All references to "you" or "your," as applicable, mean the person who accesses, uses, and/or participates in the Platform in any manner, and each of your heirs, assigns, and successors. If you use the Platform on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of the Terms will be deemed an acceptance by that entity, and "you" and "your" herein shall refer to that entity.
"Collective Content" means User Content and SPORKEY Content together.
"Content" means text, graphics, images, music, software, audio, video, information or other materials, including but not limited to profile information, Facility/Services requests, quotes, message threads, reviews, scheduling and calendar information, and other information or materials available on or through the Platform.
"Customer Member" means a Member who is registered to receive quotes for Facility/Services, requests quotes for Facility/Services, or otherwise uses the Platform to receive, pay for, review, or facilitate the receipt of Facility/Services.
"Member" means a person who completes SPORKEY's account registration process or a person who submits or receives a request through SPORKEY, including but not limited to FMs and Customer Members.
"Platform" means all SPORKEY websites, mobile or other applications, software, processes and any other services provided by or through SPORKEY.
"Facility/Services" means the services listed, quoted, scheduled, offered or provided by FMs, or sought, scheduled or received by Customer Members, through the Platform.
"Service Member" means a Member who is registered to send quotes for Facility/Services, sends quotes for Facility/Services, or otherwise uses the Platform to offer, provide, receive payment for, or facilitate the provision of Facility/Services.
"User Content" means all Content submitted, posted, uploaded, published, or transmitted on or through the Platform by any Member or other user of the Platform, including but not limited to photographs, profile information, descriptions, postings, reviews, and payments made through the Platform, but excluding SPORKEY Content and Feedback.
Access to and use of the Platform is available only to individuals who are at least 18 years old and can form legally binding contracts under applicable law. By accessing or using the Platform, you represent and warrant that you are eligible.
By registering or using the Platform to offer, post or host games, Facility Members (FM) represent and warrant that they, and the employees, agents, contractors, and subcontractors who may perform work for them, are properly and fully qualified and experienced, and licensed, certified, bonded, and insured, as required by applicable laws or regulations to which they may be subject in the jurisdiction(s) in which they offer their Facilities/Services and in relation to the specific job they are performing.
SPORKEY is not in the business of providing Facilities/Services. FMs understand and agree that by creating and maintaining an account on the Platform, they receive only the ability to use the SPORKEY Platform to access persons interested in receiving their facility and related services, including but not limited to the ability to message Customer Members or schedule appointments, that facilitate the provision of Services. FMs understand and agree that using the Platform does not guarantee that any SPORKEY users will engage them for using their Facility/Services.
FMs understand and agree that they are customers of SPORKEY, and are not SPORKEY employees, joint ventures, partners, or agents. FMs acknowledge that they set or confirm their own prices, provide their own equipment, and determine their own schedules & slots. SPORKEY does not control, and has no right to control, the services a Service Member provides (including how the Service Member provides such services) if the Service Member is engaged by a Customer Member, except as specifically noted herein.
SPORKEY, as permitted by applicable laws, obtains reports based on publicly available information regarding FMs, which may include history of criminal convictions or sex offender registration, and we may limit, block, suspend, deactivate, or cancel a Service Member’s account based on the results of such a check.
Users may access the Platform without registering for an account. To access and participate in certain features of the Platform, you will need to create a password-protected account ("Account"). You may register for an Account using your existing Facebook account and log-in credentials (your "Third-Party Site Password"). You agree to provide accurate, current, and complete information during the registration or request submission process and at all other times when you use the Platform, and to update information to keep it accurate, current, and complete. You are solely responsible for safeguarding your SPORKEY password and, if applicable, your Third-Party Site Password. You are solely responsible for all activity that occurs on your Account, and you will notify SPORKEY immediately of any unauthorized use. SPORKEY is not liable for any losses by any party caused by an unauthorized use of your Account. Notwithstanding the foregoing, you may be liable for the losses of SPORKEY or others due to such unauthorized use.
Subject to your compliance with these Terms, SPORKEY grants you a limited, non-exclusive, revocable, nontransferable, and non-sublicensable license to reproduce and display Collective Content (excluding any software source code) solely for your personal and non-commercial use and only in connection with your access to and participation in the Platform. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or Collective Content, except as expressly permitted in these Terms. The Platform and Collective Content are provided to you AS IS. If you download or print a copy of Collective Content for personal use, you must retain all copyright and other proprietary notices contained thereon. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by SPORKEY or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Platform, you hereby grant to SPORKEY a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such User Content on, through, by means of or to promote, market or advertise the Platform or Facility/Services, or for any other purpose in our sole discretion, except that private messaging through the Platform will not be used by SPORKEY in public advertising. In the interest of clarity, the license granted to SPORKEY shall survive termination of the Platform or your Account. SPORKEY does not claim ownership rights in your User Content and nothing in these Terms will be deemed to restrict rights that you may have to use and exploit any such User Content submitted, posted, uploaded, published, or transmitted on or through the Platform by you.
You acknowledge and agree that you are solely responsible for all User Content that you make available on or through the Platform. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all User Content that you make available on or through the Platform or you have all rights, licenses, consents and releases that are necessary to grant to SPORKEY the rights in such User Content, as contemplated under these Terms; and (b) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or SPORKEY's use of your User Content (or any portion thereof) on, through or by means of the Platform will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You agree that SPORKEY may proofread, summarize or otherwise edit and/or withdraw your User Content ,and you understand it remains your sole responsibility to monitor your User Content and ensure that such edited Content is accurate and consistent with your representations and warranties in these Terms.
SPORKEY reserves the right, at any time and without prior notice, to remove or disable access to User Content that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Platform or users, or for any other reason.
As a user of the Platform, you may not:
In connection with use of SPORKEY's Platform, SPORKEY charges certain Fees ("SPORKEY Fees" or "Fees"). Currently fees is recovered as percentage of the transaction value from the FMs. Fees for additional products or services, including ongoing products or services, will be provided to you before you use such products or services.
SPORKEY may also charge penalty Fees for fraud, misconduct or other violations of these Terms, as determined in our sole discretion. Information about current penalty Fees is available in the policy or support center.
You agree to pay these Fees. Information about current penalty Fees is available in the policy or support center. You agree to pay all applicable Fees or charges based on the Fee and billing terms then in effect, regardless of whether you have an active Account. Charges shall be made to your credit card, PayPal, bank account or other payment method designated at the time you make a purchase or register for a service. If you do not pay on time or if SPORKEY cannot charge a credit card, PayPal or other payment method for any reason, SPORKEY reserves all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys' fees, in our pursuit of payment. You explicitly agree that all communication in relation to delinquent accounts or Fees due will be made by electronic mail or by phone. Such communication may be made by SPORKEY or by anyone on its behalf, including but not limited to a third-party collection agent. If you cancel your Account at any time, you will not receive any refund. If you have a balance due on any Account, you agree that SPORKEY may charge such unpaid Fees to your credit card or otherwise bill you for such unpaid Fees. You understand and agree that you are solely responsible for determining your own tax reporting and sales tax collection requirements in consultation with tax advisers, and that we cannot and do not offer specific tax advice to either FMs or Customer Members. All sales on SPORKEY are final and non-refundable.
Payment processing services for FMs on SPORKEY are provided by Stripe & Paypal, and, where applicable, may include money transmission services pursuant to licenses held by Stripe/Paypal. Payment processing services provided by Stripe are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. Payment processing services provided by Paypal are subject to Paypal Account and Service Agreement. By agreeing to these terms or continuing to operate as a Service Member on SPORKEY, you agree to be bound by the Stripe Connected Account Agreement and Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of SPORKEY enabling payment processing services through Stripe, you agree to provide SPORKEY accurate and complete information about you and your business, and you authorize SPORKEY to share with Stripe this information and transaction information related to your use of the payment processing services provided by Stripe.
If any Member does not make a marketplace payment on time or if SPORKEY cannot charge a credit card, PayPal or other payment method for any reason, SPORKEY reserves all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys' fees, in our pursuit of payment. You explicitly agree that all communication in relation to delinquent accounts or payments due will be made by electronic mail or by phone. Such communication may be made by SPORKEY or by anyone on its behalf, including but not limited to a third-party collection agent. If you cancel your Account at any time, you will not receive any refund. If you have a balance due on anyAccount, you agree that SPORKEY may charge such unpaid payments to your credit card or otherwise bill you for such unpaid payments.
SPORKEY values our FMs and Customers, and we understand that occasionally disputes may arise between or among them. Our goal is to provide tools to help users resolve such disputes independently. In the rare event a dispute initiated by either a Service Member or a Customer Member cannot be resolved independently, you agree, at SPORKEY's request, to participate with good faith, to the extent you are reasonably able to do so, in a neutral resolution, mediation, or arbitration process conducted by SPORKEY or a neutral third-party mediator or arbitrator selected by SPORKEY. Notwithstanding the foregoing, you acknowledge and agree that SPORKEY is under no obligation to become involved in or impose resolution in any dispute between or among users or any third party.
SPORKEY Content is protected by copyright, trademark, and other laws of the United States, foreign countries, and international conventions. Except as expressly provided in these Terms, SPORKEY and its licensors exclusively own all right, title, and interest in and to the Platform and SPORKEY Content, including all associated intellectual property rights. All trademarks, service marks, logos, trade names and any other proprietary designations of SPORKEY used herein are trademarks or registered trademarks of SPORKEY. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective owners.
You acknowledge and agree that all feedback, comments, questions, and suggestions concerning SPORKEY or our services, including the Platform (collectively, "Feedback") you provide to SPORKEY are the sole and exclusive property of SPORKEY. You hereby irrevocably assign to SPORKEY and agree to irrevocably assign to SPORKEY all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have. At our request and expense, you will undertake any tasks we may reasonably request to assist us in acquiring, perfecting and maintaining intellectual property rights and other legal protections for the Feedback. SPORKEY shall have no obligation concerning the Feedback, including (but not limited to) having no obligation to return any materials or acknowledge receipt of any Feedback. By sending or otherwise transmitting Feedback to SPORKEY, you represent and warrant that you have the right to disclose the Feedback and the Feedback does not violate the rights of any other person or entity. This Feedback section shall survive any termination of your Account or the Platform.
We expect users to respect copyright law. In appropriate circumstances we will terminate the Account of any user who repeatedly infringes or is believed to be repeatedly infringing the rights of copyright holders. Please see our Copyright & DMCA Policy for more information.
SPORKEY does not endorse any Member, user or any Facility/Services, and SPORKEY is not a party to any agreements between or among users, Members or third parties. No agency, partnership, joint venture, or employment is created as a result of the Terms or any user's or Member's use of any part of the Platform, including but not limited to any scheduling or other services. Neither SPORKEY nor any Members or users of the Platform may direct or control the day-to-day activities of the other, or create or assume any obligation on behalf of the other. Members are required by these Terms to provide accurate information, and although SPORKEY may undertake additional checks and processes designed to help verify or check the identities or backgrounds of users, we do not make any representations about, confirm, or endorse any user or their purported identity or background, regardless of the specific SPORKEY services they are using or any involvement by SPORKEY personnel in providing or scheduling those services.
Any reference on the Platform to a user being licensed or credentialed in some manner, or "badged," "best of," "top," "background checked" or "gold," "silver," or "bronze" (or similar language) designations indicates only that the user has completed a relevant account process or met user review standards, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by SPORKEY and is not verification of their identity and whether they or their Facility/Services are licensed, insured, trustworthy, safe or suitable. Instead, any such description is intended to be useful information for you to evaluate when you make your own decisions about the identity and suitability of others whom you contact or interact with via the Platform. You should always exercise responsibility, due diligence and care when deciding whether to have any interaction with any other user. SPORKEY is not responsible for any damage or harm resulting from your interactions with other users.
The Collective Content may contain links to third-party websites, offers, or other events/activities not owned or controlled by SPORKEY. We do not endorse or assume any responsibility for any such links, and if you access them, you do so at your own risk.
By using the Platform, you understand and agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users or other third parties will be limited to a claim against those particular users or other third parties. You agree not to attempt to impose liability on or seek any legal remedy from SPORKEY with respect to such actions or omissions.
Without limiting any other rights reserved herein, SPORKEY may, in its sole discretion, take any action permitted by law for any violation of these Terms or any other policy or agreement between you andSPORKEY, including but not limited to removing User Content you posted, limiting your Account access, requiring you to forfeit certain funds or paid Fees, assessing monetary penalties or costs, terminating your Account, decreasing your status or search rank, canceling quotes or postings, blocking access, investigating you, and/or cooperating with law enforcement agencies in investigation or prosecution.
We may, in our discretion, with or without cause, with or without prior notice and at any time, decide to limit, block, suspend, deactivate or cancel your SPORKEY Account in whole or in part. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Platform or your User Content, or receive assistance from SPORKEY support teams; (b) if appropriate in our sole discretion, we may communicate to other users that your Account has been terminated, blocked, suspended, deactivated, or cancelled, and why this action has been taken; and (c) you will not be entitled to any compensation for Platform services or Facility/Services cancelled or delayed as a result of Account termination. You may cancel your use of the Platform and/or terminate your Account at any time by following the "Settings" link in in your profile, clicking "Account," and clicking "Deactivate Account." Please note that if your Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Platform, including, but not limited to, any reviews.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and SPORKEY agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
This Section is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of this Agreement.The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to these Terms, you agree to resolve any and all disputes with SPORKEY as follows:
Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. You can reach SPORKEY's support department at email@example.com. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim,question, or disagreement directly through consultation with the SPORKEY support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
arbitrator's award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To start an arbitration, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com ); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 620 eighth avenue, 34 th floor , NY 10018 and (c) send one copy of the Demand for Arbitration to SPORKEY at 308 Brandon Blvd, Freehold, NJ 0778, ATTN: Legal.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, SPORKEY will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, SPORKEY will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in the State of California, United States of America, and you and SPORKEY agree to submit to the personal jurisdiction of any federal or state court in San Francisco County, California in order to compelarbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis.YOU AND SPORKEY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
30-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending (from the email address you use on SPORKEY) written notice of your decision to opt out to opt-out@SPORKEY.com with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of your first use of the Platform; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, SPORKEY also will not be bound by them.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Platform.
Survival: This Arbitration and Class Action Waiver section shall survive any termination of your Account or the Platform.
The Terms and the relationship between you and SPORKEY shall be governed in all respects by the laws of the State of New Jersey, without regard to its conflict of law provisions. You agree that any claim or dispute you may have against SPORKEY that is not subject to arbitration must be resolved by a court located in Monmouth County, New Jersey, except as otherwise agreed by the parties. You hereby waive any and all jurisdictional and venue defenses otherwise available.
YOUR USE OF THE PLATFORM, FACILITY/SERVICES, OR COLLECTIVE CONTENT SHALL BE SOLELY AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT SPORKEY DOES NOT HAVE AN OBLIGATION, BUT RESERVES THE RIGHT FOR ANY REASON, TO (A) MONITOR OR REVIEW USER CONTENT; OR (B) FOR ANY PERMISSIBLE PURPOSE, CONDUCT IDENTITY VERIFICATION, BACKGROUND (INCLUDING CRIMINAL BACKGROUND) OR REGISTERED SEX OFFENDER CHECKS ON ANY MEMBER, INCLUDING BUT NOT LIMITED TO FMS AND CUSTOMER MEMBERS. THE PLATFORM IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, SPORKEY AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF OR IN TRADE; ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THIS PLATFORM OR THE FACILITY/SERVICES OFFERED ON OR THROUGH THIS PLATFORM; AND ANY WARRANTIES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS PLATFORM, INCLUDING WITHOUT LIMITATION ALL COLLECTIVE CONTENT. SPORKEY MAKES NO WARRANTY THAT THE PLATFORM OR FACILITY/SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. SPORKEY ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE PLATFORM. SPORKEY SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA, INFORMATION, MATERIALS, SUBSTANCE, OR COLLECTIVE CONTENT POSTED, TRANSMITTED, OR MADE AVAILABLE VIA THE PLATFORM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SPORKEY OR THROUGH THE PLATFORM, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OR MEMBERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM,INCLUDING BUT NOT LIMITED TO ANY CUSTOMER MEMBERS, FMS OR SERVICE RECIPIENTS. YOU UNDERSTAND THAT SPORKEY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE PLATFORM OR TO REVIEW OR VET ANY FACILITY/SERVICES. SPORKEY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE PLATFORM OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON AND GIVE OR RECEIVE FACILITY/SERVICES. SPORKEY EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OR THIRD PARTIES.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM AND COLLECTIVE CONTENT, YOUR OFFERING OR PROVIDING FACILITY/SERVICES OR REQUESTING OR RECEIVING FACILITY/SERVICES THROUGH THE PLATFORM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF SPORKEY OR THIRD PARTIES, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU. NEITHER SPORKEY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM WILL BE LIABLE (WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SPORKEY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE) FOR: (A) ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL; (B) SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE; (C) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; (D) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS; (E) THE USE OF OR INABILITY TO USE THE PLATFORM, FACILITY/SERVICES OR COLLECTIVE CONTENT; (F) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE PLATFORM OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM; OR (G) YOUR OFFERING OR PROVIDING FACILITY/SERVICES OR REQUESTING OR RECEIVING FACILITY/SERVICES THROUGH THE PLATFORM.
IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF SPORKEY AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING FROM OR RELATING TO THE TERMS, PLATFORM, FACILITY/SERVICES, AND/OR COLLECTIVE CONTENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR COLLECTIVE CONTENT OR IN CONNECTION WITH ANY FACILITY/SERVICES OR INTERACTIONS WITH ANY OTHER USERS EXCEED THE TOTAL AMOUNT OF FEESACTUALLY PAID TO SPORKEY BY YOU HEREUNDER, OR ONE HUNDRED US DOLLARS IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE.
THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.
You agree to release, defend, indemnify, and hold SPORKEY and its affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Platform or your violation of these Terms; (b) your User Content or the Collective Content; (c) your interaction with any Member or user; and (d) the request or receipt or offer or provision of Facility/Services by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with such Facility/Services.
Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold SPORKEY and its affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms.
If you are a California resident, you waive California Civil Code Section 1542, which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
Force Majeure: Other than payment obligations, neither SPORKEY nor you shall be liable to the other for any delay or failure in performance under the Terms arising out of a cause beyond its control and without its fault or negligence. Such causes may include but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of declared or undeclared war, acts of regulatory agencies, or national disasters.
No Third-Party Beneficiaries: You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
Contacting You and E-SIGN Consent: You agree that SPORKEY may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Platform. With your consent, SPORKEY or FMs may also contact you by telephone or through text messages. If you have agreed to receive text messages or telephone calls from SPORKEY or FMs, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by sending an email to firstname.lastname@example.org with "Revoke Electronic Consent" in the subject line. To view and retain a copy of this disclosure or any information regarding your enrollment in this program, you will need (a) a device (such as a computer or mobile phone) with a web browser and Internet access; and (b) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, send an email to email@example.com with contact information and the address for delivery.
Waiver: No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such term or any other term, and SPORKEY's failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
Statute of Limitations: You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Platform or the Facility/Services offered therein must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
Section Headings: The section headings in these Terms are for convenience only and have no legal or contractual effect.
Contact Information: If you have any questions about these Terms or the Platform, please contact us by sending an email to firstname.lastname@example.org, or by writing to Sporkey LLC 308 Brandon Blvd Freehold, NJ 0778