SPARKLE TERMS OF SERVICE

Effective October 7, 2019

POPSUGAR Inc., together with its subsidiaries and affiliates (“POPSUGAR,” “we,” “us,” “our”), owns and operates the Sparkle Service. The “Sparkle Service” or “Service” includes all code, plugins, API, specifications, technology, documentation, platform and services, including any fixes, updates or upgrades, in connection with the mobile-optimized content management system called Sparkle.

  • YOUR ACCEPTANCE OF TERMS AND PRIVACY POLICY

    By browsing, accessing or using any part of the Service or creating an Account, you agree to be bound by these Sparkle Terms of Service (the “Sparkle Terms”), POPSUGAR's Privacy Policy (“Privacy Policy”) and any other terms or policies made available on the Service that apply to you, or separately agreed to by you and POPSUGAR, all of which are incorporated herein by reference (together, the “Agreement”). Your use of the Service is expressly conditioned upon your assent to all of the terms and conditions of this Agreement to the exclusion of all other terms. If you do not agree to any of these terms and conditions, then you should not use the Service.

    Please note that (1) the section below entitled YOU ARE AGREEING TO BINDING ARBITRATION contains an arbitration clause and class action waiver. By agreeing to these Sparkle Terms, you agree to resolve all disputes through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and that you waive your right to participate in class actions, class arbitrations, or representative actions; and (2) the section below entitled NEW JERSEY RESIDENTS contains an important message to residents of New Jersey.

  • MODIFICATION OF TERMS

    POPSUGAR reserves the right, in its sole discretion, to modify these Sparkle Terms at any time by providing a notice via the Service or by email. You will be responsible for reviewing and becoming familiar with any such modifications. Continued use of the Service by you following such notice constitutes your acceptance of these Sparkle Terms as modified.

  • ELIGIBILITY AND USE OF SERVICE

    By accessing the Service, you represent and warrant that: (i) you are at least 18 years old; (ii) you are authorized to use the email that is associated with your Account (as defined below); and (iii) all registration information you submit is accurate and truthful and you will maintain the accuracy of such information.

    If you are an employee or representative of a third-party advertiser or partner who has engaged POPSUGAR (“Client”) pursuant to a separate written agreement (“Client Agreement”) ”), the terms of the Client Agreement are expressly incorporated herein by reference and form part of this Agreement. Any services provided by POPSUGAR related to the Service pursuant to such Client Agreement shall be referred to as the “Client Services.” In such event, you further represent and warrant that you are legally permitted and authorized to use and access the Service on behalf of Client and bind the Client to these Sparkle Terms. Client is fully responsible for Client’s API and all actions taken under Accounts including any related technical issues, which may impact integration with the Service. To the extent that such Client Agreement covers the integration of the Service with an API or similar technology of Client, you also expressly agree on behalf of Client that POPSUGAR may use the Client API and any related technology to enable the integration with the Service.

    Certain features of the Service permit use of the Service on your websites or properties (or those of Client) and on third party properties or channels such as social media platforms. If you use the Service on websites or other platforms or properties owned and/or controlled by you or Client (“Client Sites”), you are fully responsible for such Client Sites, including all content made available on the Client Sites. If you use the Service on third party properties or channels, you represent and warrant that you will comply with the terms of such third-party platforms, including, but not limited to, the terms of service, in connection with your use of the Service.

  • YOUR ACCOUNT

    When you establish an account (“Account”), you must (i) provide POPSUGAR with accurate, complete, and updated registration information including an accurate email address; (ii) keep your Account secure; (iii) not share your account with any other person in your organization; (iv) not use information of a third party with the intent to impersonate that third party without appropriate authorization; and (v) not to create another account or otherwise use the Service if we have disabled your Account. Any failure to comply with this provision may result in immediate termination of your Account. POPSUGAR reserves the right to refuse registration of or cancel an Account in its discretion.

  • USER CONTENT

    As between you and POPSUGAR, and subject to the license below, you (or the Client, where applicable) own all right, title and interest in and to all content and materials that you upload or post to the Service, including any Client API, as well as graphics, images, photographs, text, or audiovisual materials uploaded to the Service, and including any incorporated branding, logos, trademarks, service marks (“User Content”). POPSUGAR does not acquire ownership of your User Content. You are solely responsible for User Content uploaded by you.

    By uploading or posting User Content to the Service, you grant to POPSUGAR a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use, edit, modify, reproduce, host, display, distribute, publicly perform, and prepare derivative works of such User Content in connection with the Service, including, but not limited to, display, distribution and/or transmission of such User Content on or through the Service (which may include, without limitation, display on POPSUGAR’s properties, the Client’s properties, and/or on third party properties or channels such as social media platforms), for the purpose of providing the Service to you and for promotion of the Service and/or POPSUGAR in any format or medium and through any channels, as well as for POPSUGAR’s internal business purposes (such as to understand our audience and to improve the Service). You agree not to assert any moral rights or rights of publicity against POPSUGAR for using User Content in accordance with these Terms of Service.

  • USER CONTENT

    As between you and POPSUGAR, and subject to the license below, you (or the Client, where applicable) own all right, title and interest in and to all content and materials that you upload or post to the Service, including any Client API, as well as graphics, images, photographs, text, or audiovisual materials uploaded to the Service, and including any incorporated branding, logos, trademarks, service marks (“User Content”). POPSUGAR does not acquire ownership of your User Content. You are solely responsible for User Content uploaded by you.

    By uploading or posting User Content to the Service, you grant to POPSUGAR a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use, edit, modify, reproduce, host, display, distribute, publicly perform, and prepare derivative works of such User Content in connection with the Service, including, but not limited to, display, distribution and/or transmission of such User Content on or through the Service (which may include, without limitation, display on POPSUGAR’s properties, the Client’s properties, and/or on third party properties or channels such as social media platforms), for the purpose of providing the Service to you and for promotion of the Service and/or POPSUGAR in any format or medium and through any channels, as well as for POPSUGAR’s internal business purposes (such as to understand our audience and to improve the Service). You agree not to assert any moral rights or rights of publicity against POPSUGAR for using User Content in accordance with these Terms of Service.

  • REPORTS AND RESULTS

    Subject to the terms and conditions of this Agreement, you may remotely access and view certain reports via your dashboard through the Service. POPSUGAR shall own and retains all right, title and interest in and to reports and all other results, data and/or information provided to you through the service (collectively, “Results”). You may use the Reports for Client’s internal business purposes only and solely in connection with your use of the Service pursuant to this Agreement and not for any other purpose.

  • FEE AND PAYMENT

    The Sparkle Service is provided to you free of charge, subject to any payment obligations under a Client Agreement. POPSUGAR reserves the right to modify its fees and payment policies for the Service in the future by providing you with written notice via the Service or by email.

  • MODIFICATION AND TERMINATION

    POPSUGAR reserves the right to modify, discontinue, terminate or suspend all or part of the Service without prior notice. POPSUGAR may terminate, suspend, impose limits or additional terms on certain features and/or the Service or restrict your access to parts or all of the Service (and/or any feature thereof) at any time, for any reason, and without warning, which may result in the forfeiture and destruction of all information associated with your Account. This Agreement shall remain in full force and effect while you use any part of the Service. You may terminate your use of the Service or Account at any time by emailing us at sparkle-help@popsugar.com. Upon termination of your Account, your right to access and use the Service will immediately cease.

  • LIMITED LICENSES AND PROHIBITED ACTIVITIES

    The Service, Results any any other results and proceeds of the Client Services performed, are the exclusive property of POPSUGAR and/or its third party licensors. Subject to your compliance with this Agreement, POPSUGAR grants you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to access and use the Service solely for Client’s business purpose, and in accordance with this Agreement, including any technical specifications provided by POPSUGAR.

    Your license to use the Service does not include any of the following prohibited activities. You shall not (and shall not enable or permit any third party to) copy, duplicate, reproduce, modify, create derivative works of, distribute, decompile, reverse engineer, attempt to derive source code or unauthorized data from, rent, lease, loan, sell, assign, grant a security interest in, or otherwise transfer your right to use, the Service or any underlying technology unless applicable laws prohibit such restriction or you have our written content from POPSUGAR to do so. You agree not to attempt to obtain unauthorized access to the Service. You may not use the Service for any fraudulent, abusive or otherwise illegal purpose. You may not use software, devices, or other processes to “crawl” or “spider” the Service. You may not develop or use any third party applications or software that interact with the Service without our written consent or access our Service through any other unauthorized technological means or for the purpose of, or with the intent to, build a competing service or product. Notwithstanding anything in a Client Agreement to the contrary, any violation of the above may be grounds for immediate termination of your right to access or use the Service.

  • FEEDBACK

    Any suggestions, feedback or related materials you submit to POPSUGAR are considered non-confidential and non-proprietary unless specifically agreed to in writing signed by POPSUGAR. You grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.

  • YOUR REPRESENTATIONS AND WARRANTIES

    You warrant, represent and agree that your use of the Service and all User Content: (i) will not violate, misappropriate, or infringe upon the intellectual property rights or proprietary rights of any third party; (ii) will comply with all applicable laws, statutes, rules, ordinances and regulations; (iii) will not breach any agreement with or obligation to Client and/or any third party; and (iv) will not introduce or install any malware, virus, worms, Trojan horses, or other harmful content or code into the Service.

  • YOUR OTHER OBLIGATIONS

    You are responsible for all of your activity under your Account and in connection with the Service. You shall be responsible for (i) obtaining and maintaining any equipment or ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, software, and long distance or local telephone service; (ii) ensuring that such equipment or ancillary services are compatible with the Service; (iii) taking all precautions necessary and/or reasonable to protect yourself, your computer systems and other property from viruses, worms, Trojan horses, and other harmful content and code; and (iv) any incidental costs, fees and expenses that you may incur on your own resulting from your use of the Service.

  • GENERAL TERMS

    • Disclaimer of Warranties

      YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. POPSUGAR PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. SELLERS PROVIDE ALL PRODUCTS ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. POPSUGAR DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

      Without limiting any other disclaimers set forth in the Agreement, POPSUGAR makes no representations or warranties concerning:

      • The availability of the Service in a particular territory or for any particular device, operating system, or browser;
      • The availability of the Service on an uninterrupted or error-free basis at all times, or that any defects or errors will be corrected;
      • That the Service will be free of viruses or other harmful materials;
      • The continued availability or support for the Service or any particular feature of the Service;
      • The security of the Service at any particular time or location;
      • That the results of using the Service will meet your expectations.
    • Release of Claims

      You and Client hereby release POPSUGAR, its officers, employees, agents and successors, from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of your use of the Service.

      IF YOU ARE A CALIFORNIA RESIDENT, YOU SHALL AND HEREBY DO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

    • Indemnification

      You agree on behalf of yourself and Client to indemnify and hold POPSUGAR and its respective officers and employees, harmless from any claim or demand (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) relating to or arising from your use of the Service, your violation of this Agreement, or any activity under your Account. You further agree on behalf of Client to indemnify, defend and hold harmless POPSUGAR and its respective officers and employees, harmless from any claim or demand (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) arising from or related to User Content (including, but not limited to, the Client API or any related technology or materials provided by Client in connection with the Service) and your use of the Service in connection with Client Sites and/or any third-party platforms, sites or channels.

    • Limitation of Liability

      TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL POPSUGAR, ITS PARENTS, SUBSIDIARIES, OR AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF: (A) THE SERVICE FEES PAID BY YOU IN YOUR USE OF THE SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE TERM, OR (B) $100; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND POPSUGAR’S REASONABLE CONTROL. BECAUSE SOME JURISDICTIONS, INCLUDING WITHOUT LIMITATION NEW JERSEY, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY SET FORTH ABOVE, THE ABOVE LIMITATIONS MAY NOT APPLY IF YOU ARE A RESIDENT OF NEW JERSEY OR ANY OTHER JURISDICTION THAT DOES NOT ALLOW SUCH LIMITATIONS. IN SOME CIRCUMSTANCES, POPSUGAR MAY BE LIABLE FOR ITS OWN NEGLIGENCE, RECKLESSNESS OR INTENTIONAL MISCONDUCT.

    • Limitation Period for Claims

      You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

    • U.S. Export Compliance

      You may not use the Service if (i) you are personally subject to U.S. government sanctions or are using the Service as an employee or representative of a Client that is subject to U.S. government sanctions; (ii) you are located in a country that is subject to U.S. Government sanctions or are using the Service as an employee or representative of a Client such that your use of the Service would violate U.S. law. You represent and warrant that you and the Client are not subject to such sanctions.

    • Privacy

      You acknowledge and agree that POPSUGAR shall have the right to use all data received from the Service, including data received from you and your use of the Service as part of the POPSUGAR’s business operations and in connection with the Service, subject to the terms of its Privacy Policy.

    • Waiver and Severability

      The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. POPSUGAR shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond POPSUGAR’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of the Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable.

    • Governing Law and Choice of Forum

      The Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof. Subject to the arbitration provision and for all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California.

    • Entire Agreement

      You and POPSUGAR agree that the Agreement (including all terms or policies expressly incorporated herein) and the Client Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. If there is any conflict between the Sparkle Terms and the Client Agreement, the Sparkle Terms will govern.

    • Assignment; No Agency

      This Agreement is not assignable, transferable or sublicensable by you except with POPSUGAR’s prior written consent. POPSUGAR may transfer, assign or delegate this Agreement and its rights and obligations without consent. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind POPSUGAR in any respect whatsoever.

    • Survival of Terms

      All provisions of the Agreement, which by their nature are intended to survive performance hereof by you or POPSUGAR, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability, shall survive the completion of the performance, cancellation or termination of this Agreement. Headings for each section have been included for your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede.

  • NEW JERSEY RESIDENTS

    If, and to the extent that New Jersey law applies, with respect to residents of New Jersey, the terms in the sections of these Sparkle Terms listed below do not limit any rights you may have as a consumer under New Jersey law and are intended to be only as broad and inclusive as permitted by the laws of the state of your residence:

    • Disclaimer of Warranties
    • Limitation of Liability
    • Limitation Period for Claims

    Subject to the foregoing, POPSUGAR reserves all rights, defenses, and permissible limitations under New Jersey law. Nothing in this Section shall modify the binding arbitration clause and waiver for class action and jury trial set forth in the section below entitled YOU ARE AGREEING TO BINDING ARBITRATION.

  • YOU ARE AGREEING TO BINDING ARBITRATION

    Certain portions of this Arbitration section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and POPSUGAR agree that we intend for this section to satisfy the “writing” requirement of the Federal Arbitration Act.

    You and POPSUGAR agree to arbitrate any and all disputes or claims arising out of, in connection with, or relating to use of the Service or any aspect of the relationship between you and POPSUGAR. This includes agreeing to arbitrate claims that arose before this Agreement came into effect and any claims that may arise after termination of this Agreement. The arbitration shall be conducted in accordance with the American Arbitration Association (“AAA”) Consumer Arbitration Rules then in effect. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator.

    TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT (I) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; (II) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND (III) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS. If the specific provision of this paragraph is found to be unenforceable, then the entirety of the section of this Agreement entitled BINDING ARBITRATION shall be null and void.

    Arbitration is a method of claim resolution that is less formal than a traditional court proceeding. It uses a neutral arbitrator instead of a judge or jury and is subject to limited review by courts. YOU AGREE TO WAIVE YOUR RIGHT TO A JURY TRIAL AND UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.