Terms and Conditions

Last updated: 16 May 2018

These Terms and Conditions of Use set out the terms and conditions on which you agree to use CrowdSpark’s Services. We have incorporated by reference all linked information. Please read these Terms and Conditions of Use and all linked information carefully.

1. Agreement

1.1. Access or use of any of the Websites, Apps or any other Services are subject to the terms of a legal agreement between you and CrowdSpark. Your legal agreement with CrowdSpark is made up of (a) these Terms and Conditions of Use, (b) the CrowdSpark Privacy Policy  (collectively the “Terms”), and (c) any separately signed agreement between you and CrowdSpark (“License Agreement”).

1.2. The Terms form a legally binding agreement between you and CrowdSpark in relation to your use of the Services. It is important that you take the time to read them carefully. If you do not agree with the Terms do not use the Services.

1.3. The Terms apply to all Users of the Services. These Terms are not intended to alter the terms or conditions of any License Agreement you may have with CrowdSpark, and to the extent of any conflict between the Terms and any License Agreement, the content of your License Agreement will prevail.

2. Acceptance

2.1. YOU MAY NOT USE THE SERVICES IF YOU DO NOT ACCEPT THE TERMS BUT IF YOU DO USE THE SERVICES YOU WILL BE DEEMED TO HAVE AGREED TO AND ACCEPTED THE TERMS IMMEDIATELY.

2.2 Access to the Services is provided exclusively on the basis that you agree to be bound by these Terms. Any User Content you submit through the Websites, the Apps, by email, or any other method shall be submitted in accordance with these Terms.

2.3. By using the Services you represent and warrant that you are over the age of majority in your jurisdiction of residence and are lawfully able to form a binding contract with CrowdSpark. If you are using the Services on behalf of any entity, you further represent and warrant that you are authorized to accept the Terms on such entity’s behalf, and that such entity agrees to indemnify CrowdSpark and its Related Entities, directors, officers, employees and agents, from any claims, damages, costs, liabilities and expenses (including but not limited to legal fees) arising from or related to your and the entity’s use of the Services or violations of the Terms (whether directly or indirectly).

3. Change to Terms

3.1. Except where prohibited by law (which may include Quebec), CrowdSpark reserves the right to change, modify, add or remove any portion of the Terms, or modify any policy or guideline on the Services, at any time and in its sole discretion. The modified version of the Terms (the “Modified Terms”) will be posted on the Websites, and emailed to all Registered Users at their nominated email address, and we will revise the ‘last updated’ date at the top of the Terms.

3.2. Changes to the Terms will be effective immediately upon posting on the Websites. Your continued use of the Services after the date the Modified Terms are posted on the Websites will constitute your acceptance of the Modified Terms. If you do not agree to the Modified Terms please discontinue your use of the Services. We encourage you to review the Terms whenever you use the Services.

3.3 CrowdSpark reserves the following rights:

  1. CrowdSpark can make changes to the Services without notice or liability.
  2. CrowdSpark has the right to determine, in its sole discretion, who is eligible to use the Services. CrowdSpark may deactivate an Account or decline to offer its Services to anyone that does not satisfy the eligibility criteria.
  3. CrowdSpark may change the eligibility criteria at any time. If there is any criteria prohibited by law where you live, then we revoke your right to use the Services in that jurisdiction.
  4. CrowdSpark is not liable for any damages as a result of any of these actions, and it is our policy not to comment on the reasons for any such action.

GENERAL CONDITIONS OF USE

4. General Conditions of Use

4.1. CrowdSpark grants you permission to access and use the Services, subject to the Terms and you agree that your failure to adhere to any of these conditions shall constitute a breach of the Terms.

4.2. The Services may contain hyperlinks to other websites that are not owned or controlled by CrowdSpark. Unless otherwise stated we (a) do not control, approve, endorse or sponsor any such websites or their content; (b) do not provide any warranty or take any responsibility for any aspect of those websites or their content or accuracy; and (c) are not responsible for the availability of any such external websites or resources. We encourage you to review the terms and conditions of any third parties before using its services.

4.3. You acknowledge and agree that CrowdSpark is not liable for any loss or damage which may be incurred by you as a result of the availability of those external websites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such websites or resources.

4.4. You may not use CrowSpark’s Services:

  1. to contravene any applicable law or regulation, including, without limitation, those relating to the internet, data, email, privacy, and the transmission of technical data exported from the country in which you reside or access the Service;
  2. to download, copy, re-transmit or distribute any part or parts of the Services, including but not limited to the CrowdSpark Content in any medium, without, or in violation of, a written license or agreement with CrowdSpark or the respective licensors of the CrowdSpark Content;
  3. for accessing the Services through any technology or means other than such means as CrowdSpark may explicitly designate for this purpose;
  4. for any data mining, robots or similar data gathering or extraction methods whether in relation to Users, User Content or otherwise;
  5. to interfere with or disrupt the Services in any way, including (but not limited to) through the use of viruses, Trojan Horses or other harmful code or for using or launching any automated system that accesses the Services in a manner that sends more request messages to the CrowdSpark servers in a given period of time than a human can reasonably produce in the same period by using a publicly available, standard (i.e. not modified) web browser;
  6. to alter or modify any part of the Services or CrowdSpark Content;
  7. to register, subscribe, unsubscribe or attempt to register, subscribe or unsubscribe any party for any CrowdSpark product or service if you are not expressly authorized by such party to do so;
  8. to reverse engineer, alter or modify any part of the Services or the CrowdSpark Content;
  9. for the solicitation of business or in connection with any commercial enterprise;
  10. to circumvent, disable or otherwise interfere with security-related features of the Services or any system resources, services or networks connected to or accessible through the Services, or features that (i) prevent or restrict use or copying of CrowdSpark Content or (ii) enforce limitations on use of the Services or the content accessible via the Services;
  11. generally other than for their intended purposes; or
  12. to encourage, assist, or procure another person to do any of the foregoing.

4.5 CrowdSpark grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. CrowdSpark reserves the right to revoke these exceptions either generally or in specific cases.

5. Data Protection Consent

5.1. In order to access some features of the Websites or other elements of the Services, you may have to create an Account. In relation to your Account you hereby agree to: (a) provide accurate, current and complete information as prompted by any registration forms on the Services (“Registration Data”); (b) maintain and promptly update your Registration Data, and any other information you provide to CrowdSpark, in order to keep it accurate, current and complete; (c) maintain the security of your password and identification; (d) notify CrowdSpark immediately of any breach of security or unauthorized use of your Account or Registration Data that you become aware of; (e) accept sole responsibility (to CrowdSpark, and to others) for all activity that occurs under your Account; and (f) accept all risks of unauthorized access to your Registration Data and Account or any other information you provide to CrowdSpark.

5.2. If you wish to delete your Account, please send a request to delete email to newsroom@crowdspark.com and we will permanently delete your Account, all User information, and any User Content Uploaded as soon as possible. Upon deletion, you will receive a confirmation email and your information and User Content will no longer be accessible, distributed, or licensed.  Third parties who have received your User Content prior to the request to delete will be notified of this request but CrowdSpark does not guarantee and is not liable for such party’s compliance with your request. Regardless of the status of your Account, it is your responsibility to ensure that CrowdSpark has your current contact information for the purposes of any notice and payment obligations CrowdSpark may have with you.

SPECIFIC CONDITIONS OF USE:

THE FOLLOWING SECTIONS 6 – 9 APPLY TO
USERS SUBMITTING CONTENT TO BE DISTRIBUTED

6. Submission of Content

6.1. Registered Users may upload or submit User Content through the Websites, the Apps, by email, or any other method. If CrowdSpark believes, at its sole discretion, the User Content may be capable of being licensed to distributors, resellers, end users, and other relevant third parties (“Licensees”) we will commence a process of validation. If the User Content cannot be validated, it will not be capable of being licensed to Licensees.

6.2. Without limiting the generality of clause 20.2, CrowdSpark makes no warranties that submitted User Content will be validated.

6.3. Without limiting the generality of clause 20.2, CrowdSpark makes no warranties that User Content that has been validated will be licensed, or otherwise distributed, to Licensees.

6.4. Copyright in the User Content you upload to the Services will remain with you, subject to any license granted in accordance with these Terms.

6.5. You understand and agree that you are solely responsible for your own User Content and the consequences of Uploading or submitting it. CrowdSpark does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and CrowdSpark expressly disclaims any and all liability in connection with User Content.

6.6. By submitting User Content you represent and warrant that:

  1. you have all right, title and interest in the User Content necessary to grant the rights that you grant under these Terms including you have all necessary licenses, rights, consents, permissions and any release related to any rights of privacy or publicity that are required to enable CrowdSpark to use your User Content in the manner contemplated by these Terms;
  2. you have not entered and will not enter into any agreement in respect of the User Content which would conflict with the rights granted to CrowdSpark under these Terms;
  3. you are, and will remain during the term of these Terms, the authorized representative of the sole owner of the whole copyright and other proprietary rights in the User Content you submit;
  4.  there are no restrictions on licensing and/or use of the User Content for any purposes;
  5.  you will notify CrowdSpark in writing upon delivery of the relevant User Content of any specific licensing conditions relating to any User Content you submit;
  6. the User Content is accurate, genuine, does not depict any event staged for the purpose of creating User Content, and has not been doctored in any way;
  7. the User Content does not infringe upon or violate any statutory copyright or upon any common law right, civil law right, copyright, patent, trademark, trade secret, proprietary right, or any other similar right of any third party (including rights of privacy or rights of publicity) or any other intellectual or proprietary right of a third party;
  8. the User Content does not violate any law, statute, ordinance, or regulation, including by the manner in which it was obtained or created;
  9. the User Content does not contain any material which it is unlawful for you to possess in the country in which you are resident, or which it would be unlawful for CrowdSpark to use or possess in connection with the provision of the Services;
  10. the User Content is not libelous (including trade libelous), defamatory, pornographic, or obscene;
  11. the User content will not contain any viruses, Trojan Horses, worms, time-bombs, or other similar harmful or deleterious programming routines;
  12. all metadata provided with the User Content is accurate and does not falsely represent copyright ownership;
  13. the User Content is not subject to any exclusive contract, agreement or license; and
  14. CrowdSpark’s exercise of its rights hereunder will not infringe on or violate any copyright, patent, trademark, trade secret, privacy right, publicity right or other intellectual property or proprietary right of any third party.

6.7. You will indemnify and hold harmless CrowdSpark and Released Persons against any losses (including reasonable legal fees) suffered by any of the indemnified parties (as set out in clause 19.1) arising from or in relation to any breach by you of the warranties in the above clause 6.6.

6.8. On becoming aware of any potential violation of these Terms, CrowdSpark reserves the right to decide whether the User Content complies with the requirements set out in these Terms and may, without prior notice and at its sole discretion, remove such User Content from the Services and/or deactivate a Registered User’s Account.

6.9. You understand and acknowledge that in using the Services, you may be exposed to User Content that is factually inaccurate, offensive, indecent, or otherwise objectionable to you. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against CrowdSpark with respect to any such User Content.

7. The Rights you License

7.1. As and when you effectively Upload or submit User Content to CrowdSpark (the “Effective Date”), you grant to CrowdSpark an irrevocable perpetual license to access, use, display, promote, distribute, edit and reproduce that User Content (without right of approval or claim to compensation or benefit other than as expressly provided in these Terms) and to promote, redistribute and license part or all of the User Content to Licensees (“Content License”).  You acknowledge that Licensees, including without limitation our clients using our technology, will have their own terms and conditions and privacy policies, separate from these Terms, that are not guaranteed by CrowdSpark.  We recommend you review the terms and conditions of any relevant Licensee.

7.2. The Content License granted by you in clause 7.1 constitutes an exclusive, irrevocable, worldwide, transferable license (with rights to sublicense) for a period of 90 days from the Effective Date (“Exclusivity Period”) and thereafter, a non-exclusive, irrevocable, worldwide transferable license (with rights to sublicense).

7.3. By uploading or submitting User Content to CrowdSpark you agree that from the Effective Date until the end of the Exclusivity Period, you will not grant or attempt to grant any rights in the User Content to any third parties.

7.4. You agree that you will not grant any rights to third parties that would conflict with the rights you have already granted CrowdSpark under this clause 7.

8. Payment

8.1. In the event that CrowdSpark is able to license your User Content to a Licensee, we shall share with you the payment received by us from the Licensee on a 50:50 basis (net of any taxes, fees, conversion charges, or refunds) and according to clause 8.3 (“Royalties”).

8.2.The License granted by you in clause 7.1 gives CrowdSpark the right to use the User Content for promotional purposes including, but not limited to, use on the Services, corporate materials, advertisements for CrowdSpark or as part of promotional licensing agreements (“Promotional Purposes”). User Content that is used for Promotional Purposes may help to maximize sales of that User Content. However you accept and acknowledge that CrowdSpark receives no payments for distribution of this User Content and therefore no Royalties are payable by CrowdSpark to you in relation to the use of the User Content for Promotional Purposes.

8.3. The minimum payment of Royalties payable by CrowdSpark to Registered Users, inclusive of all taxes, is $15 USD.

8.4. CrowdSpark will endeavour to pay Registered Users within ninety (90) days of receiving payment from a Licensee for use of the Registered User’s User Content.

8.5. Registered Users will receive an email from no-reply@crowdspark.com when Royalties are available. All payments to Registered Users will be made through www.pay.crowdspark.com using Paypal or wire transfer. You are encouraged to set up an account with Paypal to facilitate the payment.

8.6. Without limiting the generality of clause 20.2, CrowdSpark makes no warranty to any Registered User that a Licensee will make payments due under any CrowdSpark license agreement. Where a Licensee fails to make payments, CrowdSpark has no obligation to make payment to the Registered User.

8.7. You acknowledge and accept that CrowdSpark is not responsible for any costs incurred by you, including without limitation in the course of obtaining any User Content.

9. Newscalls

9.1. From time to time, CrowdSpark may send out news calls to Registered Users through the Services. A “Newscall”  alerts Users to relevant events happening in nearby geographical locations with the intention of collecting User Content from such news events.  Newscalls are sent via email, the App using geolocated or group based push notifications, and/or advertised on the Services.

9.2. The User hereby:

  1. acknowledges and agrees that by sending such Newscalls, CrowdSpark has not, expressly or impliedly, compelled, engaged, employed, contracted or created any other form of association between CrowdSpark and any User;
  2. acknowledges and agrees that the User may respond to such Newscalls entirely at their own cost and risk;
  3. in addition to the indemnity described above in clause 6.7, releases and indemnifies CrowdSpark, and each of the Released Persons, from and against all claims, proceedings, expenses, costs, damages, losses and other liabilities in respect of death of, or personal injury, disease or illness (including mental injury) to, any person, third party property damage, arising directly or indirectly from, under or otherwise in relation to, any Newscall; and
  4. acknowledges and agrees Newscalls can be turned off by turning off the geolocation and push notifications on a User’s device settings.

SPECIFIC CONDITIONS OF USE:

THE FOLLOWING SECTION 10  APPLIES TO USERS
OF CLIENTS LICENSING CROWDSPARK SERVICES

10. Client Users

10.1. The use of the Services by third party Licensees, distributors, and resellers are primarily governed by a separately signed License Agreement.  In the event of an inconsistency or conflict between these Terms and a License Agreement, the License Agreement will prevail.

10.2. Notwithstanding clause 10.1, by using the Services you represent and warrant that:

  1. You are an authorized representative of a Licensee and are permitted to become a Registered User to access and operate the Services under a License Agreement;
  2. You will only access and use the Services to the extent authorized by the relevant Licensee;
  3. You will only access and use the Services under these Terms and those of the License Agreement for the purposes contemplated therein;

10.3. You understand and acknowledge that your access and activity within the Services will be monitored for security purposes and be traceable to your Account.

10.4. You understand and acknowledge that in using the Services you may be exposed to User Content that is factually inaccurate, offensive, indecent, or otherwise objectionable to you. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against CrowdSpark and Released Persons with respect to any such User Content.

10.5. On becoming aware of any potential violation of these Terms, CrowdSpark reserves the right to, without prior notice and at its sole discretion, deactivate a Registered User’s Account.

SPECIFIC CONDITIONS OF USE:

THE FOLLOWING SECTIONS 11 – 14   APPLY TO
USERS SUBMITTING TO CREATIVE PROJECTS

11. Creative Agreement

11.1. Users Uploading or submitting Entries to CrowdSpark for licensing, assignment, or sale to third parties are subject to these Terms and any additional rules that apply to a specific Project.  Any additional rule applicable will be attached as a separate document to the Project Brief and will form part of the binding contract between you and CrowdSpark. Any reference to these Terms with respect to any Project shall be deemed to include any additional rules that apply to such Project.  Every Entry Uploaded to the Website or otherwise submitted by you shall be subject to these Terms.

11.2. CrowdSpark reserves the right, at its sole and absolute discretion, to suspend or cancel any Project.

12. Submission of Entries

12.1. You are entitled to submit your Entries in respect of active Project Briefs that may appear on the Website or otherwise made available from time to time. Each Entry must be made in accordance with any scope and specifications detailed in the relevant Project Brief and must be successfully submitted before the date and time at which the Project Brief closes for submission in order for your Entry to be eligible for participation in the relevant Project.  By submitting an Entry, you agree to making your Entry available for potential licensing, assignment, transfer, disposal, and use on the Services.

12.2. A single Entry may not be submitted by more than one Registered User. If an Entry was developed by more than one person, only the User who submitted the Entry may be eligible to consideration in the event that the Entry is selected as the Winning Entry.

12.3. You understand and agree that you are solely responsible for your own Entry and the consequences of submitting it. CrowdSpark does not endorse any Entry, opinion, recommendation, or advice expressed therein, and CrowdSpark expressly disclaims any and all liability in connection with Entries.

12.4. By submitting an Entry you represent and warrant that:

  1. you have all necessary licenses, rights, consents, and permissions required to enable CrowdSpark to publish your Entry on the Services and use your Entry in the manner contemplated by these Terms;
  2. you are the sole owner of all copyright, intellectual property rights, Moral Rights, and all other rights in and to your Entry;
  3. by submitting your Entry, making your Entry available for potential licensing, assignment, transfer or disposal otherwise, or by entering into or exercising or granting any rights or performing any obligations under these Terms, you are not acting in breach of any applicable law, contract or any other obligations of whatsoever nature to any third party;
  4. you do not currently and will not in future use, exploit, submit, authorize or cause any other person to use for any purposes, material which is the same as or substantially similar to your Entry;
  5. all aspects of your Entry are original and produced solely by you and no part of the Entry has been previously and publicly displayed, exhibited or otherwise used by any person, company or other entity in any country in the world;
  6. the submission of the Entry, use on the Services, and subsequent potential licensing, assignment, transfer or disposal otherwise of your Entry does not infringe upon any statutory copyright or upon any common law right, civil law right, proprietary right, or any other similar right of any third party (including rights of privacy or rights of publicity);
  7. the Entry does not violate any law, including the manner by which it was obtained or created;
  8. the Entry does not contain any material which it is unlawful for you to possess in the country in which you are resident, or which it would be unlawful for CrowdSpark to use or possess in connection with the provision of the Services;
  9. the Entry is not libelous (including trade libelous), defamatory, pornographic, or obscene;
  10. the Entry is not subject to any exclusive contract, agreement or license; and
  11. You will not use the Services for the solicitation of business or in connection with any commercial enterprise.

12.5. On becoming aware of any potential violation of these Terms, CrowdSpark reserves the right to decide whether the Entry complies with the requirements set out in these Terms and may, without prior notice and at its sole discretion, remove such Entry from the Services and/or deactivate a Registered User’s Account.

12.6. In the event that you are not a natural person, you undertake to (a) ensure that your directors, employees and other representatives comply with the obligations under these Terms as if they were party to them themselves; and (b) provide CrowdSpark on request with satisfactory evidence (to be determined in our absolute discretion) that you are legally and duly constituted and/or registered and that any person acting on your behalf in accepting, and acting in accordance with, these Terms is duly authorized to do so.

12.7. You acknowledge and accept that CrowdSpark is not responsible for any costs incurred in relation to the development, creation or submission of an Entry. Except as otherwise provided, you agree to bear your own costs and expenses incurred in respect of compliance with your obligations under these Terms.

13. The Rights You License

13.1. As and when you effectively Upload or otherwise submit an Entry to CrowdSpark (the “Effective Date”), you grant CrowdSpark a full, worldwide, exclusive license to use all copyright, trademark and Intellectual Property Rights throughout the world in that Entry to access, use, distribute, edit and reproduce that Entry (without right of approval or claim to compensation or benefit other than as expressly provided in these Terms) (“Creative License”) from the Effective Date until the end of the Assessment Period. As and when you submit an Entry, you grant CrowdSpark a full, worldwide, perpetual, license to use that Entry, in whole or part, including the right to incorporate it in other works, on from the Effective Date for marketing and Promotional Purposes.

13.2. You hereby acknowledge and accept that, on and from the Effective Date and for the duration of the Assessment Period, you shall not be entitled to exhibit, use, sell, license, assign, dispose of or otherwise exploit or encumber the Intellectual Property Rights (in whole or in part) in the Entry in any manner whatsoever.

13.3. In consideration of your granting the Creative License to CrowdSpark, we undertake not to sub-license or otherwise compromise the Intellectual Property Rights in the Entry for the duration of the Assessment Period.

13.4. The Creative License granted by you shall terminate upon expiry of the Assessment Period, as notified by CrowdSpark.

13.5. You agree that at CrowdSpark’s request and expense, you shall execute any and all further documents and do all such further acts as may be required in order to protect and enforce against third parties the Creative License granted.

13.6. You agree that during the Assessment Period you will not grant any rights to third parties that would conflict with the rights you have already granted CrowdSpark under this clause 13.

13.7. You hereby fully and irrevocably waive all Moral Rights and all other Intellectual Property Rights in respect of all Entries and uses of Entries by CrowdSpark, our clients or third parties pursuant to these Terms. Notwithstanding the remaining provisions of these Terms, you agree that third parties shall be entitled to enforce the waiver contained in this clause against you. You further agree that no Entry submitted by you shall constitute or otherwise require, either directly or indirectly, any unauthorized breach of any Moral Rights, copyright, trademarks or any other intellectual property rights of any third party anywhere in the world and in the event that any such breach occurs, is threatened or is otherwise anticipated by us, we shall be entitled to immediately suspend any relevant Entry and to remove it from the Services.

14. Winning Entry

14.1.  Should your Entry be selected as the Winning Entry for a Project, CrowdSpark shall send you a further agreement for the assignment or licensing of the related rights.

14.2. You acknowledge that CrowdSpark shall not be required to make any payment to you until such further agreement has been concluded between you and CrowdSpark.  Should such agreement be executed, CrowdSpark undertakes to remit to you an amount equal to the Award attached to the relevant Project Brief (less any applicable taxes under a competent jurisdiction, or other charges required to be deducted by law) as consideration for the assignment or license of rights in the Winning Entry. Payment will be made in accordance with the payment terms set out in the further agreement.

15. Ownership of the site and its content

15.1. Unless otherwise indicated, all of the content other than User Content, displayed on or available through the Services, including, but not limited to, all names, logos, trademarks (whether registered or unregistered), Website design, databases, computer codes, text, graphics, data, photographic images, moving images, sound, illustrations, software, and the selection and arrangement thereof (“CrowdSpark Content”) is owned by CrowdSpark or its licensors and protected by copyright, trademark, database rights and other laws relating to the protection of intellectual property.

16. Copyright infringement

16.1. If you believe that any content on any of the Services infringes upon copyright that you own or control, you may send a notification of copyright infringement by email to copyright@crowdspark.com or by post to:

CrowdSpark

Attn: Copyright Department

216 E 45th Street, Suite 1201

10017 New York, NY

United States of America

16.2. CrowdSpark may, in its sole discretion, (a) remove claimed infringing, or allegedly infringing, material without prior notice, and (b) deactivate, in appropriate circumstances, and at CrowdSpark’s sole discretion, the Accounts of Registered Users who infringe or who we reasonably believe may be infringing, the Intellectual Property Rights of CrowdSpark or any third party.

17. Trademarks, Logos and Content

17.1. The CrowdSpark logo, all product names, page headers, custom graphics, button icons, trademarks, service marks, look and feel and logos appearing on any of the Services are trademarks of CrowdSpark and its suppliers or licensers, and may be subject to copyright. They may not be copied, imitated or used, in whole or in part, without the prior written permission of CrowdSpark or the applicable trademark holder.

17.2. You may not use metatags or any other “hidden text” utilizing “CrowdSpark” or any other name, trademark or product or service name of CrowdSpark without our prior written permission. In addition, the look and feel of the Services, including all page headers, custom graphics, button icons and scripts, are the service marks, trademarks and/or trade dress of CrowdSpark and may be subject to copyright and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners.

17.3. Reference to any third party products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us and we do not verify the accuracy of any representations made by those third parties in relation to their products, service, processes or information. We recommend you review the terms and conditions of any third party before using their products, services, or processes, including without limitation those of our clients using our technology.

18. Links

18.1. You may not use CrowdSpark logos or other proprietary graphics of CrowdSpark to link to the Services without the express written permission of CrowdSpark. Further, you may not frame any CrowdSpark trademark, logo or other proprietary information, including CrowdSpark Content, without CrowdSpark’s express prior written consent.

19. Indemnification

19.1. You hereby agree to indemnify, release and hold harmless CrowdSpark, its Related Entities subsidiaries, affiliates, licensers, officers, directors, employees, agents, representatives, third party information providers and independent contractors against any claims, damages, costs, liabilities and expenses (including but not limited to reasonable legal fees) arising out of or related to any User Content that you post, store or otherwise transmit on or through our Services, your conduct, your use or inability to use the Services, your breach or alleged breach of the Terms or any representation or warranty contained therein, your infringement of any intellectual property right of any person or entity, your violation of any rights of another, or any other liabilities arising out of your use of the Services or any information, materials, products or services available through the Services.

20. Exclusion of Warranties

20.1. Nothing in the Terms shall affect any statutory rights that you are entitled to as a consumer and that you cannot contractually agree to alter or waive.

20.2. EXCEPT WHERE PROHIBITED BY LAW, WHICH MAY INCLUDE QUEBEC, THE SERVICES, AND ALL CROWDSPARK CONTENT AVAILABLE THEREIN, ARE PROVIDED ‘AS IS’ AND CROWDSPARK AND ITS DIRECTORS, EMPLOYEES, CONTENT PROVIDERS, AGENTS AND AFFILIATES EXCLUDE ALL WARRANTIES AND CONDITIONS, EXPRESS, COLLATERAL, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.

20.3. Without limiting the generality of clause 20.2, CrowdSpark does not represent or warrant to you that:

  1. your use of the Services will meet your requirements;
  2. your use of the Services will be uninterrupted, timely, secure or free from error;
  3. the site is free from infection by viruses or anything else that has contaminating or destructive properties; or
  4. that defects in the operation or functionality of any software provided to you as part of the Services will be corrected.

20.4. CrowdSpark may make reasonable efforts to ensure the accuracy, correctness and reliability of the CrowdSpark Content but is not obliged to do so. Without limiting the generality of clause 20.2, we make no representation or warranties as to the accuracy, correctness and reliability of the CrowdSpark Content. CrowdSpark offers a search feature on the Websites but disclaims any responsibility for the completeness or accuracy of any directory or search result.

20.5. Any material obtained by you through your use of the Services is obtained at your own discretion and risk, and you will be solely responsible for any damage to your computer system or any loss of data that may result from use of the Services. CrowdSpark will not be liable for any damages of any kind arising from the use of the Services, or the unavailability of the same, including but not limited to loss of data, loss of profits, and direct, indirect, incidental, punitive or consequential damages. You, not CrowdSpark, assume the entire cost of necessary servicing, repair or correction due to your use of the Services.

20.6. No conditions, warranties or other terms apply to the Services except to the extent that they are expressly set out in the Terms or a separate License Agreement.

20.7. Some jurisdictions do not permit the exclusion or limitation of implied warranties or liability for certain categories of damages. Therefore some or all of the limitations above may not apply to you.

21. Limitation of Liability

21.1. Nothing in these Terms shall exclude or limit CrowdSpark’s liability for losses that may not be lawfully excluded or limited by applicable law.

21.2. THE LAWS OF CERTAIN JURISDICTIONS, WHICH MAY INCLUDE QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES, LIMITATIONS OF LIABILITY OR CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.

21.3. IN NO EVENT SHALL CROWDSPARK, ITS DIRECTORS, MEMBERS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED), FUNDAMENTAL BREACH, PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR IN ANY WAY RELATING TO THE USE OF THE SERVICES, OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY A USER ON ANY INFORMATION OBTAINED FROM CROWDSPARK, OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORISED ACCESS TO CROWDSPARK RECORDS, PROGRAMMES OR SERVICES. IF THE FOREGOING EXCLUSION OF LIABILITY DOES NOT APPLY FOR ANY REASON, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CROWDSPARK, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), FUNDAMENTAL BREACH, PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR IN ANY WAY RELATING TO THE USE OF THE SERVICES EXCEED THE TOTAL SUM OF ALL AMOUNTS YOU PAY, IF ANY, TO CROWDSPARK FOR ACCESS TO OR USE OF THE SERVICES.

22. Miscellaneous

22.1. Unless the applicable laws of your jurisdiction of residence require that the laws of such jurisdiction govern (which may include Quebec), these Terms and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to these Terms or its formation (including any non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of Western Australia, Australia. You and CrowdSpark submit any disputes arising out of or in connection with these Terms to the exclusive jurisdiction of the Courts of Australia. Notwithstanding the above, CrowdSpark retains the right to apply for injunctive relief (or other equivalent types of urgent legal remedy) in any jurisdiction.

22.2. Failure by CrowdSpark to exercise or enforce any legal right or remedy which is contained in the Terms (or which CrowdSpark has the benefit of under any applicable law), shall not be deemed a waiver of such provision nor of the right to enforce such provision.

22.3. Subject to any signed License Agreement, these Terms constitute the whole agreement between you and CrowdSpark and no representation, statement, inducement oral or written, not contained herein shall bind any party to the Terms.

22.4. If any provision of these Terms and Conditions is unlawful, void or unenforceable, that provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

22.5. If we are unable to perform our obligations under these Terms due to matters beyond our reasonable control, including but not limited to, fire, explosion, war, civil disorder, industrial disputes, or other disasters or governmental laws and regulations imposed, we will not have any liability to you for our failure to perform.

22.6. It is the express wish of the parties that these Terms and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.  Notwithstanding the forgoing, these Terms and all related documents may appear in multiple languages.  In the event of any inconsistency or conflict amongst languages, the English version will prevail.

23. Contacts and Notices

23.1. CrowdSpark may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.

23.2. If you have any questions regarding these Terms or any other matter, you may contact us by emailing contact@crowdspark.com. Any notice must be sent by email to contact@crowdspark.com or by post to:

CrowdSpark

216 E 45 Street, Suite 1201

10017 New York, NY

United States Of America

24. Take down/termination

Notwithstanding any of these Terms, CrowdSpark reserves the right, without notice and in its sole discretion, to block user access to the Services and/or disable a Registered User’s Account.

25. Privacy Policy

CrowdSpark is committed to protecting your privacy and the forms part of these Terms. Please read the CrowdSpark Privacy Policy for details on how we collect, use, and disclose personal information.

26. Definitions

In these Terms and Conditions of Use, the following terms have the following meanings, unless otherwise specified:

“Account” means an account opened by a Registered User through the Websites or Apps to allow the Registered User to use the Services.

“Apps” means CrowdSpark mobile applications comprising CrowdSpark computer programs designed to run on smartphones, tablet computers, and other mobile devices.

“Assessment Period” in relation to a Project means the period on and from the Effective Date until such time as CrowdSpark notifies you that a Winning Entry has been selected for that Project.

“Award” means the monetary sum attached to a Project Brief, to be paid by CrowdSpark in consideration for the Winning Entry for that Project Brief.

“Content License” means the license you grant to CrowdSpark in respect of the User Content as described in clause 7.

“Creative License” means the license you grant to CrowdSpark in respect of an Entry as described in clause 13.

“CrowdSpark”, “we”, “us”, “our” and “ours” means CrowdSpark Ltd (a company incorporated under the laws of Australia, ACN 078 661 444), and includes all of its subsidiaries, divisions, branches, affiliates or companies under common ownership or control of CrowdSpark Ltd.

“CrowdSpark Content” means all of the content displayed through the Services including, but not limited to, all names, logos, trademarks (whether registered or unregistered), Website design, databases, computer codes, text, graphics, data, photographic images, moving images, sound, illustrations, software and the selection and arrangement thereof. For the avoidance of doubt, CrowdSpark Content does not comprise User Content.

“Effective Date” means the date you upload or otherwise submit User Content to CrowdSpark through the Websites, Apps, by email, or any other method.

“Entry” and “Entries” means any contribution that you Upload or otherwise submit to CrowdSpark in response to a Project Brief and refers exclusively to creative work, ideas and concepts, including written or visual submissions, produced and owned in every respect by you.

“Intellectual Property Rights” includes all industrial and intellectual property rights throughout the world including copyright, moral rights, trademarks, patents, rights to protect confidential information and any similar rights.

“License Agreement” means any separate agreement or contract you have signed with CrowdSpark.

“Licensee” means distributors, resellers, end users, and other relevant third parties that license content from CrowdSpark.

“Modified Terms” means these Terms, as changed or modified.

“Moral Rights” include, but are not limited to the right of integrity, the right of paternity and all other rights of authors of copyright works customarily referred to as “moral rights” throughout the world.

“Newscall” means the alerts sent to Users using geolocated or group based push notifications to inform Users of relevant events happening in nearby geographical locations with the intention of collecting User Content from such news events.

“Project” means any active project that calls for the submission of ideas or conceptual pre-production documents (such as a film treatment, screenplay, storyboard, director’s vision presentations, or entire production dossiers), made available from time to time through the Services or other means.

“Project Brief” means a brief that may appear on our Services or otherwise communicated from time to time relating to an active Project.

“Promotional Purposes” means marketing and promotional purposes including but not limited to, use on the Services, corporate materials, advertisements for CrowdSpark or as part of promotional licensing agreements.

“Registered User” means a person who creates an Account through the registration process on the Websites or Apps. In order to create an Account you must enter some personal details (name and email address), a login name and a password. A confirmation email will be sent to the Registered User upon submission of the data and acceptance by the Registered User of these Terms.

“Registration Data” means information provided by Registered Users to open an Account.

“Related Entities” means, in relation to a party to this Agreement or other entity, a body corporate which is:

  1. a controlling company;
  2. a controlled company; or
  3. a controlled company of a controlling company,
  4. of that Party or other entity, and in respect of the Company includes CrowdSpark Ltd ACN 078 661 444.

For the purposes of this definition, one body corporate controls another when at the relevant time:

  1. it owns either directly or indirectly or is otherwise in a position to cast, or control the casting of, not less than 50% of the shares entitled to vote at general meetings of that other body corporate; or
  2. it controls the composition of a majority of the board of that other body corporate and “controlled” and “controlling” will be construed accordingly.

“Released Persons” means directors, officers, members, employees, contractors, agents, advisors, joint-venture parties, sub-contractors and Related Entities of CrowdSpark, and for the avoidance of doubt, does not include the User or Registered User.

“Royalties” means cash payments received by CrowdSpark from a third party in respect of licensing User Content to the third party.

“Services” means the Websites, Apps or any other content, product, service or feature available through the Websites or the Apps and owned by CrowdSpark.

“Terms” means these Terms and Conditions of Use and the CrowdSpark Privacy Policy.

“Trojan Horse” means any malicious computer program that misleads or is designed to mislead users of its true intent.

“Upload” and “Uploaded” means to submit or upload User Content that CrowdSpark has received in a complete, readable and downloadable form.

“User”, “you” and “yours” means any user of the Services, including but not limited to Registered Users.

“User Content” means any contribution that you Upload to the Services or otherwise submit to CrowdSpark, including but not limited to, an Entry, text, photographs, graphics, video or audio material, or any combination thereof.

“Websites” or “Website” means the websites ultimately owned and operated by, or otherwise under the control of CrowdSpark, including but not limited to, www.crowdspark.com, report.crowdspark.com, reportage.crowdspark.com, platform.crowdspark.com, and www.pitch.crowdspark.com.

“Winning Entry” means an Entry that is selected by CrowdSpark at the end of the Assessment Period of a Project, and which is eligible for the Award attached to the relevant Project Brief.