IS” BASIS AND GRANT NO WARRANTIES OF ANY KIND, EXPRESSED, IMPLIED OR STATUTORY, IN ANY COMMUNICATION WITH OUR REPRESENTATIVES, OR US OR OTHERWISE WITH RESPECT TO THE SERVICE. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, WE DO NOT WARRANT THAT YOUR USE OF THE SERVICE WILL BE SECURE, UNINTERRUPTED, ALWAYS AVAILABLE OR ERROR-FREE, OR THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED. WE DISCLAIM LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, CONNECTIVITY AND AVAILABILITY.
Although each user must agree to Our terms and conditions, We cannot guarantee that each user is at least the required minimum age, nor do we accept responsibility or liability for any content, communication or other use or access of the Service by persons under the age of 18 in violation of this Agreement. Also, it is possible that other members or users (including unauthorized users, or “hackers”) may post or transmit offensive or obscene materials through the Service and that You may be involuntarily exposed to such offensive or obscene materials. It also is possible for others to obtain personal information about You due to Your use of the Service. Those others may use your information for purposes other than what You intended. We are not responsible for the use of any personal information that You disclose on the Service. Please carefully select the type of information that You post on the Service or release to others. WE DISCLAIM ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF OTHER MEMBERS OR USERS (INCLUDING UNAUTHORIZED USERS), WHETHER SUCH ACTS OR OMISSIONS OCCUR DURING THE USE OF THE SERVICE OR OTHERWISE.
LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF PROGRAMS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR SERVICE INTERRUPTIONS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SERVICE DURING THE TERM OF YOUR USE TO THE MAXIMUM EXTENT PERMITTED BY LAW. WE DO NOT CONDUCT BACKGROUND CHECKS ON USERS OF THE SERVICE IN ANY WAY. ANY ATTEMPT BY SPARK TO SCREEN OTHER USERS IS NOT A GUARANTEE OF SAFETY ON THE SERVICE. YOU ARE RESPONSIBLE FOR YOUR OWN SAFETY ON THE SERVICE AND WHEN MEETING OTHER USERS IN PERSON. WE WILL NOT BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL AND/OR CONSEQUENTIAL, INCLUDING BY NOT LIMITED TO PHYSICAL DAMAGES, BODILY INJURY OR EMOTIONAL DISTRESS, ARISING OUT OF THE USE OF THIS SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF YOUR COMMUNICATIONS WITH AND/OR INTERACTIONS WITH ANY OTHER USER OF THE SERVICE, OR ANY INDIVIDUAL YOU MEET VIA THE SERVICE. COMPLAINTS: To resolve a complaint regarding the Service, You should first contact Our customer service department by emailing firstname.lastname@example.org.
RESOLUTION OF DISPUTES:
(a) Arbitration of Any And All Disputes (Other Than Certain Intellectual Property Disputes As Defined Below).
This provision shall apply to the resolution of any dispute arising out of or in any way related to the Websites, the Service, this Agreement, any amendments or addenda thereto, and the subject matter hereof, including without limitation any contract, tort, statutory or equity claims between You and Us or Our officers, directors, employees, agents, subsidiaries, or joint ventures (the “Dispute”); provided, however,that any claims specifically described in subparagraph (b) below will not be included in the definition of Dispute. In the event of any Dispute, the parties are encouraged to attempt to resolve the Dispute by informal means. If the parties are not able to do so, the Dispute will be resolved only by binding arbitration.
Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. Any Dispute shall be subject only to binding arbitration. The parties expressly agree that there shall be no jury trial or right to a jury trial, or right to any other proceeding to resolve any Dispute in any court. In the event of any Dispute, both parties agree that this Agreement will be governed, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1-9 (“FAA”) to the maximum extent permitted by applicable law.
All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties, and any party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive, or declaratory relief in an appropriate court of law.
The parties expressly agree that any Dispute is personal to them, and any Dispute shall only be resolved by an individual arbitration. Neither party agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither party agrees that a Dispute can be brought as a class or representative action outside of arbitration, or on behalf of any other person or persons. The parties agree that that a Dispute may only be resolved through an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding.
The arbitration of the Dispute will be administered by the American Arbitration Association (“AAA”) or, in the event the AAA declines or is unable to administer the arbitration, by an arbitration forum or arbitrator that You and Us mutually agree upon. If, after making a reasonable effort, You and Us are unable to agree upon an arbitration forum or arbitrator, the AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be conducted in accordance with the AAA’s Commercial Arbitration Rules (“Commercial Rules”) and, when deemed appropriate by the arbitration forum or arbitrator, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Consumer Procedures”), or the appropriate rules of any alternative arbitration forum selected by You and Us or appointed by a court, subject to the following modifications:
1. The arbitration will be conducted before a single arbitrator who will be a licensed attorney or a former judge and will have at least five (5) years of legal experience in the resolution of commercial disputes.
2. As limited by the FAA, the terms of this Agreement, and the applicable AAA rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute. This does not include the power to conduct a class arbitration or a representative action, which is prohibited by the terms of this agreement as stated above. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding, or any proceeding on behalf of or involving more than one person or persons.
3. The parties may take discovery through interrogatories, depositions and requests for production that the arbitrator determines to be necessary and appropriate.
4. In making any award, the arbitrator will be restricted by the “Limitation of Liability” provisions in this Agreement set forth above, and will not have jurisdiction to make an award to any party to the arbitration contrary to the Limitation of Liability provisions; provided however that if the enforceability of any of these restrictions is limited by the applicable substantive law or by the AAA rules, that restriction will only be enforced to the extent permitted by such law or rules.
5. The prevailing party in any of the following matters (without regard to the Limitation of Liability provisions) shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any of the following circumstances: (i) a motion which any party is required to make in any court to compel arbitration of a Dispute; (ii) any appeal of an arbitration award, whether to the arbitrator or the courts, for the purpose of vacating or modifying the award; or (iii) any action to enforce the confidentiality provisions stated herein.
6. We will pay the amount of any arbitration costs and fees charged by the AAA, subject to Our right to request that the arbitrator allocate the ultimate responsibility for that fee in a fair and reasonable manner. Unless the arbitrator finds that you are economically unable to pay a share of the arbitrator’s fee or that it is otherwise inappropriate for you to do so, the arbitrator ultimately may decide that you are responsible for some portion of that fee in the arbitrator’s discretion.
The AAA Commercial Rules and Consumer Procedures, and other information about the AAA, are available from the AAA, which can be contacted by mail at 1633 Broadway, Floor 10, New York, New York 10019, by telephone at (800) 778-7879, or through its website at www.adr.org.
(b) This Contract does not require You or Us to submit to arbitration any Dispute involving Our intellectual property rights in and to the Websites or the Service, including without limitation (1) claims of infringement or misappropriation of any United States or foreign copyright, patent, trade secret, trademark, service mark or trade dress, (2) claims alleging violations of Title 17 of the United States Code, Sections 1201 and/or 1202, or of any similar foreign law, or (3) in any matter that involves any of the foregoing claims, for resolution or decision of any question of fact or law required to resolve such claim, including, but not limited to, questions required to decide or rule with respect to the infringement, misappropriation, validity, enforceability or ownership of any copyright, patent, trade secret, trademark, service mark or trade dress or with respect to any remedy or relief at law or in equity for any such infringement or misappropriation or for any violation of such Sections 1201 and/or 1202.
(c) With the exception of the provision above that the enforceability of this section on “Resolution of Disputes” is governed both procedurally and substantively by the FAA to the maximum extent permitted by applicable law, this Agreement otherwise will be construed and enforced in accordance with the laws of the State of California applicable to contracts entered into and performed in California to the maximum extent permitted by law (and without giving effect to California’s conflict of law principles). This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
(d) You and We acknowledge and agree that any violation of this “Resolution of Disputes” section of this Agreement may cause the parties irreparable harm, and therefore You and We agree that the parties will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that the parties may have for a breach of the “Resolution of Disputes” section of this Agreement.
LIMITATION OF TIME PERIOD TO COMMENCE ANY DISPUTE: Regardless of any statute of limitations or law to the contrary, and to maximum extent permitted by applicable law, any Dispute arising out of or related to the Websites, the Service, or this Agreement must be filed within six (6) months after the date in which the incident giving rise to the Dispute occurred; provided that, if the substantive law applicable to the arbitration prohibits the parties from agreeing to this limitations period, then the limitations period under the applicable substantive law shall control. The failure of a party to file an arbitration claim within the applicable limitations period shall constitute a waiver by that party of its right to bring such a claim relating to any Dispute in any form, and a complete bar to any claim based on any Dispute, and the arbitrator shall not have jurisdiction to make a determination for a party that has not brought its Dispute for determination within the applicable limitations period.
SEVERABILITY: If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect.