Terms & Conditions
1.1 These Terms & Conditions are between Spark Networks Services GmbH (the “Company”, “Spark Germany”, “we,” “us,” or “our”) and you (“you,” “your,” or “yourself”). All references to the Company, where relevant, also refer to the Company under its former corporate name Affinitas GmbH.
1.2 We are proud to provide online personals services for single adults to meet each other.
1.4 We are responsible for the content of this website. Our details are:
Spark Networks Services GmbH
Kohlfurter Straße 41/43 10999 Berlin, Germany
Geschäftsführer: David Clark
Handelsregisternummer: 115958 B (Registergericht: AG Charlottenburg, Berlin)
1.5 The Agreement, as it may be amended from time to time, applies to all users of any our Services.
1.6 If you become a Member, you will be able to access the Services associated with the Company product(s) for which you hold a Membership. If you meet certain requirements, the Company may in its discretion make your profile visible to Users of other Websites and Apps operated by the Company for which you do not have a Membership.
1.7 The Agreement also applies to you use of all features, widgets, plug-ins, applications, content, downloads and/or other services that:
1.7.1 we own and control and make available to you; or
1.7.2 also post a link to this Agreement.
1.8 You are reminded to abide by all applicable laws. You also undertake not to use our Services for unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, hateful, or racially or ethnically offensive purposes (or for purposes which are otherwise objectionable).
1.9 If you violate these Terms & Conditions, we may terminate your access to our Services.
2.1 In these Terms & Conditions:
2.2 “Apps” refers, individually and collectively, to each and all of the Mobile Apps, Desktop Apps, and Web Apps.
2.3 “Desktop Apps” means the desktop applications published by the Company and which may be offered from time to time.
2.4 “Member” means any person whose Membership to has been accepted by the Company and whose Membership remains valid for the time being. The term ‘Member’ includes free Members and paying Members, as the context requires.
2.5 “Membership” means your entitlement to one or more Services by virtue of being a Member. Such entitlement may vary depending on whether the Membership is a paid Membership or a free Membership (and the relevant Company product for which you have a Membership).
2.6 “Mobile Apps” means the iOS application and the Android application or any other mobile/tablet device software applications published by the Company and which may be offered from time to time.
2.8 “Services” means any and all of the services provided by the Company by any means (including, but not limited to, the Websites, the Apps, or any other technology).
2.10 “User” means any Member and/or Visitor.
2.11 “Visitor” means any person who browses the Services.
2.12 “Web Apps” means the web applications published by the Company and which may be offered from time to time.
2.13 “Website(s)” means, individually or collectively, the websites operated by the Company.
2.14 As the context may require, words in the singular may be read as the plural and the plural as the singular.
3. YOUR PRIVACY – COLLECTION AND RETENTION OF PERSONAL INFORMATION
3.2 We do not always encrypt your messages, and we reserve the right to monitor those messages and other content for compliance with our Terms & Conditions (for example, where the content of your messages is reported for breaching our Terms & Conditions).
4. ACCOUNTS AND SECURITY
4.1 To access the Services, you must have an account.
4.2 You must maintain, and are responsible for, the confidentiality of your logon and password.
4.3 If requested, you must provide us with a form of identification to verify your identity.
4.4 The Services are open to everyone – subject to approval of an application by the Company according to these Terms & Conditions.
4.6 You may not use our Services if:
4.6.1 You are under the age of 18.
Children are not eligible to use our Services, and we ask that anyone under the age of 18 years old not submit any personal information to us. Our Services are not directed at anyone under the age of 18 years old. We also do not collect or maintain personally identifiable information from those Users who we know are under the age of 18 years old. Should we learn or be notified that we have collected information from Users under the age of 18 years old, we will immediately delete such personally identifiable information;
4.6.2 You have ever been convicted of a violent or sexually related criminal offence.
We do not conduct criminal background screenings of our Users, nor are we able to personally identify each User. The Company cannot be held liable for false declarations made by a Member. It is thus important to take certain common-sense precautions when meeting with another Member. For example, consider informing a close friend or relative of any meeting and plan your first meeting in a public place.
4.6.3 You have previously been banned from using our Services or similar services.
4.7 The Company cannot be held liable for actions of any nature committed by any User, including any such actions in the course of any events which are organised by the Company or by others using the Services.
5. CONDITIONS OF ADMISSION
5.1 You must agree to these Terms & Conditions in order to use our Services. They govern your use of our Services.
5.3 If you:
5.3.1 use our Services;
5.3.2 click to join and/or sign in; and/or
5.3.3 check a box to indicate you agree to these Terms & Conditions,
(as may be the case), we will take this as your acceptance of these Terms & Conditions and your agreement to their content.
5.4 The Company reserves the right to offer admission to its Services in its full discretion.
5.5 By using our Services, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside.
6. CODE OF CONDUCT
6.1 Each User undertakes to comply strictly with all applicable laws and regulations, as well as with these Terms & Conditions.
6.2 Each User irrevocably undertakes to refrain from:
6.2.1 Discrimination on the basis of a User’s real or supposed: age, race, color, ethnicity, national origin, sexual orientation, religion, gender identity, family situation, pregnancy, physical appearance, surname, state of health, disability, genetic characteristics, personal beliefs, political opinions or union activities;
6.2.2 Using the Services for any professional or commercial purposes, whether directly or indirectly, including offering, soliciting or promoting chargeable goods or services or financial compensation. Prostitution is formally prohibited on our Services;
6.2.3 Engaging in any illegal activity whatsoever using our Services;
6.2.4 Posting any content or making any statement in any form which:
(a) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
(b) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
(c) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive;
(d) is defamatory, obscene, pornographic, vulgar or offensive;
(e) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
(f) is violent or threatening or promotes violence or actions that are threatening to any other person;
(g) promotes illegal or harmful activities or substances;
(h) contains a link to any of content associated with the above prohibitions; and
(i) is otherwise contrary to applicable laws and regulations; and
6.2.5 Disseminating any personal information of any other User, including any contact details or similar, without that User’s consent.
6.3 Each User undertakes to report any abuses to the Company, as well as any improper comments or conduct by other Users.
6.4 We conduct regular inspections of the use of our Services, including for safety and fraud protection purposes. We reserve the right to remove all or part of any content created, used or circulated publically or privately by Users which is not compliant with applicable laws or regulations, or which violates these Terms & Conditions.
6.5 We may contact any User to request that the User remedy any non-compliance with applicable laws or regulations, or these Terms & Conditions.
6.6 We may exclude or remove any User from its Services in our sole discretion for any reason, including, but not limited to, any non-compliance with applicable laws or regulations or these Terms & Conditions.
7. CONDITIONS OF ACCESS
7.1 You shall select a username and a password when signing up to our Services.
7.2 When you sign up, you will become a Member of the particular brand of the Services for which you have registered. Although the Company in its discretion may make your profile visible to the Users of one or more of its other Services if you meet requirements, you will not be a Member without specific registration.
7.3 Your username and the password shall be personal and confidential. Each Member shall keep them confidential and undertakes not to notify or disclose them to third parties or other Members to prevent fraud or phising.
7.4 All Users undertake not to use another Member’s username or password, or any other personal information of another User.
7.5 Any breach of these provisions may lead to the cancellation of a Member’s Membership, without prejudice to the liability incurred by the relevant Member due to the use of the username and/or password by another Member or third party.
7.6 Each Member shall take care not to disclose strictly personal information.
7.7 We will take any necessary measures to halt fraudulent behaviour, including to prevent the prohibited sharing of usernames or passwords.
7.8 We reserve the option of removing:
7.8.1 information published or present on the Websites for more than 6 months;
7.8.2 the account of a Member which has not been used for more than 6 months after the end of a subscription or has never been used after admission to Membership, after verification that no subscription is in progress.
7.9 Each User undertakes not to carry out any action likely to hinder the operation of the Services and undertakes not to disseminate or arrange for the dissemination of viruses, spam, logic bombs, software applications, etc.
8. PAID FEATURES
8.1 You may purchase a paid Membership for one or more of the products offered by the Company.
8.2 Your paid Membership will only give you access to the particular Company product for which you have registered. Although the Company in its discretion may make your profile visible to the Users of one or more of its other Services if you meet requirements, you will not be a Member of those other Services without registering for it specifically.
8.3 The price and payment procedures are permanently accessible on the Websites.
8.4 All prices stated include all relevant local taxes.
8.5 We reserve the right to change the cost of any of our Services. If you are not happy with the cost of any Services, you may cancel your Membership in accordance with these Terms & Conditions.
8.6 To the extent permitted by applicable laws and regulations, no refunds will be offered (except in exceptional circumstances such as major service failures). There will be no refund of any payment made by you for a paid Membership if you haven’t cancelled your contract according to these Terms & Conditions.
8.7 If you do not pay any amount due pursuant to these Terms & Conditions:
8.7.1 We reserve the right to suspend your access until such time as the outstanding payment is received or to terminate the contract without prior notice. The contract period shall remain unaffected by the temporary closure.
8.7.2 We may, in accordance with applicable law, forward any debt in arrears for a reasonable period to an external collection agency for recovery. Debt recovery fees will be charged by the external collection agency on the overdue account balance.
8.7.3 In accordance with applicable law, you may be charged 10% of the overdue account balance as an expense for debt recovery.
8.7.4 You are entitled to prove that the account balance is not in fact outstanding, or that the account balance is lower than alleged.
8.7.5 This clause shall not affect the assertion of damages caused by the overdue account balance.
8.8 We may, from time to time, offer paid features (such as subscriptions, micropayments, etc.) through other service providers, such as the Apple app store or the Android market (each, an “App Store”).
8.9 Such paid features may be subject to other payment conditions and other conditions than those in these Terms & Conditions. The relevant App Store may require you to agree with its own terms & conditions. Any such applicable terms will be brought to your attention prior to purchase. You agree to comply with, and your license to use our Services is conditional upon your compliance with, all relevant terms and conditions of the applicable App Store
9. AUTOMATIC RENEWAL
9.1 We automatically renew all paid Memberships before the expiry of the term of the paid Membership (where permitted by applicable law). When you first subscribe for your paid Membership, you acknowledge that when your paid Membership expires it will automatically renew for the duration and at the cost indicated to you at your initial purchase. Where required by applicable law, the renewal date will be specified in a renewal notice provided to you. IF YOU DO NOT WANT YOUR PAID MEMBERSHIP TO AUTOMATICALLY RENEW, YOU MUST CANCEL YOUR PAID MEMBERSHIP IN ACCORDANCE WITH THE PROCESS SET OUT BELOW IN THESE TERMS & CONDITIONS.
10. CANCELLATION AND WITHDRAWAL
10.1 There are three ways of cancelling your Membership:
10.1.1 Cancellation of free Membership – you may cancel at any time (see Section 11);
10.1.2 Cancellation of your paid Membership during the 3 day cooling-off period (see Section 12);
10.1.3 Cancellation of the automatic renewal of your paid Membership after the cooling-off period has expired – you may cancel automatic renewal at any time and enjoy our Services until the end of the paid term (see Section 13).
11. CANCELLATION OF FREE MEMBERSHIP
11.1 You may cancel your free Membership at any time.
11.2 You may cancel by logging into your account on the Websites and following the links, or by writing to Customer Care at https://support-en.elitesingles.ca/hc/en-ca/requests/new or by email to [email protected] or by post to
Customer Care – Canada
Spark Networks Services GmbH
Kohlfurter Straße 41/43
10999 Berlin, Germany
12. CANCELLATION OF YOUR PAID MEMBERSHIP DURING THE 3 DAY COOLING-OFF PERIOD
12.1 As a paying Member, you may withdraw from your paid Membership at any time within the first three days of making your initial payment provided that you have not started using the Services (for example, by sending messages to other Members).
12.2 You may withdraw by logging into your account on the Websites and following the links, or by writing to Customer Care at https://support-en.elitesingles.ca/hc/en-ca/requests/new or by email to [email protected] or by post to
Customer Care – Canada
Spark Networks Services GmbH
Kohlfurter Straße 41/43
10999 Berlin, Germany
12.3 If you cancel your Membership within the first 3 days of your paid Membership and you have made any payment in advance for the Services, we will refund these amounts to you (again, provided that you have not started using the Services).
13. CANCELLATION OF AUTOMATIC RENEWAL
13.1 If you are a paying Member and you did not cancel your paid Membership in accordance with section 12, you may apply for cancellation at the latest 24 hours before the date of renewal of the subscription. If you cancel your paid membership less than 24 hours before the expiry of the term of your paid Membership, YOUR PAID MEMBERSHIP WILL BE AUTOMATICALLY RENEWED IN ACCORDANCE WITH THESE TERMS & CONDITIONS (WHERE ALLOWED BY APPLICABLE LAW).
13.2 THE CANCELLATION OF YOUR PAID MEMBERSHIP WILL BE EFFECTIVE UPON THE EXPIRY OF THE RELEVANT PAID PERIOD AND YOU WILL HAVE FULL USE OF OUR SERVICES UNTIL THAT TIME. NO REFUND IS APPLICABLE UNLESS APPLICABLE LAW OR THESE TERMS & CONDITIONS OTHERWISE PROVIDE.
13.3 Following cancellation of your paid Membership, you will retain a free Membership with a more limited scope of Services.
13.4 You may cancel your automatic renewal by logging into your account on the Websites and following the links, or by writing to Customer Care at https://support-en.elitesingles.ca/hc/en-ca/requests/new or by email to [email protected] or by post to
Customer Care – Canada
Spark Networks Services GmbH
Kohlfurter Straße 41/43
10999 Berlin, Germany
14. CANCELLATION OF YOUR MEMBERSHIP BY THE COMPANY
14.1 If we cancel a Member’s Membership for that Member’s breach of these Terms & Conditions, the Member shall not be entitled to a refund for the period remaining to elapse until the expiry of the account, without prejudice to any damages sought by us as compensation for the loss suffered.
14.2 If we cancel a Member’s Membership in its sole discretion for reasons other than that Member’s breach of these Terms & Conditions, the Member shall be entitled to a refund for the period remaining to elapse until the expiry of the account.
15. TECHNOLOGY REQUIREMENTS
15.1 The technology you use to access our Services may be required to meet minimum specifications provided by us.
15.2 We may require that you download and install updates to the Apps from time to time. You acknowledge and agree that we may update the Apps with or without notifying you and add or remove features or functions to the Apps (and/or the Apps, the Websites and/or the Services) at any time in our sole discretion.
15.3 You acknowledge and agree that we have no obligation to:
15.3.1 make any subsequent versions of the Apps available to you;
15.3.2 make the Apps, the Websites and/or the Services available to you at all;
15.3.3 continue to support the Apps, the Websites and/or the Services in any way. You acknowledge that your access to the Apps, the Websites and/or the Services may not be continuous, features may change during your use, and we may terminate your access or stop offering any or all of the Apps, the Websites and/or the Services at any time.
16. TERMS & CONDITIONS – UPDATES AND AMENDMENTS
16.1 The Company may update and amend these Terms & Conditions at any time and the Company will make the updated Terms & Conditions available through the Services. You understand and agree that you will be deemed to have accepted the updated Terms & Conditions if you use the Services after the updated Terms & Conditions are made available to you. If at any point you do not agree to any part of the Terms & Conditions in operation, you should immediately stop using the Services.
17. PROVISION OF THE SERVICE
17.1 You acknowledge and agree that the Company may make changes to, or stop providing, the Apps, the Websites and/or the Services, or restrict your use of the Apps, the Websites and/or the Services, at any time without notifying you in advance.
17.2 You are solely responsible for all data, SMS, mobile carrier, Internet and telecommunications fees and charges incurred in connection with your use of the Apps, the Websites and/or the Services.
17.3 You acknowledge and agree that the Company can disable or deny you access to the Apps, the Websites and/or the Services, without notifying you in advance, for any reason or no reason including, without limitation, for any violation of these Terms & Conditions and/or if the Company suspects that you have used any aspect of the Services to conduct any fraudulent or illegal activity. If the Company disables your access to your account, you may be prevented from accessing the Services, your account details or any materials contained in your account.
18. LICENSE, RESTRICTIONS AND CONDITIONS OF USE
18.1 Subject to the terms and conditions of this Agreement and for the sole purpose of using the Services, the Company hereby grants you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to:
18.1.1 install any or all of the Mobile Apps on one or more mobile devices which are owned by you, are under your control and which meet the Company’s minimum specifications;
18.1.2 install any or all of the Desktop Apps on one or more computers which are owned by you, are under your control and which meet the Company’s minimum specifications; and
18.1.3 view, review and utilize the Apps and any related information provided to you by the Company.
18.2 You agree not to access, or attempt to access, the Services by any means other than through the Websites or the Apps. You specifically agree not to access, or attempt to access, the Services through any automated means (including, without limitation, through the use of scripts, bots, unauthorized third party apps, spiders or web crawlers).
18.3 You agree that you will not, in connection with your use of the Apps, the Websites and/or the Services, violate any applicable law, ordinance, rule, regulation or treaty.
18.4 You shall not connect to or use the Apps, the Websites and/or the Services in any way that is not expressly permitted by these Terms & Conditions.
18.5 You may not:
18.5.1 remove any proprietary notices from the Services or any copy of software provided to you by the Company (“Software”);
18.5.2 cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Apps, the Services or any Software;
18.5.3 sell, assign, rent, lease, act as a service bureau, or grant rights in the Apps, the Services or any Software, including, without limitation, through sublicense, to any other person or entity without the prior written consent of the Company; or
18.5.4 make any false, misleading or deceptive statement or representation regarding the Company and/or the Apps, the Websites or the Services.
18.6 Without limiting the foregoing, YOU AGREE THAT YOU WILL NOT:
18.6.1 engage in any activity that:
(a) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
(b) is defamatory, obscene, pornographic, vulgar or offensive;
(c) is violent or threatening or promotes violence or actions that are threatening to any other person;
(d) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
(e) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
(f) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive;
(g) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or
(h) is otherwise contrary to applicable laws and regulations;
18.6.2 disseminate any personal information of any other User, including any contact details or similar, without that User’s consent;
18.6.3 institute, assist, or become involved in any type of attack, including, without limitation, denial of service attacks, upon the Apps, the Websites and/or the Services (or any servers, systems or networks connected to the Apps, the Websites and/or the Services);
18.6.4 attempt to obstruct, disrupt or interfere with the operation of the Apps, the Websites and/or the Services or any other person’s or entity’s use of the Apps, the Websites and/or the Services (or any servers, systems or networks connected to the Apps, the Websites and/or the Services);
18.6.5 attempt to gain unauthorized access to the Apps, the Websites, the Services, accounts registered to other Users, or any servers, systems or networks connected to the Apps, the Websites and/or the Services;
18.6.6 use the Apps, the Websites and/or the Services to
(a) develop, generate, transmit or store information that is unlawful or illegal, defamatory, harmful, abusive, hateful, racially or ethnically offensive that encourages conduct that would be considered a criminal offence; or
(b) perform any unsolicited commercial communication not permitted by applicable law.
18.7 Each User undertakes to report any abuses to the Company, as well as any improper comments or conduct by other Users.
18.8 We conduct regular of the use of our Services from time to time, including for safety and fraud protection purposes. We reserve the right to remove all or part of any content created, used or circulated publically or privately by Users which is not compliant with applicable laws or regulations, or which violates these Terms & Conditions.
18.9 We may contact any User to request that you remedy any non-compliance with applicable laws or regulations, or these Terms & Conditions.
18.10 The Company may at its option, terminate its relationship with you, or may disable your account immediately if it determines you are using the Services contrary to the restrictions found in this Section 18 or any other terms of these Terms & Conditions.
18.11 We may exclude any User from, or terminate any User’s access to, our Services in our sole discretion for any reason, including, but not limited to, any non-compliance with applicable laws or regulations or these Terms & Conditions. You acknowledge and agree that you are solely responsible, and the Company has no responsibility or liability to you or any other person or entity, for any breach by you of these Terms & Conditions or for the consequences of any such breach.
19. LINKS TO OTHER WEBSITES
19.1 Our Services may contain links to other websites and to resources provided by third parties (“Other Sites”). The Other Sites are linked to provide information only and are solely for your convenience.
19.2 The Company has no control over, does not accept and assumes no responsibility for the content or products or services of Other Sites and does not accept any responsibility for any loss or damage that may arise from your use of them.
19.4 Our Services may also feature advertising by third parties. By allowing third parties to advertise on our Services, the Company does not make any representations or warranties in respect of or endorse the products or services advertised.
20. INTELLECTUAL PROPERTY
20.1 All intellectual property rights (including the various rights conferred by statute, common law and equity in and in relation to copyright, patents, trademarks, service marks, trade names and/or designs (including the “look and feel” and other visual or non-literal elements) (whether registered or unregistered) in:
20.1.1 our Services;
20.1.2 Subject to clause 20.3, information content on our Services; and
20.1.3 All the design, text and graphics, software, photos, videos, music, sounds, and their selection and arrangement, and all software compilations, underlying source code and software (including applets and scripts) of our Services,
are owned by or licensed to the Company. You shall not, and shall not attempt to, obtain any title to any such intellectual property rights. All rights are reserved.
20.2 None of the material listed in clause 20.1 may be reproduced or redistributed or copied, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, sold, rented or sub-licensed, used to create derivative works, or in any way exploited without the prior express written permission of the Company. You may, however, retrieve and display the content of our Services on a computer screen (including any tablet or smartphone device), store such content in electronic form on disk (but not on any server or other storage device connected to a network) or print one copy of such content for your own personal, non-commercial use, provided you keep intact all and any copyright and proprietary notices. You may not otherwise reproduce, modify, copy or distribute or use for commercial purposes any of the materials or content on our Services without the express prior written permission of the Company.
20.3 Title, ownership rights and intellectual property rights in and to content accessed using our Services is the property of the applicable content owner or supplier and may be protected by applicable copyright, trademark or other law. Subject to the limited rights described in clause 20.2, this Agreement gives you no rights to such content.
20.4 The authors of the literary and artistic works in the pages in our Services have asserted their moral rights to be identified as the author of those works.
20.5 Any material you transmit, post or submit to the Company either through our Services or otherwise (Material) shall be considered (and the Company may treat it as) non-confidential (subject to the Company’s obligations under privacy legislation). You grant the Company a royalty-free, perpetual, irrevocable, non-exclusive licence to use, copy, modify, adapt, translate, publish and distribute world-wide any Material (other than Ideas).
20.6 All comments, suggestions, ideas, notes, drawings or concepts in which intellectual property rights subsist which are disclosed or offered to the Company by you or offered in response to solicitations by the Company regarding our Services (Ideas) shall be deemed to be and shall remain the property the Company and you hereby assign all existing present and future intellectual property rights in Ideas, to the Company. You must do all things reasonably requested by the Company to assure further the assignment of such rights. You understand and acknowledge that the Company has both internal resources and other external resources which may have developed or may in the future develop ideas identical to or similar to Ideas and that the Company is only willing to consider Ideas on these terms. In any event, Ideas are not submitted in confidence and the Company assumes no obligation, express or implied by considering it. Without limitation, the Company will exclusively own all now known or hereafter existing rights to the Ideas of every kind and nature throughout the world and shall be entitled to unrestricted use of the Ideas for any purpose whatsoever, commercial or otherwise without compensation to the provider of the Ideas.
21. DISCLAIMER OF WARRANTIES
21.1 You understand and agree that your use of the Apps, the Websites and/or the Services is at your sole risk.
21.2 The Apps, the Websites and the Services are provided on an “as is” and “as available” basis without warranties or conditions of any kind, either express or implied (to the maximum extent permitted by applicable law).
21.3 To the maximum extent permitted by applicable law, the Company expressly disclaims all warranties and conditions including, without limitation, warranties and conditions of satisfactory quality, merchantability, fitness for a particular purpose, non-infringement, and those arising from course of dealing or usage of trade.
21.4 The Company makes no warranty as to the accuracy, completeness or reliability of any materials, information or data available through, or the performance of, the Apps, the Websites and/or the Services.
21.5 The Company does not represent or warrant that:
21.5.1 you will be able to access or use the Apps, the Websites and/or the Services at the times or locations of your choosing;
21.5.2 that operation of the Apps, the Websites and/or the Services will be uninterrupted, timely, error-free;
21.5.3 your use of the Apps, the Websites and/or the Services will meet your requirements;
21.5.4 defects in the operation of the Apps, the Websites and/or the Services will be corrected; or
21.5.5 the Apps, the Websites and/or the Services is free of viruses or other harmful components.
21.6 You acknowledge and agree that any material downloaded or otherwise obtained through the use of the Apps, the Websites and/or the Services is at your own risk and that you will be solely responsible for any damage to your computer, mobile phone or other device or any loss of data resulting from downloading or obtaining such material.
21.7 Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the Company expressly disclaims all warranties and conditions to the maximum extent permitted by applicable law.
22. LIMITATION OF LIABILITY
22.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL , THE COMPANY, ITS SUBSIDIARIES OR HOLDING COMPANY, ANY SUBSIDIARY OF ANY SUCH HOLDING COMPANY, AFFILIATES, SUCCESSORS, ASSIGNS, AND THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, WHETHER INDIVIDUALLY OR COLLECTIVELY (THE “RELATED PARTIES”), BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF PROGRAMS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR SERVICE INTERRUPTIONS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
22.2 WE DO NOT CONDUCT BACKGROUND CHECKS ON MEMBERS REGISTERING FOR THE SERVICES IN ANY WAY. ANY ATTEMPT BY US TO SCREEN MEMBERS IS NOT A GUARANTEE OF SAFETY ON THE WEBSITE. YOU ARE RESPONSIBLE FOR YOUR OWN SAFETY ON THE WEBSITE AND WHEN MEETING OTHER MEMBERS IN PERSON.
22.3 THE RELATED PARTIES WILL NOT BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL AND/OR CONSEQUENTIAL ARISING OUT OF THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF YOUR COMMUNICATIONS WITH AND/OR INTERACTIONS WITH ANY OTHER MEMBER OF THE SERVICES, OR ANY INDIVIDUAL YOU MEET VIA THE SERVICES.
22.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OR TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT THE LIMITATIONS IN THIS CLAUSE, THE RELATED PARTIES’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SERVICES DURING THE TERM OF YOUR MEMBERSHIP OR SUBSCRIPTION TO THE MAXIMUM EXTENT PERMITTED BY LAW.
22.5 IN ALL CASES, THE RELATED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
23.1 You agree to, and you hereby, defend, indemnify, and hold the Related Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Related Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter:
23.1.1 any of your data posted or otherwise provided on the Services;
23.1.2 your Material;
23.1.3 your use of the Services and your activities in connection with the Services, including your communications and meetings with Members you meet through the Services;
23.1.4 your breach or alleged breach of this Agreement or any additional terms;
23.1.5 your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Services or your activities in connection with the Services;
23.1.6 information or material transmitted through your computer or other devices, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity;
23.1.7 any misrepresentation made by you; and
23.1.8 the Related Parties’ use of the information that you submit to us (including your Material)
(all of the foregoing, “Claims and Losses”).
You will cooperate as fully required by Related Parties in the defense of any Claims and Losses. Notwithstanding the foregoing, Related Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Related Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Related Party.
24. GOVERNING LAW; JURISDICTION
24.1 The laws applicable to the interpretation of these Terms & Conditions shall be the laws of the Province of Ontario and the federal laws applicable therein, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and excluding principles of conflict of laws. Except as provided in Section 25 below, you irrevocably submit to the personal and exclusive jurisdiction of the state and federal courts located in Ontario for all disputes arising out of or related to your use of any of the Services.
24.2 The governing law does not impact your rights as a consumer according to the consumer protection laws and regulations of your country of residence.
24.3 You acknowledge and agree that the Company would be irreparably damaged if the terms of these Terms & Conditions were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Terms & Conditions, in addition to such other remedies as we may otherwise have available to us under applicable laws.
25. DISPUTE RESOLUTION; ARBITRATION –WITHIN THE UNITED STATES AND CANADA
25.1 This provision shall apply to the resolution of any dispute arising out of or in any way related to the Services, this Agreement (and any amendments or addenda thereto), and the subject matter hereof, including without limitation any contract, tort, statutory or equity claims between you and us or our officers, directors, employees, agents, subsidiaries, or joint ventures (the “Dispute”); provided, however, that any claims specifically described in subparagraph (b) below will not be included in the definition of Dispute. You may also assert claims in small claims court if your claims qualify. In the event of any Dispute, the parties are encouraged to attempt to resolve the Dispute by informal means. If the parties are not able to do so, the Dispute will be resolved only by binding arbitration.
25.2 Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. Any Dispute shall be subject only to binding arbitration. The parties expressly agree that there shall be no jury trial or right to a jury trial, or right to any other proceeding to resolve any Dispute in any court. In the event of any Dispute, both parties agree that the arbitration provision in this Agreement will be governed, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1-9 (“FAA”) to the maximum extent permitted by applicable law.
25.3 All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties, and any party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive, or declaratory relief in an appropriate court of law. This provision shall not prevent either party from filing a petition in court to confirm an arbitration award.
25.4 The parties expressly agree that any Dispute is personal to them, and any Dispute shall only be resolved by an individual arbitration. Neither party agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither party agrees that a Dispute can be brought as a class or representative action outside of arbitration, or on behalf of any other person or persons. The parties agree that that a Dispute may only be resolved through an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding. If your agreement to waive any right to a jury trial or to participate in a class action is found to be unenforceable, then the entirety of this arbitration section will be null and void and neither you nor we will be entitled to arbitrate our dispute.
25.5 The arbitration of the Dispute will be administered by the American Arbitration Association (“AAA”) or, in the event the AAA declines or is unable to administer the arbitration, by an arbitration forum or arbitrator that you and we mutually agree upon. If, after making a reasonable effort, you and we are unable to agree upon an arbitration forum or arbitrator, the AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be conducted in accordance with the AAA’s Commercial Arbitration Rules (“Commercial Rules”) and, when deemed appropriate by the arbitration forum or arbitrator, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Consumer Procedures”), or the appropriate rules of any alternative arbitration forum selected by you and us or appointed by a court, subject to the following modifications:
25.5.1 The arbitration will be conducted before a single arbitrator who will be a licensed attorney or a former judge and will have at least five (5) years of legal experience in the resolution of commercial disputes.
25.5.2 As limited by the FAA, the terms of this Agreement, and the applicable AAA rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute. This does not include the power to conduct a class arbitration or a representative action, which is prohibited by the terms of this Agreement as stated above. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding, or any proceeding on behalf of or involving more than one person or persons.
25.5.3 The parties may take discovery through interrogatories, depositions and requests for production that the arbitrator determines to be necessary and appropriate.
25.5.4 The prevailing party in any of the following matters (without regard to the Limitation of Liability provisions) shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any of the following circumstances:
(a) a motion which any party is required to make in any court to compel arbitration of a Dispute;
(b) any appeal of an arbitration award, whether to the arbitrator or the courts, for the purpose of vacating or modifying the award; or
(c) any action to enforce the confidentiality provisions stated herein we will pay the amount of any arbitration costs and fees charged by the AAA for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. In no event will we pay for your attorneys’ fees unless required by law.
25.5.5 To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to:
Spark Networks Services GmbH
Kohlfurter Straße 41/43
10999 Berlin, Germany
25.5.6 You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The AAA Commercial Rules and Consumer Procedures, the forms you may need to begin the arbitration proceeding, and other information about the AAA, are available from the AAA, which can be contacted by mail at 1633 Broadway, Floor 10, New York, New York 10019, by telephone at (800) 778-7879, or through its website at www.adr.org.
25.6 This Agreement does not require you or us to submit to arbitration any Dispute involving our intellectual property rights in and to the websites or the Service, including, without limitation:
25.6.1 claims of infringement or misappropriation of any United States or foreign copyright, patent, trade secret, trademark, service mark or trade dress;
25.6.2 claims alleging violations of Title 17 of the United States Code, Sections 1201 and/or 1202, or of any similar foreign law; or
25.6.3 in any matter that involves any of the foregoing claims, for resolution or decision of any question of fact or law required to resolve such claim, including, but not limited to, questions required to decide or rule with respect to the infringement, misappropriation, validity, enforceability or ownership of any copyright, patent, trade secret, trademark, service mark or trade dress or with respect to any remedy or relief at law or in equity for any such infringement or misappropriation or for any violation of such Sections 1201 and/or 1202.
25.7 You and we acknowledge and agree that any violation of this Section 25 of this Agreement may cause the parties irreparable harm, and therefore you and we agree that the parties will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that the parties may have for a breach of this Section 25 of this Agreement.
25.8 With the exception of your agreement to waive any right to a jury trial or to participate in a class action, if any other provision in this Section 25 is held to be illegal, invalid or unenforceable, such provision shall be fully severable, this Section 25 shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this section, and the remaining provisions of this section shall remain in full force and effect. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of this Section 25 legal, valid and enforceable provision as similar as possible to the former provision.
26. LIMITATION OF TIME PERIOD TO COMMENCE ANY DISPUTE
26.1 Regardless of any statute of limitations or law to the contrary, and to maximum extent permitted by applicable law, any Dispute arising out of or related to the Services or this Agreement must be filed within six (6) months after the date in which the incident giving rise to the Dispute occurred; provided that, if the substantive law applicable to the arbitration prohibits the parties from agreeing to this limitations period, then the limitations period under the applicable substantive law shall control. The failure of a party to file an arbitration claim within the applicable limitations period shall constitute a waiver by that party of its right to bring such a claim relating to any Dispute in any form, and a complete bar to any claim based on any Dispute, and the arbitrator shall not have jurisdiction to make a determination for a party that has not brought its Dispute for determination within the applicable limitations period.
27.2 The Agreement is not intended to create a partnership, joint venture or relationship of principal and agent between the parties.
27.3 No waiver by the Company of any breach of this Agreement shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
27.4 The Company may assign its rights under these Terms & Conditions to any person or entity without your consent. The rights granted to you under these Terms & Conditions may not be assigned without the Company’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
27.5 Clauses 20 to 27 inclusive will survive termination or expiration of this Agreement.
27.6 Force Majeure
27.6.1 For the purposes of this clause 27.6, “Force Majeure Event” means any act or event beyond the reasonable control of the Company, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks.
27.6.2 The Company will not be liable for any failure to perform or any delay in performance of, any of its obligations under these Terms & Conditions caused by a Force Majeure Event.
27.6.3 In the event of a Force Majeure Event that results in Services being unable to be provided for 14 days or more, either party may terminate this Agreement with immediate effect upon written notice to the other and neither party will have the right to claim compensation from the other.