Earth Sparks Terms of Use
Last Updated December 18, 2022
Before reading this agreement, we recommend that you read our definitions in section 20 or in our Definitions Document.
Welcome to Earth Sparks – the fun way to breathe life into new ideas,
shape technologies, rediscover that old project gathering dust, the book you
wanted to write, the game or film you wanted to make or the business you wanted
to start.
Every idea is worth exploring. We welcome
and encourage you to use our Ecosystem to use your skills, experiences,
resources, and connections to help Members develop and launch their ideas. But
to ensure that every idea has the necessary space to grow on the Ecosystem, we
have a few ground rules to go over
.
You may use the Ecosystem for a variety of reasons, including launching
a Project, making a Pledge to a Project, purchasing Earth Sparks products, or
even being actively involved in the development of new ideas. The terms
contained herein govern all uses of the Ecosystem and are designed with you and
your ideas in mind. By using this Ecosystem and the Services, in addition to
any Additional Policies applicable to any particular features,
Content and functionality of the Services, offered by Earth Sparks, Members agree
to be bound by these Terms.
Earth Sparks may amend the Terms at any time in its sole discretion by
posting a revised version of the Terms. Unless stated otherwise, access to or
continued use of the Services after the effective date of any revised Terms
constitutes your acceptance of the revised Terms. If We make any material
change to these Terms, We will notify Members by posting a notice on Our Ecosystem,
through the Services, or by other means We deem appropriate.
1.
What is
Earth Sparks?
Earth Sparks is an ideas ecosystem – a place that empowers prospective
entrepreneurs with disruptive technologies, creatives with inspiring ideas,
non-profits who help their communities and life-journey seekers with amazing
stories to tell.
Earth Sparks is a gamified, incentive-based marketplace with connections
to prospective customers, access to industry gurus, interaction with peers,
somewhere to make strategic partnerships, and find early adopters with
incentive-based crowdfunding.
Earth Sparks is for both those people who already know what they want to
create and those people who wish someone else would invent something to
solve their problems. Earth Sparks is a bubble of energy where Members work
together to create new ventures.
2.
Members Obligations
We grant you a limited, non-exclusive, non-transferable, and revocable
license to use Our Services—subject to the Terms and the following restrictions
in particular:
a.
It’s your account
. To use our Services, you will need to register and create an account
with your legal name, date of birth, username and
password. You must provide us with accurate and complete information, and you
must update your account information as needed to keep the information accurate
and complete. You may not use your account to abuse, harass, offend, threaten,
or intimidate any other user. You are solely responsible for maintaining the
confidentiality of your account and for all activities associated with or
occurring under your account. If you suspect or discover any unauthorized use
of your account, you should notify Earth Sparks immediately by
contacting us
. We are not
responsible for any loss or damage arising from your failure to comply with the
foregoing requirements or as a result of use of your
account with or without your knowledge. You can terminate your account at any
time by clicking “
Cancel
Membership
” on the Menu. We may need to retain certain information as
required by law or as necessary for Our business purposes. These Terms,
including our rights to User Content, survive termination of an account.
b.
Age of consent
. You need to be at least 13 years old, or old enough to form a binding
contract where you live, to sign up for an account and use Our Services. Anyone
under the age of 13 may use Our Services through an account owned by a parent
or legal guardian where the parent has provided affirmative consent and under
their direct supervision. Such parent or legal guardian is responsible for
any and all account activity conducted on their
account by a minor.
c.
It’s the law
. You may not take any action that infringes or violates other people’s
rights, violates the law of any jurisdiction, or breaches any contract or legal
duty you may have toward any party.
d.
The truth matters
. Do not post information you know is false, misleading, or inaccurate.
Do not do anything deceptive or fraudulent.
e.
Be respectful
. We know many people have the ability to
respect the rights of others. Use of this Ecosystem, including any messaging
systems, does not change that. You may not threaten, abuse, harass, defame, or
engage in behavior that is libelous, tortious, obscene, profane, or invasive of
another’s privacy. Do not distribute any software viruses that can interfere
and harm any other program or hardware. We know automation sometimes can be
helpful, but Members shall not use on the Ecosystem any software application,
including deep-link, page-scrape, robot, spider, or other automatic device,
program, software, or methodology to access, acquire, copy, create or obtain
any portion of the Ecosystem, including any attempts to obtain rewards on the Ecosystem.
You agree not to use any device, software or routine
to interfere or attempt to interfere with the proper working of the Ecosystem
or with any other person’s use of the Ecosystem.
f.
Who wants spam
? In order to avoid spam and unsolicited
communications, you may not distribute unsolicited or unauthorized advertising
or promotional material, or any junk mail, spam, or chain letters. Do not run
mail lists, listservs, or any kind of autoresponder or spam on or through the Ecosystem.
g.
We are all in this together
. Do not engage in activities that affect the
functioning of the Ecosystem. You may not bypass any measures that We have put
in place to secure Our Ecosystem or Services, take actions to gain unauthorized
access to any system, data, passwords, or other Earth Sparks or User
information or Services, reverse engineer or take apart any aspect of the
Services to access any underlying information, or use any kind of software to
“crawl” or “spider” any part of the Ecosystem.
h.
Other Offerings and Products
. Members may purchase additional goods, products and
services Earth Sparks offers through its Ecosystem or marketplace. To order any
product or service, you must be signed into your Earth Sparks account. By
providing Earth Sparks an approved payment method, you represent and warrant
that you are authorized to use the designated payment method, and you authorize
our Payment Service Provider (“PSP”) to charge your payment method for the
total amount of your order, including any applicable taxes and fees. If the
payment method you provide cannot be verified, is invalid or is otherwise not
acceptable, your order may be suspended or cancelled. You must resolve any
problem we encounter in order to proceed with your
order.
i.
Member Rewards
. The Ecosystem has been gamified to enable you to access enhanced
Member benefits. As part of the Earth Sparks community, you may become eligible
to receive Member Rewards whenever you interact with or introduce new members
into the Ecosystem. Such members must be registered with Earth Sparks for you
to be eligible for a reward.
Discover more about
Member Rewards.
Member Rewards are not guaranteed
and the value of Member Rewards may change periodically. You may receive Member
Rewards in the following, non-exclusive and non-exhaustive ways:
i.
When you
interact with specific features of the Ecosystem;
ii.
When you or
anyone you introduce to Earth Sparks provide services to other members of the
Ecosystem community;
iii.
When you or anyone
you introduce to Earth Sparks makes a purchase from an Ecosystem store;
iv.
When you or anyone
you introduce to Earth Sparks makes a Successful Pledge to a Project; or
v.
When you or anyone
you introduce to Earth Sparks launches a Project that is successfully backed by
Members of the Earth Sparks community.
Earth Sparks is not responsible for your efforts to
refer any individual to the Earth Sparks ecosystem. Before seeking to do any
form of marketing or sharing of Earth Sparks, please check that it is allowed
or requires authorization under our
Marketing Policy.
You agree not to engage in any illegal, fraudulent, or
otherwise unauthorized conduct in order to obtain any
Member Rewards. Any unlawful conduct is strictly prohibited and will result in
that Member’s account being terminated. Members further agree not to use any
automated software to obtain or create Member Rewards without authorization.
Members shall be solely responsible for their operations in acting under this
agreement to receive Member Rewards.
You are responsible for paying any additional fees or
taxes associated with Member Rewards.
Member Rewards are not guaranteed
and Members are not entitled to nor have any proprietary interest in Member
Rewards or any other form of commissions.
Members are not eligible to receive Member Rewards or
any other compensation from Us if Members engage in fraud, unlawful conduct, or
otherwise misuse of Earth Sparks. If at any point You receive Member Rewards
and/or other commissions due to fraud, unlawful conduct, or misuse of Earth
Sparks, Members agree any earned Member Rewards and/or commissions shall become
frozen in Your account until the dispute is settled and that Earth Sparks may,
at its sole discretion, remove Member Rewards and/or commissions from Your
account.
j.
Fees
. There are no
fees for creating an account on the Ecosystem or by simply using the Ecosystem.
We hope you follow these policies. But should you violate any of the
Terms of Use, we reserve the right to terminate, suspend, or take any other
action related to your account at Our sole discretion. You may not access Our Ecosystem
or Services if We have prohibited you from doing so.
3.
Viruses,
hacking, and other offences
Viruses can corrupt software, destroy hardware, and steal personal
information. We want this Ecosystem to be welcoming to everyone so You must not
misuse this Ecosystem by knowingly introducing viruses, trojans, worms, logic
bombs or other material which is malicious or technologically harmful (together
“Viruses”). You must not attempt to
gain unauthorized access to our Ecosystem, the server on which our Ecosystem is
stored or any server, computer or database connected
to this Ecosystem. You must not attack this Ecosystem via a denial-of-service
attack.
By breaching this provision, you may commit a criminal offence under the
Computer Misuse Act 1990. We will report any such breach to the relevant law
enforcement authorities and we will co-operate with
those authorities by disclosing your identity to them. In the event of such a
breach, your rights to use this Ecosystem will cease immediately.
We will not be liable for any loss or damage caused by a
denial-of-service attack or Viruses that may infect your computer equipment,
computer programs, data or other proprietary material
due to your use of this Ecosystem or to your downloading of any material posted
on it, or on any website linked to it.
4.
Project Creator
Obligations
The Creator Hub
enables Our Members to create, develop, share, and seek funding for their Projects.
When you create a Project in the Ecosystem you are known as a Project Creator.
Project Creators may, but are not obliged to, request the help of other
Members who may offer you their relevant skills, experience, resources, and
connections under a separate agreement between you and the Member. Such help
may include, but is not limited to:
i.
Specialized
knowledge or connections that may improve your idea;
ii.
Professional
knowledge such as legal, financial or web development;
iii.
Market
research;
iv.
Marketing,
advertising, and product placement;
v.
Project
development; and
vi.
Translation.
Prohibited Projects
. Where a
Project Creator intends to seek funding via the Ecosystem, the Project must be approved
by Earth Sparks before being launched on the Ecosystem. Earth Sparks reserves
the right to approve or reject any Project. Earth Sparks has identified
categories of
Acceptable
Projects
to assist Project Creators in developing a Project, but this
list does not guarantee that Earth Sparks will approve the Project for launch.
When Project Creators ask for Pledges, you understand that you are entering
into separate legal agreements with both Earth Sparks and with Members, and the
following rules apply (in addition to all the other Terms and Additional
Policies).
a.
Make good
faith efforts to fulfil the items in the Project, Purchases or any sellable
information associated with a Project in the timeframe that is communicated to Members.
b.
Immediately
notify Members if there are any obstacles or delays. If you cannot fulfill
delivery of the requested item or idea, immediately issue refunds to the
Members. Earth Sparks also reserves the right to refund Members from the
Project Creator’s Member Rewards should the Project Creator not provide
immediate refunds.
c.
Be responsive.
Respond promptly and truthfully to all questions poised
by Members. Provide substantive and quality updates as per the guidelines given
in the Creator Hub.
d.
Be mindful and
honest. You agree not to (and not to allow any third party to): (a) take any
action that imposes or may impose (in our sole determination) an unreasonable
or a disproportionately large load on the Ecosystem or our infrastructure; (b)
utilize any device, software, or routine that will interfere or attempt to
interfere with the functionality of the Ecosystem; (c) use the Ecosystem in any
way that is illegal, harmful, fraudulent, deceptive, threatening, harassing,
defamatory, obscene, or otherwise objectionable, as we may determine in our
sole discretion; (d) attempt, in any manner, to obtain the username, password,
User Account, or other security information from any other user of the Ecosystem;
(e) violate the security of any computer network or crack any passwords or
security encryption codes; or (f) post or transmit any file or email which
contains viruses, worms, Trojan horses, or any other damaging or destructive
elements.
e.
Earth Sparks
uses Member Rewards to reward Members who share your Project. Project Creators can
increase the Member Rewards at their discretion as per the guidelines given in
the Creator Hub. In
such cases this will be automatically deducted from the funds the Project
receives at the end of a successful campaign. Member Rewards are not guaranteed and Earth Sparks is not responsible for offering,
determining, setting or guaranteeing any Member Rewards.
f.
It’s the law.
Comply with all applicable laws and regulations in the use of Successful Pledges
and delivery of Purchases.
g.
Respect
Privacy. When you use the Services by creating a Project, you may receive
information about other Members, including personally identifiable information
(“PII”), such as names, e-mail addresses, and physical addresses. This
information is provided to you purely for the purpose of fulfilling the Rewards
for the applicable Project and other Services, and may
not be used or disclosed for other purposes, including cross-promotional
marketing, without separate, verifiable consent from the User obtained
independently from Earth Sparks or the Service. You will maintain, and be
required to produce if requested, records of all such verifiable consent.
i. Comply
with EEA Data Controller Obligations. As a Project Creator, you will
independently fulfill all duties required of data controllers under applicable
EEA data protection law (such law shall include, but not be limited to, the EU
General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”);
(iii) the EU e-Privacy Directive (Directive 2002/58/EC), including subsequent
variations, such as the Regulation of the European Parliament and of the
Council concerning the respect for private life and the protection of personal
data in electronic communications and repealing Directive 2002/58/EC (“ePrivacy Regulation”), if enacted).
ii. Your data
controller duties include:
i. Determining
and qualifying the necessary legal basis or bases for your collection or
processing of personal information;
ii. Managing
and reporting security incidents;
iii. Transfers;
iv. Entering into contracts only with data processors that
provide adequate protections for personal data and including appropriate
contractual language;
v. Maintaining
records of your data processing activities;
vi. Conducting
any required data protection impact assessments; and
vii. Implementing
and maintaining all measures required pursuant to Article 32 of the GDPR.
iii. Respond to
EEA Data Subject Requests. You and Earth Sparks
will have an independent
obligation to respond to any requests received by either of us from EEA data
subjects regarding personal data, including without limitation, those set forth
in Chapter III of the GDPR. The party that receives the data request is
responsible for responding to the request. Project Creators and Earth Sparks shall
reasonably cooperate and assist each other with these requests, to the extent
that is legally permissible.
iv. Comply with the CCPA as a Business. As a Project Creator, you will independently fulfill all duties required of “businesses” under the California Consumer Privacy Act (“CCPA”), including its implementing regulations. As a “business” under the CCPA, you will, without limitation: (1) provide notices to consumers as required by the CCPA, including providing a privacy policy and a notice of financial incentives, as applicable; (2) respond and honor access and deletion requests of consumers; (3) comply with all CCPA requirements related to the “sale” of personal information, as that term is defined in the statute; (4) implement reasonable security as required by the CCPA; (5) maintain records as required by the CCPA, including records related to your receipt and responses to consumer access and deletion requests; and (6) enter into appropriate contracts with vendors where required by the statute. For clarity, the party that receives a consumer request related to the CCPA is responsible for responding to the request. Project Creators and Earth Sparks shall reasonably cooperate and assist each other with these requests, to the extent that is legally permissible.
h. The dreaded taxes . You are responsible for paying any additional fees or taxes associated with your use of Earth Sparks, including but not limited to any taxes associated with receiving any Member Rewards.
i. Marketplace Fees. Project Creators are charged a Marketplace Fee when a Project is successfully backed by Members of the Earth Sparks community. The Marketplace Fees are effective on the date that the Marketplace Fees are posted, and may be updated from time to time. Marketplace Fees will be charged at the then-current rate. In addition, Project Creators may be charged transaction, transfer, delivery, or other fees by the payment processor each time funds are distributed to the Project Creator. The Marketplace Fees and transfer fees/bank delivery fees are effective on the date that they are posted and will be announced on the Creator Hub page.
j. Payment of Successful Pledges. Project Creators are not guaranteed to receive Pledges made to a Project, even after the Project has ended and the fundraising goal has been reached. There may be a delay between the end of a Project and remittance of Pledges by the Payment Service Provider (“PSP”) to a Project Creator for a number of reasons including, but not limited to, refunds, chargeback disputes, fraud, Terms or other policy violations, or any other situation. Earth Sparks’ PSP will subtract fees, including Marketplace Fees , before transmitting the proceeds of a Project.
k. Refunds. You can refund a Member’s Successful Pledge at any time. If you do, you have no further obligation to that Member, and no agreement exists between you two.
Project Creators are responsible for
ensuring the quality of goods and services they offer on Earth Sparks or in the
marketplace. Project Creators are also responsible for developing a returns and
refund policy for any purchases made through the marketplace. Earth Sparks is
not responsible for any purchases, returns, or refunds for any goods or
services that are offered or sold by a Project Creator in the marketplace.
5.
Backing a Project
a. Voluntary Pledges. All Pledges are made voluntarily and at the sole discretion and risk of the Member.
b. Earth Sparks Does Not Guarantee that Projects Will Succeed or that Purchases Will Be Delivered or Deemed Satisfactory . By pledging to a Project, Members are supporting an idea, project, or cause they care about and want to help make happen. Like anyone getting in on an early-stage project, Members accept the risk that the Project may experience changes, delays, and unforeseen challenges, or that a Project, and its Rewards, might not come to fruition. Earth Sparks does not guarantee or represent that Successful Pledges will be used as promised, that a Project Creator will deliver Rewards, or that the Project will achieve its goals. Earth Sparks also does not endorse, guarantee, make representations, or provide warranties regarding the quality, safety, morality or legality of any Project, or the truth or accuracy of any Content posted on the Services. The date to deliver the product in a Project is an estimate by the Project Creator (not Earth Sparks), and there is no guarantee that the Project Creator will fulfill and deliver the product by that date. No transfer of title to tangible personal property occurs through Earth Sparks.
c. Payment. Members must provide payment information when making a Pledge to a Project. However, Members will not be charged until the Project reaches its goals. If the Project does not reach its goals, no funds will be collected and no money will change hands. If a Project does reach its goals, then a Payment Service Provider (“PSP”) will collect the exact amount that you Pledged on the Project. At no time does Earth Sparks collect or hold any money from any Member.
d. Refunds. Earth Sparks does not hold any funds associated with a Project at any time and cannot guarantee the completion of a Project. Members agree that Earth Sparks is not responsible for any refunds or the return of any fees associated with any Successful Pledge to a Project because Earth Sparks has no control over the completion of a Project; that responsibility lies exclusively with the Project Creator.
e. The dreaded taxes . Members bear the sole responsibility for determining how to treat their Pledges and receipt of any Rewards for tax purposes. Earth Sparks does not offer any advice or take any responsibility for how Members treat their Pledges or for any financial consequences arising out of such treatment.
6.
Earth Sparks’
Role
b. There may be times We need to remove bad content . Earth Sparks may remove User Content that violates the Terms at its sole discretion. Removing User Content or terminating an account is not an action We take lightly, and We may take a while to investigate and determine if User Content or an account should be removed. It is at Earth Sparks’ sole discretion whether to discuss the reasons regarding the removal of User Content including the termination of any Project.
c. We do not guarantee Project performance or offer Refunds for Projects . Project Creators bear sole responsibility for the performance, quality, completion, and delivery of a Project. Earth Sparks is not liable for any damages or losses related to Your use of the Ecosystem. Earth Sparks does not offer any refunds associated with a Project.
d. We do not provide tax or legal advice to Members . Members bear sole responsibility for determining how the applicable laws apply to running a Project that has been approved for launch by Earth Sparks, Pledging to a Project, or utilizing any of the Services.
e. We do not become involved in legal disputes between Members . Unfortunately, disputes may arise between Members and Project Creators. Earth Sparks bears no liability, responsibility, or any other form of involvement with those disputes.
f. Project Creators are responsible for their Projects, even if Project Creators engage Our help. Project Creators agree that Earth Sparks is not liable for their Projects or any goods or services offered or sold by Project Creators through the Ecosystem or marketplace. Even where We help with your Project, Project Creators bear sole responsibility for the Project and must comply with all obligations in the Terms as the only responsible party for the Project.
g. Returns on Other Goods and Services. We fundamentally believe you will be happy with the goods and services you purchase from Earth Sparks. That’s because we are thoughtful in what we provide in order to meet your everyday needs. We understand however, that sometimes a purchased item may not be what you expected it to be. In that unlikely event, there are a few important things to remember when purchasing either physical or digital goods or services from Earth Sparks:
i. Only items that have been purchased directly from
Earth Sparks can be returned to Earth Sparks. Any products purchased through
the marketplace must be returned in accordance with the Project Creator’s
respective returns and refund policy.
ii. You have seven calendar days to return an item
from the date you received it. Digital items that have been purchased and used
in any capacity, even minimal use, may be ineligible for return. Once we
received your item, a refund is initiated immediately. It may take a few days
for the refund to be credited to the original payment method.
iii. There may be times a refund takes longer to
credit to your original payment method. In those circumstances, please contact
the card-issuing bank with questions about when the credit will be posted to
your account.
h. No Liability. When you use the Services, you release Earth Sparks from claims, damages, and demands of every kind — known or unknown, suspected or unsuspected, disclosed or undisclosed — arising out of or in any way related to such disputes and the Ecosystem. All content you access, Pledge, or offer through a Project, through the Ecosystem is at your own risk. You’re solely responsible for any resulting damage or loss to any party.
7.
Our
Intellectual Property
We are the owner or the licensee of all intellectual property rights in this Ecosystem, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
Earth Sparks may contain links to third-party websites. When you access third-party websites, you do so at your own risk. We don’t control or endorse those third-party websites. In addition, if you access third-party websites through the Ecosystem, you will be subject to the terms of use and privacy policies for those websites. Earth Sparks cautions you to familiarize yourself with the terms of use and privacy policies of those third-party Ecosystems before undertaking any such access.
You must not print off copies or download any extracts from any part of the Ecosystem unless expressly authorized by us to do so.
If you print off, copy or download any part of our Ecosystem in breach of these terms of use, your right to use our Ecosystem will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. We reserve the right, in our sole discretion, to delete or disable User Content that has been alleged to be infringing, as well as to terminate User accounts associated with infringers.
We are not responsible for content posted by third parties on our Ecosystem (including content posted by investees and investors), including the content of pitches, pitch videos, images and content in the discussions. If you believe that any content on our Ecosystem infringes your intellectual property rights, including under United States law such as the Digital Millennium Copyright Act (“DMCA”) or Lanham Act, please send a letter to the address below for the attention of the Earth Sparks’ Counsel with the following information: (i) evidence of your ownership; (ii) the exact location of the infringing content and any copies. We will review your notice and take appropriate action, including removing such content where appropriate. The address for notices under this provision is:
Earth Sparks, Inc,
c/o Crowell & Moring LLP,
3 Embarcadero Ctr., 26th Floor,
San Francisco, CA 94402
United States of America
8.
Your
Intellectual Property
Your User Content remains your property. When you submit User Content to the Ecosystem or via the Services, you agree to the following terms:
a. You allow us to use your Content . You grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, and transferable right to use, exercise, commercialize, and exploit the copyright, publicity, trademark, and database rights with respect to your User Content.
b. We can remove User Content . You grant us the right to remove any User Content if any of the content is in violation with these Terms of Services or any applicable law.
c. You have all legal rights to your Content . You represent and warrant that: (1) you have all licenses, rights, consents, and permissions necessary to grant the rights set forth in these Terms to Earth Sparks with respect to your Content; (2) your Content does not and will not infringe any third party's intellectual property rights, proprietary rights, privacy rights, confidentiality, rights of publicity or otherwise violate these Terms or applicable law; and (3) Earth Sparks does not need to obtain any licenses, rights, consents, or permissions from, or make any payments to, any third party for any use of your Content, or have any liability to anyone or any other party as a result of Our use or exploitation of your Content.
9.
Earth Sparks’
Rights
Concerning Accounts; Termination
We reserve the right to monitor, terminate, suspend, or delete any User Account at any time in Our sole discretion. We have no obligation to comment on any reasons for account monitoring, termination, suspension, or deletion.
We have no liability to you or third parties for any use of the Services associated with your account or Project. Upon suspension or termination of your account, you must cease all use of the Services and Content. Your representations and warranties shall survive termination.
10.
Payment Services
Earth Sparks partners with third-parties for payment processing. When you make a Pledge or purchase a good or service through Earth Sparks or the marketplace, you agree to be bound by the payment processor’s terms of service.
11.
System Outages and Maintenance
The Ecosystem or Services may be unavailable for scheduled maintenance and other reasons, including unplanned outages and other malfunctions. We are not responsible if the Ecosystem or Services are unavailable, or if you lose any data, information, or Content for any reason.
12.
User Comments, Feedback and other
Submissions.
Earth Sparks is pleased to hear from users and welcomes your comments regarding our products and services. Earth Sparks’ company policy does not allow us to accept or to consider creative ideas, suggestions, proposals, plans, or other materials other than those we have specifically requested in the Creator Hub. We hope that you will understand that the intent of this policy is to avoid the possibility of future misunderstandings when projects developed by Earth Sparks’ employees, partners and agents might seem to be similar to creative works submitted by users. Accordingly, while we value your feedback, we must ask that you do not send creative ideas, suggestions, proposals, plans, or other materials for our business – unless we have made a specific request in the Creator Hub.
If you send creative ideas, suggestions, customer reviews, photographs, proposals, plans, or other materials, whether via the Ecosystem, by email, by postal mail, or otherwise (collectively known as "Comments"), you agree that Earth Sparks may, at any time, without restriction, edit, copy, publish, distribute, translate, create a derivative of and otherwise use in any medium any Comments that you forward to Earth Sparks. Earth Sparks is and shall be under no obligation: (1) to maintain any Comments in confidence; (2) to pay compensation for any Comments; or (3) to respond to any Comments.
Specific requests for Comments in the Creator Hub will include references to how we will process and manage your Comments and how we will compensate you for any original Comments.
In all cases you agree that your Comments will not violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right. You further agree that your Comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Site. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead Earth Sparks. or third parties as to the origin of any Comments. You are solely responsible for any Comments you make and their accuracy. Earth Sparks takes no responsibility and assumes no liability for any Comments posted by you or any third party.
13.
Indemnity
You agree to defend, indemnify and hold harmless Earth Sparks, Our subsidiaries and affiliated companies, and Our officers, directors, employees, partners, contractors, representatives, agents, and third party providers from and against any and all claims, causes of action, damages, obligations, losses, liabilities, costs or debt, and expenses (including reasonable attorneys' fees and costs) and all amounts paid in settlement arising from or relating to, breach of these Terms or violation of any applicable laws. We reserve the right, in Our sole discretion and at Our own expense, to assume the exclusive defense and control of any matter for which you have agreed to indemnify us and you agree to assist and cooperate with us as reasonably required in the defense or settlement of any such matters.
14.
No Warranty
EARTH SPARKS HAS NO FIDUCIARY DUTY TO ANY USER. THE SERVICES, EARTH SPARKS CONTENT, USER CONTENT, AND ANY OTHER MATERIALS MADE AVAILABLE OR THROUGH THE USE OF THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR COURSE OF PERFORMANCE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EARTH SPARKS AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON- INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. EARTH SPARKS AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS AND AGENTS DO NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVER(S) ON WHICH THE SERVICES ARE HOSTED, OR ANY SERVICES AVAILABLE ON ANY THIRD PARTY PLATFORM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO OPINION, ADVICE OR STATEMENT OF EARTH SPARKS OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS OR VISITORS, WHETHER MADE THROUGH THE USE OF THE SERVICES, OR ON THIRD-PARTY PLATFORMS OR OTHERWISE, SHALL CREATE ANY WARRANTY. YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY SERVICES PROVIDED ON ANY THIRD-PARTY PLATFORM, ARE ENTIRELY AT YOUR OWN RISK.
15.
Disclaimer of Liability
a. Use the Services at your own risk . We make no representations about the quality, safety, morality or legality of any Project or Reward or the truth or accuracy of User Content posted on the Services. We do not guarantee the fulfillment or the performance of any Rewards, or that Successful Pledges will be used as described in the Project. We do not control or endorse User Content posted on the Ecosystem or in any Services and, as a result, do not guarantee in any manner the reliability, validity, accuracy or truthfulness of such User Content. Earth Sparks is not liable for any damages or losses related to your use of the Services. We do not become involved in disputes between Members, or between Members and any third party relating to the use of the Services.
b. You release us from all claims . When you use the Services, you release Earth Sparks from claims, damages, and demands of every kind - known and unknown, suspected or unsuspected, disclosed or undisclosed - arising out of or related to the Services. All Content that you access or use through the Services is entirely at your own risk and you solely are responsible for any resulting damage or loss to any party.
c. 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 SERVICES AND USER CONTENT, AND ANY CONTACT YOU HAVE WITH OTHER MEMBERS OR THIRD PARTIES, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU. NEITHER EARTH SPARKS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE (WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT EARTH SPARKS 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; (F) ANY COMMUNICATIONS OR OTHER INTERACTIONS WITH OTHER MEMBERS OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES; OR (G) YOUR PROJECTS OR PLEDGES.
IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF EARTH SPARKS AND ITS AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING FROM OR RELATING TO THE TERMS, SERVICES, OR USER CONTENT, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO EARTH SPARKS BY YOU HEREUNDER, OR ONE HUNDRED US DOLLARS IF NO SUCH PAYMENTS HAVE BEEN MADE.
16.
Export Compliance
You agree to comply with all applicable import, re-import, export, and re-export control laws and regulations in Your jurisdiction.
You agree to indemnify Earth Sparks for any penalties, fines, attorneys’ fees and other amounts that may be incurred by Earth Sparks that arise out of or are related to your failure to comply with this Section.
17.
Jurisdiction and applicable law to United States Members
These Terms of Service (and any further rules, policies, or guidelines incorporated by reference) shall be governed by and construed in accordance with the laws of the State of Delaware and the United States, without giving effect to any principles of conflicts of law, and without application of the Uniform Computer Information Transaction Act or the United Nations Convention of Controls for International Sale of Goods. You agree that the Company and its Services are deemed a passive website that does not give rise to personal jurisdiction over Earth Sparks or its parents, subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers or shareholders, either specific or general, in any jurisdiction other than the State of Delaware. You agree that any action at law or in equity arising out of or relating to these terms, or your use or non-use of the Services, shall be filed only in the state or federal courts located in the State of Delaware and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. You hereby irrevocably waive any right you may have to trial by jury in any dispute, action, or proceeding.
18.
Full Agreement Between You and Us
These Terms are the entire agreement between You and Earth Sparks with respect to the Services. They supersede all other communications and proposals (whether oral, written, or electronic) between you and Earth Sparks with respect to the Services and govern our relationship. If any provision of these Terms are deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Earth Sparks’ failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
19.
Miscellaneous
We may modify or discontinue the Services at any time, in our sole discretion. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms. No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Earth Sparks’ failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Services must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
20.
Definitions,
they’re important for clarity.
a. "Content" refers to all software, technology, designs, materials, information, communications, text, graphics, links, electronic art, animations, illustrations, artwork, audio clips, video clips, photos, images, reviews, ideas, and other data or copyrightable materials or Content, including the selection and arrangements thereof offered through the Services;
b. "DMCA" refers to the Digital Millennium Copyright Act of 1998, including any amendments;
c. " Earth Sparks, " "We, " "Our, " or "Us" refers to Earth Sparks, a Delaware corporation, together with its parents, subsidiaries, affiliates, agents, representatives, consultants, employees, officers, and directors;
d. " Earth Sparks Content" refers to Content provided by Earth Sparks to Members in connection with the Services, including, without limitation, the software, the products and the Ecosystem;
e. "Ecosystem" refers to the Earth Sparks website and any other website owned and operated by Earth Sparks;
f. "Infringement" refers to the unauthorized or not permitted use of copyrighted material or other intellectual property rights;
g. "Marks" refers to the trademarks, service marks, and logos used and displayed throughout the Services or in any Earth Sparks Content;
h. "Members" refers to anyone who joins the Earth Sparks Ecosystem;
i. “ Member Rewards " refers to bonus membership rewards which may be given to Members whenever they interact with or introduce new members into the Ecosystem as defined in section 2(i);
j. “ Personally Identifiable Information ” or "PII" refers to any data that could potentially identify a specific individual. Any information that can be used to distinguish one person from another and can be used for deanonymizing previously anonymous data can be considered PII.;
k. "Pledge(s)" refers to funds Members commit to paying to Projects if the Project is successful and a Successful Pledge refers to when payment has been made after a Project reaches its designated target milestone;
l. "Privacy Policy" refers to Earth Sparks’ Privacy Policy, and incorporated herein by reference;
m. "Project" is the Project Creator’s fundraising campaign through the Services;
n. “ Project Creator ” is any individual who use the Ecosystem or Services to either introduce an idea, market the idea, and/or raise funds for the idea through the Ecosystem and Services;
o. “Rewards” refers to advance purchases made from Project Creators which are either physical or digital products or services;
p. “Services” refers to Ecosystem, mobile applications or connected applications, all Content, offerings, and other services offered through the Ecosystem.
q. "Terms" or " Terms of Use " refers to the Terms of Use, Additional Policies, Earth Sparks’ Privacy Policy, all applicable laws, and all conditions or policies referenced here;
r. "User, " "You, " or " Your" refers to Project Creators, Members or any other visitor to the Ecosystem or Members of the Services, either individually or collectively;
s. "User Content" refers to Content uploaded, transmitted or posted to the Services by a User, including User Content in a Project.