ACCESSPARKS TERMS & CONDITIONS

Residential Internet Terms and Conditions of Service

ACCESSPARKS RESIDENTIAL INTERNET SERVICE TERMS AND CONDITIONS

Thank you for choosing ACCESSPARKS for your Internet needs. This document is important–please read it carefully. 

THIS ACCESSPARKS RESIDENTIAL INTERNET SERVICE TERMS AND CONDITIONS AND ALL DOCUMENTS REFERRED TO HEREIN (collectively the “Agreement”), IS A LEGAL CONTRACT BETWEEN THE CUSTOMER (“USER,” “YOU”) AND ACCESSPARKS, LLC D/B/A ACCESSPARKS (“ACCESSPARKS,” “WE,” “US,” “OUR”) AND SETS FORTH THE TERMS AND CONDITIONS BY WHICH ACCESSPARKS WILL MAKE AVAILABLE (1) THIS WEBSITE AND ANY OTHER WEBSITES (MOBILE OR OTHERWISE) (collectively, the “Site”) THAT REFERENCE THE AGREEMENT AND/OR (2) THE SERVICES USER HAS ELECTED TO RECEIVE (“the Service(s)”).

  1. ACCEPTANCE AND MODIFICATION
  2. Acceptance

By visiting or completing a transaction on the Site, and/or by accepting or using the Services, you agree to the terms and conditions of the Agreement, and to any additional terms applicable to certain services or programs in which you may elect to participate. You also agree to our Privacy Statement, incorporated herein by reference and located at https://accessparks.com/privacy-policy/ (“Privacy Statement”), and you acknowledge that you will regularly visit this Agreement and our Privacy Statement to familiarize yourself with any and all updates. The Privacy Statement, together with this Agreement, and any other terms contained herein or incorporated herein by reference, are collectively referred to as the “Agreement.” The term “using” also includes any person or entity that access or uses the Site with crawlers, robots, data mining, or extraction tools or any other functionality.

This Agreement governs use of the Site as well as acceptance and use of the Services and any equipment provided by ACCESSPARKS and used in conjunction with the Services, such as Consumer Premises Equipment; an IP phone; Multimedia Terminal Adapter; Analog Telephone Adapter; or any other IP connection device (collectively, a “Device” or the “Equipment”).

  1. Modification

ACCESSPARKS RESERVES THE RIGHT, AT OUR SOLE DISCRETION, TO CHANGE OR MODIFY THIS AGREEMENT AT ANY TIME BY POSTING THE REVISED AND UPDATED AGREEMENT ON ACCESSPARKS’ WEBSITE AT LEAST 30 DAYS IN ADVANCE OF THE EFFECTIVE DATE OF ANY CHANGES. ACCESSPARKS MAY NOTIFY USER OF ANY CHANGE BY: POSTING NOTICE OF CHANGES ON ACCESSPARKS WEBSITE; NOTIFYING USER BY EMAIL OR US MAIL; AND/OR NOTIFYING USER ON USERS MONTHLY BILLING STATEMENT. USER AGREES THAT ANY/ALL OF THESE METHODS ADEQUATELY ADVISES YOU OF CHANGES AND THAT THEY SATISFY ANY AND ALL APPLICABLE LEGAL REQUIREMENTS THAT COMMUNICATIONS BE IN WRITING. USER’S NON-TERMINATION OR CONTINUED USE OF SERVICES AFTER CHANGES ARE POSTED CONSTITUTES USER’S ACCEPTANCE OF THIS AGREEMENT AS MODIFIED BY THE POSTED CHANGES.

  1. SERVICES

Internet Access – Subject to the Services characteristics contained herein, ACCESSPARKS shall provide, for the sole purpose of personal, family or household use and not for resale, Internet connections between the ACCESSPARKS provided wireless Equipment and ACCESSPARKS Internet backbone. Internet connections are provided consistent with the speeds advertised within the Service plan purchased by USER, reflecting performance under normal conditions. ACCESSPARKS reserves the right to interrupt those speeds if necessary for Equipment upgrades and network maintenance, and  ACCESSPARKSwill try to inform USER of any such interruptions ahead of time. ACCESSPARKS shall have the unrestricted right to engage subcontractors in rendering Services under this Agreement.

  1. ACCEPTABLE USE

As a condition of use of the Service, USER represents, warrants, and covenants to ACCESSPARKS that USER will use the Service in accordance with the Agreement as it may be updated from time to time.

  1. Ownership of the Site; License to use the Site

The Site, any content on the Site, and the infrastructure used to provide the Site are proprietary to us, our affiliates, and other content providers. By using the Site and/or receiving Service from ACCESSPARKS, and thus accepting this Agreement: (a) ACCESSPARKS grants you a limited, nontransferable, nonexclusive, revocable license to use the Site pursuant to this Agreement and pursuant to any additional terms and policies set forth by ACCESSPARKS; and (b) you agree not to reproduce, distribute, create derivative works from, publicly display, publicly perform, license, sell, or re-sell any content, software, products, or services obtained from or through the Site without the express permission of ACCESSPARKS.

  1. Access to the Site

ACCESSPARKS retains the right, at our sole discretion, to deny Services or use of the Site or an account to anyone at any time and for any reason or no reason. Although we use reasonable efforts to keep the Site and your account accessible, the Site and/or your account or Services may be unavailable from time to time. You understand and agree that there may be interruptions in Services or events, Site access, or access to your account due to circumstances both within our control (e.g., routine maintenance) and outside of our control. By way of example only, you agree that ACCESSPARKS may not be available on your mobile device and that, if you use a mobile device to try to access ACCESSPARKS, you are subject to the terms of your agreement with your mobile carrier and may incur charges from your mobile carrier, which are solely your responsibility. You agree that ACCESSPARKS will not be liable to you or to any third party for any inability of you to access ACCESSPARKS or for any modification, suspension, or discontinuance of the Site or the services offered through it.

  1. General Practices Regarding Use and Storage

You agree that we may establish general practices and limits concerning use of the Services, including but not limited to the maximum period of time that data or other content will be retained by ACCESSPARKS and the maximum storage space that will be allotted on our servers on your behalf. You agree that we have no responsibility or liability for the deletion or failure to store any of your information, account data, or other content maintained or uploaded in connection with your use of the Site or the Services. You acknowledge that we reserve the right to terminate any accounts that are inactive for an extended period of time or that are determined, in our sole discretion, to be fraudulent. You further acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.

  1. Use of the Site

As conditions of your use of the Site, and in addition to other conditions set forth in this Agreement, you agree that:

(i) You are of sufficient age, and are legally authorized, to register and use this Site, and to use AccessPark’s products and Services, as specified in this Agreement;

(ii) You are able to create a binding legal obligation;

(iii) You are not barred from receiving products or services under applicable law;

(iv) You will not attempt to use the Site with crawlers, robots, data mining, or extraction tools or any other functionality;

(v) Your use of the Site will at all times comply with this Agreement and be for your own use and not for any resale;

(vi) You will use the Site only for legitimate transactions that comply with the letter and spirit of the terms of the respective offers;

(vii) You will not attempt to transfer your access to the Site to another person or allow another person to use your account;

(viii) You will use the Site only within the United States, its territories, and possessions and not from outside these locations;

(ix) You have the right to provide any and all information you submit to the Site, and all such information is accurate, true, current, and complete;

(x) You will update and correct information you have submitted to the Site and ensure that it is accurate at all times (out-of-date information may invalidate your account); and,

(xi) You will only make purchases, receive benefits, or otherwise participate in programs through the Site by enrolling on the Site. 

  1. Additional Conditions of Use:

User Conduct

You are solely responsible for all images, information, text, photographs, graphics, messages, or other materials (“content”) that you upload, post, publish, or display (hereinafter, “upload”) or email or otherwise use via the Site. The following are examples of the kind of content and/or use that is illegal or prohibited by ACCESSPARKS. You agree not to use the Site or the Services offered through the Site to:

(i) email or otherwise upload any content that (A) infringes any intellectual property or other proprietary rights of any party; (B) you do not have a right to upload under any law or under contractual or fiduciary relationships; (C) contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (D) poses or creates a privacy or security risk to any person; (E) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (F) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (G) in the sole judgment of ACCESSPARKS, is objectionable or which restricts or inhibits any other person from using or enjoying the Site, or which may expose ACCESSPARKS or its users to any harm or liability of any type;

(ii) interfere with or disrupt the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site;

(iii) violate any applicable local, state, federal, or international law, or any regulations having the force of law;

(iv) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

(v) solicit personal information from anyone under the age of 18;

(vi) harvest or collect email addresses or other contact information of other users from the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;

(vii) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or

(viii) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Site.

ACCESSPARKS reserves the right to investigate and take appropriate legal action against anyone who, in ACCESSPARKS’ sole discretion, violates this provision, including without limitation, removing the offending content from the Site, suspending or terminating the account of such violator(s) and reporting the violator(s) to law enforcement. Nothing contained in ACCESSPARKS’ Agreement limits the actions that ACCESSPARKS or its suppliers may take or remedies available in any way. Certain violations may subject you to civil and/or criminal liability. Non-enforcement of these Terms does not constitute a waiver in any way and ACCESSPARKS reserves the right to enforce this Agreement at its sole discretion.

If your account is terminated for any reason or no reason, you agree: (a) to continue to be bound by ACCESSPARKS’ Agreement; (b) to immediately stop using the Site; (c) that we reserve the right but have no obligation to delete your information and account data stored on our servers; and (d) that we are not liable to you or to any third party for termination of your access to the Site or Service or for deletion of your information or account data.

User Content

With respect to the content or other materials you upload through the Site or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title, and interest in and to such User Content, including, without limitation, all copyrights, and you grant ACCESSPARKS and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use your User Content in connection with the operation of the Site or services offered through the Site or the promotion, advertising, or marketing thereof, in any form, medium, or technology now known or later developed.

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information about the Site (“Submissions”), provided by you to ACCESSPARKS are non-confidential, and ACCESSPARKS is entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

You acknowledge and agree that ACCESSPARKS may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws, or government requests; (b) enforce this Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of ACCESSPARKS, its users, and the public. You understand that the technical processing and transmission of the Site, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

Third Party Material

Under no circumstances will ACCESSPARKS be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that ACCESSPARKS does not pre-screen content, but that ACCESSPARKS and its designees have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Site. Without limiting the foregoing, ACCESSPARKS and its designees have the right to remove any content that violates this Agreement or is deemed by ACCESSPARKS, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.

Third Party Websites

The Site may provide, or third parties may provide, links or other access to other sites and resources on the Internet. ACCESSPARKS has no control over such sites and resources and ACCESSPARKS is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that ACCESSPARKS is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods, or services available on or through any such site or resource.  Any dealings you have with third parties found while using the Site are between you and the third party, and you agree that ACCESSPARKS is not liable for any loss or claim that you may have against any such third party.

  1. INTELLECTUAL PROPERTY RIGHTS
  2. Service Content, Software and Trademarks

You acknowledge and agree that the Site may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Except as expressly authorized by ACCESSPARKS, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Site or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined above) that you legally upload to the Site. In connection with your use of the Site, you will not engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. Any use of the Site or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Site or distributed in connection therewith are the property of ACCESSPARKS, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by ACCESSPARKS.

The ACCESSPARKS name and logos are trademarks and service marks of ACCESSPARKS (collectively the “ACCESSPARKS Trademarks”). Other company, product, and service names and logos used and displayed via the Site may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to ACCESSPARKS. Nothing in this Agreement or the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of ACCESSPARKS Trademarks displayed on the Site, without our prior written permission in each instance. All goodwill generated from the use of ACCESSPARKS Trademarks will inure to our exclusive benefit.

  1. Copyright Complaints

ACCESSPARKS respects the intellectual property of others, and we ask our users to do the same. If you believe your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify ACCESSPARKS of your infringement claim in accordance with the procedure set forth below.

ACCESSPARKS will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to ACCESSPARKS’ Copyright Agent at support@accessparks.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail at 2868 Historic Decatur Road, San Diego, CA 92106 and by phone at 888-507-1128.

To be effective, the notification must be in writing and contain the following information:

(i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

(ii) a description of the copyrighted work or other intellectual property that you claim has been infringed;

(iii) a description of where the material that you claim is infringing is located on the Site, with enough detail that we may find it on the Site;

(iv) your address, telephone number, and email address;

(v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and

(vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

If you believe your User Content, which has been removed (or to which access has been disabled), is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:

(i) your physical or electronic signature;

(ii) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;

(iii) a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and

(iv) your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located ____________________ and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, ACCESSPARKS will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member, or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

In accordance with the DMCA and other applicable law, ACCESSPARKS has adopted a policy of terminating, in appropriate circumstances and at ACCESSPARKS’ sole discretion, users who are deemed to be repeat infringers. ACCESSPARKS may also at its sole discretion limit access to the Site and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

  1. SECURITY
  2. Special Export Control Notices

Software (defined above) available in connection with the Site and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Site or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Site, including as it concerns online conduct and acceptable content.  

In addition, and without in any way limiting the foregoing, the transfer of technology across national boundaries, including electronic transmission thereof, is regulated by the U.S. Government. USER agrees not to export, import or re-export, (including, without limitation by way of electronic transmission) any technology transmitted through ACCESSPARKS Services without first obtaining any required export license or governmental approval. USER agrees it will not directly or indirectly export or re-export such technology to any of those countries listed from time-to-time in supplements to Part 770 to Title 15 of the Code of Federal Regulations in Country Groups Q, S, W, Y or Z. The parties acknowledge that the foregoing lists are subject to regulatory change from time to time.

ACCESSPARKS will cooperate fully with legal authorities in the investigation of suspected crimes or service abuses. USER agrees to indemnify and hold harmless ACCESSPARKS, its agents and representatives, from any and all claims, costs, losses, damages, liabilities and expenses, including reasonable attorneys’ fees for any reason whatsoever, including without limitation, any harm, injury, loss or damage incurred by ACCESSPARKS, or any other party, arising out of USER’s breach of either this lawful use provision or ACCESSPARKS Broadband Internet Acceptable Use Policy.

  1. Account Confidentiality/Passwords

USER can best control the risks associated with security, and they are therefore solely responsible for maintaining and upholding the account security of their Service. You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (i) immediately notify us of any unauthorized use of your password or account or any other breach of security, and (ii) ensure that you exit from your account at the end of each session when accessing the Site or Services. If you remain signed into your account at the end of any session, any user accessing your device may be able to view and manipulate your account information and other sensitive information. We recommend that you exit from your account at the end of each session and that you use other security measures (for example, password protecting/”locking” a mobile device when not in use). We will not be liable for any loss or damage arising from your failure to comply with this Section.

Without limiting in any way the foregoing, ACCESSPARKS will not be responsible for any disruption of Service, corrupted files or viruses which affect the USER of the Service. It is USER’s responsibility to safeguard USER’s network and equipment through appropriate means (e.g. using commercially available software), from theft, unauthorized use or system corruption. Any detriment caused to the network as a result of USER’s failure to properly secure USER’s network and devices may result in the immediate termination of USER’s Service. USER is entirely responsible for any actions, damages, or costs incurred via their account, regardless of who is using that account.

  1. SERVICE CHARACTERISTICS
  2. Services Plans – ACCESSPARKS offers a range of Services plans with different speeds and data usage. Services plans are subject to availability and may include other promotional terms and conditions. If USER signs up for a Services plan that includes special or promotional offers, such offers may only be in effect for the initial Services Term of the plan. If USER changes or upgrades their Services plan, any special or other promotions may be subject to discontinuance or removal.
  3. Performance Levels – Speed is a function of the traffic experienced upon the wider network architecture of the Internet itself. ACCESSPARKS Services are provided speeds of the associated Services Plan selected. ACCESSPARKS will make a commercially reasonable effort to ensure that USERS receive the up and down speeds under the Services plan they signed up for throughout most of a USER’s daily use and reflecting performance under ideal conditions. USER must be conducting their speed tests directly connected the ACCESSPARK CPE Equipment via a wired ethernet cat5e or cat6 connection and the speed test needs to be performed to an industry qualified website (i.e.speedtest.net) that is nearest to the USER’s location. ACCESSPARKS will use and solely rely on an iperf test methodology to validate the performance of the speed. ACCESSPARKS is not responsible for speeds from points anywhere else on the internet and USER understands that content that USER may access through the Service may be subject to “caching” or several other factors that are beyond ACCESSPARKS control.
  4. Network Management – USER understands, acknowledges and agrees that ACCESSPARKS may use various tools and techniques in order to efficiently and reasonably manage its networks. ACCESSPARKS may employ traffic-management technology to allocate bandwidth across all of its customers and has the right at all times and without notice to remove, restrict access to or make unavailable any information or content residing on ACCESSPARKS servers.
  5. IP Addresses – Internet Protocol (“IP”) addresses are not portable and are not assigned for independent administration or distribution. Customer understands that IP assignments are not guaranteed, and may be modified as required by ACCESSPARKS and/or the American Registry for Internet Numbers (ARIN).
  6. SERVICE CREDITS

USER will be eligible for Service Credits from ACCESSPARKS based on a Service Outage Time (“the amount of time in minutes the Service is not available for use by the USER in a given calendar month.”). The Service Credit will be equal to the Service Outage Time divided by the total time in minutes of a calendar month, then multiplied by the monthly charge for the respective Service Plan. In no instance will the Service Credit exceed fifty (50%) of the monthly charge of the respective Service Plan. To receive a Service Credit, the USER must report the Service Outage to the toll-free number advertised to their specific community within five (5) days of such occurrence to receive a Service Credit. The Service Credit will be reflected on the USER’s following monthly billing statement and applied against the monthly service charge. Such Service Credit will be USER’s sole and exclusive remedies and ACCESSPARK sole obligation in connection with a failure to meet the objectives stated herein and under no circumstance shall a Service Outage be deemed a default under the Terms of this Agreement.

  1. EQUIPMENT; UNAUTHORIZED USAGE OF DEVICE, FIRMWARE OR SOFTWARE; MOBILE SERVICES/TCPA CONSENT
  1. ACCESSPARKS Equipment – ACCESSPARKS will provide USER the authorized wireless Equipment for use with the ACCESSPARKS Services. Only ACCESSPARKS Consumer Premises Equipment (“CPEs”) are permitted and authorized to be connected to the Services. ACCESSPARKS will own the CPE installed at the USER location, and ACCESSPARKS will monitor and upgrade said CPE as ACCESSPARKS determines to be necessary and appropriate. ACCESSPARKS may request that its CPE by returned to ACCESSPARKS upon the USER’s termination of the Services. If CPE is not returned within thirty (30) days of such request, USER will be liable for ACCESSPARK’s retail costs to replace the CPE.
  2. USER Equipment – It is the USER’s responsibility to ensure that the USER’s computer system and other electronic devices (i.e., cell phones, tablets, gaming electronics, etc.) meet the current minimum system requirements necessary to use the Service. USER’s computer equipment and electronic devices may not be or cease to be adequate to access the Service. In such event, USER’S sole remedy will be to upgrade computer equipment and electronic devices or terminate this Agreement.
  3. Unauthorized Usage — USER has not been granted any license to use the firmware or software used to provide the Service or provided to the USER in conjunction with providing the Service, or embedded in any Devices or Equipment, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. USER expressly agrees that any Device or Equipment is exclusively for use in connection with the Service and that ACCESSPARKS will not provide any passwords, codes or other information or assistance that would enable USER to use such Device or Equipment for any other purpose. ACCESSPARKS reserves the right to prohibit the use of any interface equipment that ACCESSPARKS has not provided to the USER. USER hereby represents and warrants that USER possess all required rights, including software and/or firmware licenses, to use any interface equipment that ACCESSPARKS has not provided to USER. In addition, USER shall indemnify and hold ACCESSPARKS harmless against any and all liability arising out of USER’s use of such interface equipment with the Services. USER shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.

USER shall not change the electronic serial number or equipment identifier of any Device or perform a factory reset of any Device without prior written consent from ACCESSPARKS. ACCESSPARKS reserves the right to terminate USER’s Services if ACCESSPARKS believes, in ACCESSPARKS sole and absolute discretion, that USER has tampered with any Device. In the event of such termination, USER will remain responsible for any termination fees as provided for in this Agreement. USER shall not attempt to hack or otherwise disrupt the Services or make any use of the Service that is inconsistent with its intended purpose.

  1. Mobile Services/TCPA Consent — To the extent you access Services through a mobile device, your wireless service carrier’s message and data rates and other fees may apply. Use of certain features of Services may be prohibited or restricted by your carrier, and not all features of Services may work with all carriers or devices. When accessing Services through a mobile device, unless you allow us access to your location, we may not be able to provide access to certain content if such content has geographic limitations.

By acknowledging this Agreement, you consent to our communicating with you on your mobile device, including through the use of an automatic telephone dialing system or a prerecorded or artificial voice, by SMS, MMS, text message or other electronic means and that certain information about your usage of the products and features may be communicated to us. You are not required to enter into this consent as a condition of using Services. By providing us with a telephone number, you expressly waive any protections afforded to you under federal, state, or corporate Do Not Call lists for the purpose of receiving telephone calls or text messages from us related to your use of the Service. By providing us with a telephone number, you represent and warrant that you are the authorized subscriber to that telephone number and that you have the authority to provide consent to be contacted at that telephone number.

By providing us with a telephone number and by explicitly opt-ing in during our website processes to the ACCESSPARKS Texts short code program for receiving SMS messages, you consent to receiving applicable messages. Message frequency varies. Message and data rates may apply. If you would like more information or to receive assistance with SMS rates or our Service, replying “HELP” to any message will provide you with our contact information via email at [EMAIL ADDRESS], via phone at [PHONE NUMBER], via text at [TEXT NUMBER], or online at [WEB ADDRESS] . If you would like to revoke this consent at any time, you may do so by contacting us through our customer support form at [WEB ADDRESS] or texting our support number at [TEXT NUMBER]. You also may opt out through your ACCESSPARKS account or otherwise according to instructions included in the communication you receive (for example, replying “STOP” to an SMS message). Even if you revoke this consent, you acknowledge that the remaining sections of the Terms will remain in effect. Carriers are not liable for delayed or undelivered messages. For any questions about privacy, please refer to our Privacy Policy.

  1. CANCELLATION / TERMINATION / CHANGE IN SERVICE

If USER chooses to cancel the Services at any point after the order is placed, but before the Services has been activated, USER will not be invoiced and will not be charged a processing fee. If USER wishes to cancel the Services before Services has been activated, the USER is required to notify ACCESSPARKS of USER’s intent to cancel prior to activation by calling ACCESSPARKS customer service at the toll-free phone number advertise to their specific community.

USER may terminate the Services at any time upon notice to ACCESSPARKS. Termination is effective on the date you contact ACCESSPARKS to cancel the Services or as of a future date designated by USER or ACCESSPARKS, provided ACCESSPARKS can support such future date. HOWEVER, PAID CHARGES ARE NOT SUBJECT TO REFUND, SO IF THE USER CANCELS SERVICES BEFORE THE END OF A BILLING CYCLE; THERE WILL BE NO PRO-RATED REFUNDS OR CREDITS FOR ANY PARTIAL-MONTH PERIODS REMAINING AFTER THE TERMINATION DATE. ADDITIONALLY, IF USER AGREED TO A SERVICES PLAN THAT REQUIRES A MINIMUM TERM COMMITMENT (“SERVICE TERM”), AND SERVICE IS TERMINATED PRIOR TO THE END OF THE SERVICE TERM, USER WILL BE SUBJECT TO AN EARLY TERMINATION FEE as set forth in the Additional Fee Statement (as defined herein).

If USER changes or upgrades the Services plan, any applicable prior Service Term will be terminated and USER will have a new Service Term as applicable to the new Service plan. Upon a change to a Services plan, any special or other promotions applied to USER’s account may be subject to discontinuance or removal if such promotion is no longer available.

Termination of the Services does not affect USER’s obligations under this Agreement, including USER’s obligation to pay all fees for Services rendered prior to termination and any termination, processing and administration fees incurred due to such termination. ACCESSPARKS accounts must be paid in full before a cancellation will be considered complete.

If all Equipment provided and owned by ACCESSPARKS is not returned within 30 days of cancellation or termination of Service, USER agrees to pay ACCESSPARKS the fees as set forth in the Additional Fee Statement (as defined herein). USER authorizes ACCESSPARKS and its agents to charge the Equipment replacement charge to the credit card on file with ACCESSPARKS. If ACCESSPARKS is unable to obtain a charge authorization for the full amount due, USER agrees to provide alternative payment in the form of a money order, cashier’s check, or other certified bank check within 10 days of notification of the amount due. USER bears all risk of loss of, theft of, casualty to or damage to the Equipment; from the time it is shipped to the USER until the time (if any) when it is returned to ACCESSPARKS in accordance with this agreement.

  1. TERMINATION AND SUSPENSION BY ACCESSPARKS

Inappropriate use or abuse of the Services by USER, as determined in the sole discretion of ACCESSPARKS, may result in account suspension, termination, and/or legal action. Inappropriate use or abuse of ACCESSPARKS Services by others can be traced, documented, reported to appropriate authorities and may be prosecuted to the fullest extent of the law.

ACCESSPARKS may terminate your account immediately if it determines, in its sole discretion, that USER has violated any of the provisions of this Agreement. ACCESSPARKS reserves the right to unilaterally terminate or suspend an account at any time, without providing a reason.

You agree that any termination of your access to Services under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or Services. Further, you agree that we will not be liable to you or any third party for any termination of your access to Services.

If USER’s Services are terminated by ACCESSPARKS for any reason, USER will remain fully liable and responsible to pay any fees that are still owed to ACCESSPARKS pursuant to this Agreement and for all costs ACCESSPARKS incurs to collect such amounts, including, without limitation, collection costs and attorney’s fees.

  1. FEES, PAYMENT, BILLING, AUTOMATIC PAYMENT
  2. Fees – Fees include, without limitation, set up or installation fees, monthly Services fees, monthly Equipment fees and other fees as forth below. ACCESSPARKS will invoice fees for Services and any Equipment in advance. USER agrees to pay all federal, state or local taxes arising under this Agreement. If, during the first thirty (30) days of service, the USER is having service or quality issues with the Telephony Service and/or Internet Service which ACCESSPARKS is not able to fix, the USER may cancel the Service and ACCESSPARKS will refund all monies paid (including installation cost).
  3. Additional Fees – All ACCESSPARKS Services are subject to additional fees, including, but not limited to surcharges and recovery fee, paper billing fee, late payment fee, unreturned Equipment fee or an early termination fee.
  4. Fee Changes – USER acknowledges and agrees that ACCESSPARKS has the right to change its Service fees, additional fees, or add new fees at any time, upon thirty (30) day notice to the USER (or lesser time as permitted by applicable law).
  5. Late Fees—The USER acknowledges that they will be subject to up to a ten (10%) late fee or the maximum allowed by law for late payments following the State-imposed grace period.
  6. USER Charges – USER acknowledges that USER may incur USER-initiated charges while using the Services. For example, charges may be incurred as a result of USER accessing certain information, or purchasing or subscribing to certain offerings, via the Internet. USER agrees that all such charges, including all applicable fees and taxes, shall be paid by USER and are not the responsibility of ACCESSPARKS.
  7. Automatic Payment – Subscription to all Service Plans requires Automatic Payment. By enrolling in this recurring payment program, you authorize ACCESS PARKS: (a) to initiate recurring automated clearing house (ACH) debit entries or debit card payments from the checking or savings account you specify, or (b) to initiate recurring charges from your specified credit card. The amount debited from your checking or savings account or charged to your credit card every month will be the then balance on your account. Your balance is the amount on your ACCESSPARKS statement. Once your enrollment is processed, all payments will be automatically withdrawn from your specified checking or savings account or charged to the designated credit or debit card on the ACCESSPRKS statement due date, unless you terminate your authorization in the manner described herein.

 

You agree to be bound by any rules your financial institution requires for pre-authorized electronic funds transfers and/or that your debit or credit card issuer requires for pre-authorized debit or credit card transactions. You are responsible for all fees charged by your financial institution associated with the pre-authorized payment option.

 

YOU HAVE THE RIGHT TO TERMINATE YOUR AUTHORIZATION AT ANY TIME ONLINE BY LOGGING INTO YOUR ACCOUNT AT ACCESSPARKS.COM AND TERMINATING AUTOMATIC PAYMENTS OR BY CALLING YOUR LOCAL ACCESSPARKS OFFICE AT 1-800-2 AND TERMINATING YOUR AUTHORIZATION WITH A ACCESSPARKS CUSTOMER ACCOUNT EXECUTIVE.

 

You must update all changes to your checking/savings account or credit/debit card information by logging into your account at acessparks.com. If you do not update your checking/savings account or credit/debit card information and ACCESSPARKS is unable to charge your credit card or withdraw funds from your debit card, checking account, or savings account for the amount due on your ACCESSPARKS account, you may be subject to applicable late fees, returned item charges and any fees or charges assessed by your financial institution.

 

ACCESSPARKS will make your monthly statement available to you online. You can access your monthly statement by logging into your account at ACCESSPARKS.com and clicking View Billing on the Overview tab or switching to the Billing tab. You agree to review each bill you receive and give ACCESSPARKS notice of any errors or disputed charges at least 72 hours prior to your statement due date.

 

ACCESSPARKS SHALL BEAR NO LIABILITY OR RESPONSIBILITY FOR ANY LOSSES OF ANY KIND THAT YOU MAY INCUR AS A RESULT OF A PAYMENT MADE ON ITEMS INCORRECTLY BILLED OR FOR ANY DELAY IN THE ACTUAL DATE ON WHICH YOUR ACCOUNT IS DEBITED OR YOUR CREDIT CARD IS CHARGED.

 

ACCESSPARKS reserves the right to change these terms or terminate this Program at any time. Notice may be given on or with your statement or by other methods.

  1. INSTALLATION AND ACCESS TO USER’S PREMISES

ACCESSPARKS will provide installation Services at the USER premises for a one-time (“Installation Charge”) charge per the Services Plan. As part of the installation process, modifications to the inside wiring in USER’s house may be required, and USER hereby consents to and authorizes any such modifications. USER authorizes ACCESSPARKS, and its employees, agents, contractors, and authorized representatives to enter USER’s premises in order to install, maintain, inspect, repair and remove the Equipment and/or Services. If USER is not the owner of the premises, upon request, USER will supply ACCESSPARKS with the owner’s name and address and written consent or other evidence that USER is authorized to grant access to the premises on the owner’s behalf or ACCESSPARKS may request permission from the owner to install the Services on the premises. This Agreement is contingent upon ACCESSPARKS obtaining a right of entry onto the premises and ACCESSPARKS shall not have any liability if access or right of entry to the premises is denied or limited for any reason. USER will not remove Equipment from the premises, modify the Equipment in any way, or connect the Equipment to any outlet other than the outlet to which the Equipment was initially connected to by the ACCESSPARKS installer. For such charges as ACCESSPARKS may determine, ACCESSPARKS may relocate the Equipment for USER within the premises at USER’s request.

  1. MOVING AND RECONNECTION

If USER moves during the term of this agreement and would like to relocate the Services, USER must place a relocation request with ACCESSPARKS. This request must contain the requested date of Services termination, plus the address and phone number of the new location, and, the prospective move-in date, and the requested transfer of Services date. Upon receipt of a request from USER, ACCESSPARKS will suspend all monthly fees from the requested termination date until Services relocation is completed. Upon transfer of USER’s account, USER agrees to continue to comply with all terms and conditions of this Agreement and the Service plan originally agreed to. Billing cycle and Service Term will recommence upon activation of ACCESSPARKS Services at the new location If ACCESSPARKS is unable to provide Services to the USER’s new location then this Agreement shall terminate with penalty and USER shall not be subject to any termination penalty.

  1. PRIVACY

ACCESSPARKS takes USER’s privacy seriously and has established a Privacy Policy which governs its collection, use, disclosure, management and security related to USER’s personal information. That Privacy Policy, which is incorporated into and is a part of this Agreement, may be found here: https://accessparks.com/privacy-policy/. The ACCESSPARKS Privacy Policy may be updated from time to time. By using the Services USER acknowledges that USER accepts the practices and policies outlined in ACCESSPARKS Privacy Policy. USER’s continued use of the Services after notice of any changes to the Privacy Policy has been provided will indicate USER’s acceptance of such changes.

  1. USER OBLIGATIONS

USER shall notify ACCESSPARKS immediately, in writing or by calling ACCESSPARKS customer support line, if any Device is stolen or if USER becomes aware at any time that USER’s Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When USER calls or writes, USER must provide an account number and a detailed description of the circumstances of the Device theft, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the termination of USER’s Service and additional charges. Until such time as ACCESSPARKS receives notice of the theft, fraudulent use or unauthorized use, USER will be liable for all use of the Services using a Device stolen from USER and any and all stolen, fraudulent or unauthorized use of the Service.

USER will be liable for any and all liability that may arise out of the content transmitted by USER or to any person, whether authorized or unauthorized, using USER’s Services or Device. USER shall ensure that all use of the Services and content comply with all applicable laws, regulations and written and electronic instructions for use. ACCESSPARKS reserves the right to terminate or suspend USER’s Services and remove any content from the Service, if ACCESSPARKS determines, in its sole and absolute discretion, that such use or content does not conform to the requirements set forth in this Agreement or interferes with ACCESSPARKS ability to provide Services to USER or others. ACCESSPARKS action or inaction under this Section will not constitute any review or approval of USER’s use or content.

USER has been advised and acknowledges that the Internet may contain information, materials, and language deemed adult in nature and inappropriate or offensive. The USER is responsible for all information received, transmitted, and/or stored by the USER, and the USER releases ACCESSPARKS from and agrees to indemnify ACCESSPARKS its officers, directors, agents, and employees against any and all claims, losses, or expenses relating to such information, materials, and language. This indemnification shall survive any termination of this Agreement.

  1. USER COMPLAINT RESOLUTION

ACCESSPARKS is working to provide the best service possible and welcomes USER’s ideas on how ACCESSPARKS can improve the quality of our service. USER can communicate USER’s views to ACCESSPARKS by calling 888-507-1128.

  1. WARRANTY

USER EXPRESSLY AGREES THAT USE OF THE SERVICES AND ANY EQUIPMENT IS AT USER’S SOLE RISK.  THE SERVICES AND ANY EQUIPMENT PROVIDED TO THE USER BY ACCESSPARKS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY. ACCESSPARKS DOES NOT WARRANT (i) THE UNINTERRUPTED, TIMELY OR SECURE USE OF THE SERVICE; (ii) THAT THE FUNCTIONS CONTAINED IN THE SERVICES OR ANY EQUIPMENT WILL MEET USER’s REQUIREMENTS; (iii) THAT THE SERVICES WILL BE ERROR-FREE OR FREE OF ANY VIRUSES, WORMS, SPAM, POP-UP ADVERTISING, SPYWARE, ADWARE OR OTHER HARMFUL COMPOMNENTS; OR (iv) THAT ANY PERSONAL INFORMATION, NON PERSONAL INFORMATION, DATA OR FILES USER SENDS OR RECEIVES VIA THE SERVICE WILL BE TRANSMITTED IN UNCORRUPTED FORM, WITHIN A REASONABLE TIME, OR FREE FROM UNAUTHORIZED ACCESS BY OTHERS OR THAT OTHER USERS WILL BE UNABLE TO GAIN ACCESS TO USER’S COMPUTER OR DEVICE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY ACCESSPARKS OR ACCESSPARKS AGENTS OR INSTALLERS, WHETHER ORAL OR WRITTEN, ARE INFORMATIONAL ONLY AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. SOME STATES DO NOT ALLOW LIMITATIONS ON THE SCOPE OF A LIMITATION OF WARRANTY OR HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO USER.

LIMITED WARRANTY – ACCESSPARKS WARRANTS THAT IT WILL USE REASONABLE EFFORTS TO RENDER SERVICES PURSUANT TO THIS AGREEMENT IN A TIMELY, PROFESSIONAL AND WORKMANLIKE MANNER IN ACCORDANCE WITH TIMELINES ESTABLISHED HEREIN. ANY CLAIM FOR BREACH OF THE FOREGOING WARRANTY MUST BE BROUGHT WITHIN SIXTY (60) DAYS AFTER USER’s ACTUAL DISCOVERY OF ANY DEFECT AND PRIOR TO THE EXPIRATION OF SIX (6) MONTHS FROM THE DATE THE APPLICABLE SERVICES WERE RENDERED. ACCESSPARKS WILL HAVE NO LIABILITY FOR ANY CLAIM MADE AFTER SUCH TIME. ACCESSPARKS DOES NOT WARRANT, HOWEVER, THAT YOUR USE OF ANY SERVICES WILL BE UNINTERRUPTED OR THAT THE OPERATION OF THE SERVICES WILL BE ERROR-FREE OR SECURE. ACCESSPARKS’ ENTIRE LIABILITY AND USER’s EXCLUSIVE REMEDY IN CASE OF BREACH OF THIS WARRANTY SHALL BE, AT ACCESSPARKS SOLE OPTION, EITHER RETURN OF ALL OR A PORTION OF THE SERVICE FEES PAID FOR THE CURRENT MONTH OF SERVICE, OR REPLACEMENT OR REPAIR OF CONNECTION SERVICES OR PRODUCTS. THIS IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY ACCESSPARKS. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO LIMITATIONS MAY NOT APPLY TO THE USER. IF ANY UNAUTHORIZED MODIFICATIONS ARE MADE TO THE EQUIPMENT OR SERVICES BY USER DURING THE WARRANTY PERIOD, IF THE SERVICES OR PRODUCTS ARE SUBJECT TO ABUSE, ACCIDENT, IMPROPER USE, OR IF USER BREACHES THE TERMS OF THIS AGREEMENT, THEN THIS WARRANTY SHALL IMMEDIATELY BE TERMINATED.

OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH THEREIN, ACCESSPARKS MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED IN REGARDS TO THE DEVICE OR EQUIPMENT, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE DEVICE OR ANY FIRMWARE OR SOFTWARE IS “ERROR FREE” OR WILL MEET USER’s REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE.

  1. LIMITATION OF LIABILITY / DISCLAIMER OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ACCESSPARKS OR ITS AFFILIATES OR EACH OF THEIR RESPECTIVE MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, CONTRACTORS OR AGENTS OR ANY OF THEIR SUCCESSORS AND ASSIGNS BE LIABLE TO THE USER OR ANY THIRD PARTY WITH RESPECT TO THE SERVICE OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS AND EXCLUSIONS HEREIN MAY NOT APPLY TO USER. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF ACCESSPARKS UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED THE SERVICE CHARGES WITH RESPECT TO THE AFFECTED TIME PERIOD.

ADDITIONALLY, ACCESSPARKS WILL HAVE NO LIABILITY (i) FOR ANY AMOUNT IN EXCESS OF THE SERVICE CHARGES WITH RESPECT TO THE AFFECTED TIME PERIOD; (ii) FOR ANY THIRD-PARTY FEES OR CHARGES, INCLUDING BUT NOT LIMITED TO, BANKING FEES, OVERDRAFT FEES, MOBILE PHONE OR OTHER WIRE LINE CHARGES, TECHNICIAN CHARGES, OR OTHER SIMILAR CHARGES; (iii) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (iv) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (v) FOR ANY DAMAGES OR LOSS DUE TO USER’S FAILURE TO BACK UP ANY EQUIPMENT OR ANY LACK OF OR BREACH OF SECURITY USER, OR ANY OTHER PARTY MAY EXPERIENCE OR BE EXPOSED TO WHILE USING THE SERVICE; (vi) FOR CUSTOMER”S USE OF THE SERVICE FOR OR IN CONNECTION WITH ANY HIGH-RISK OR UNLAWFUL USES, OR ANY USE THAT VIOLATES THIS AGREEMENT; OR (vii) FOR ANY MATTER BEYOND ACCESSPARKS REASONABLE CONTROL.

ACCESSPARKS WILL NOT BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICE, INCLUDING 911 DIALING, AT ANY TIME OR FROM TIME TO TIME, OR ANY INTERRUPTION OR DEGRADATION OF VOICE QUALITY THAT IS CAUSED BY ANY OF THE FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR OTHER THIRD PARTY; EQUIPMENT, NETWORK OR FACILITY FAILURE; EQUIPMENT, NETWORK OR FACILITY UPGRADE OR MODIFICATION; FORCE MAJEURE EVENTS SUCH AS (BUT NOT LIMITED TO) ACTS OF GOD, ACTS OF NATURE, STRIKES, FIRE, WAR, RIOT, ACTS OF TERRORISM AND GOVERNMENT ACTIONS; EQUIPMENT, NETWORK OR FACILITY SHORTAGE; EQUIPMENT OR FACILITY RELOCATION; SERVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER TO THE USER; OUTAGE OF, OR BLOCKING OF PORTS BY, USER’s ISP OR BROADBAND SERVICE PROVIDER OR OTHER IMPEDIMENT TO USAGE OF THE SERVICE CAUSED BY ANY THIRD PARTY; ANY ACT OR OMISSION BY USER OR ANY PERSON USING THE SERVICE OR DEVICE PROVIDED TO THE USER; OR ANY OTHER CAUSE THAT IS BEYOND ACCESSPARKS CONTROL, INCLUDING, WITHOUT LIMITATION, A FAILURE OF OR DEFECT IN ANY DEVICE, THE FAILURE OF AN INCOMING OR OUTGOING COMMUNICATION, THE INABILITY OF COMMUNICATIONS (INCLUDING, WITHOUT LIMITATION, 911 DIALING) TO BE CONNECTED OR COMPLETED, OR FORWARDED. ACCESSPARKSS AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED THE SERVICE CHARGES WITH RESPECT TO THE AFFECTED TIME PERIOD.

IN NO EVENT SHALL ACCESSPARKS AGGREGATE LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNTS PAID BY USER FOR THE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE INCIDENT GIVING ACCESSPARKS TO A CLAIM. NOTWITHSTANDING THE FOREGOING, SOME JURISDICTIONS MAY NOT ALLOW A LIMITATION ON LIABILITY FOR NEGLIGENCE THAT CAUSES DEATH OR PERSONAL INJURY, AND ACCESSPARKS LIMITS ITS LIABILITY IN SUCH JURISDICTIONS ONLY TO THE DEGREE ALLOWED BY APPLICABLE LAWS. EXCEPT FOR THE PAYMENT OF FEES DUE BY USER HEREUNDER, NEITHER PARTY WILL BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE UNDER THE AGREEMENT WHICH MIGHT BE DUE, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, TO ANY CONTINGENCY, DELAY, FAILURE, OR CAUSE OF ANY NATURE BEYOND THE REASONABLE CONTROL OF SUCH PARTY, INCLUDING WITHOUT LIMITATION ACTS OF NATURE, COURT OR GOVERNMENT.

  1. INDEMNIFICATION

USER agrees to release, defend, indemnify and hold ACCESSPARKS and its officers, directors, agents and employees harmless from any claims, losses, expenses and damages, including attorney’s fees, resulting from USER’s violation of any of the provisions of this Agreement or USER’s placement or transmission of any materials or content onto ACCESSPARKS servers or through its network, or from any and all use of USER’s account, with or without USER’s knowledge or consent, or from all claims, damages, fines, penalties, costs and expenses (including, without limitation, attorney fees) related to any action taken by ACCESSPARKS as part of ACCESSPARKS investigation of a suspected violation of this Agreement or as a result of its conclusion that a violation of this Agreement has occurred, or to USER’s use of or inability to use ACCESSPARKS Services, Equipment, bundled software, Internet or VoIP, including, without limitation, 911 dialing.

If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

 

  1. Arbitration

 

At ACCESSPARKS’ or your election, all disputes, claims, or controversies arising out of or relating to this Agreement or the Site that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, the arbitration will be held in California before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on damages set forth in this Agreement and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under this Agreement, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing party) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.

 

  1. MISCELLANEOUS
  2. Relationship – USER’s relationship with ACCESSPARKS is that of an independent contractor. USER is not an agent of ACCESSPARKS, and USER has no authority to obligate ACCESSPARKS by contract or otherwise.
  3. Third Party Beneficiaries – No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
  4. Survival – The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive
  5. Transferability and Assignment – USER shall not sell, transfer or assign this Agreement. USER’s account and right to use ACCESSPARKS Services and system are not transferable without ACCESSPARKS prior written consent. USER agrees to protect its password and account and to keep them secure from unauthorized USERs and use, and to be solely responsible for the protection and security of USER’s password and account information.
  6. Notices – Notifications of either party to this Agreement shall be effective upon receipt, or refusal of delivery, when deposited in the United States Mail, first class mail, certified or return receipt requested, postage prepaid, or when sent by a telefax, email, or a nationally recognized overnight delivery service, to ACCESSPARKS at 7660 Fay Ave #368, La Jolla, CA 920347 or to the address of Customer set forth on ACCESSPARKS records or such other address provided for such purposes.
  7. Proprietary Rights – ACCESSPARKS grants USER a non-exclusive, non-transferable license to use the products and Services provided hereunder. Title and property rights, including all intellectual property rights to such products and Services, is and shall remain with ACCESSPARKS, whether or not they are embedded in any product. USER recognizes that the products and Services used hereunder constitute valuable trade secrets of ACCESSPARKS and USER shall use their best efforts to protect and keep confidential any and all products and Services used by USER and shall not attempt to copy, examine, in any way alter, or reengineer, reverse engineer, tamper with, or otherwise misuse such products and Services.
  8. Jurisdiction/Venue/Choice of Law – USER agrees that exclusive jurisdiction for any claim or dispute with ACCESSPARKS or relating in any way to USER’s account or USER’s use of the Services resides in the courts of California and that this Agreement shall be governed by California law. USER expressly consents to the exercise of personal jurisdiction in the courts of California in connection with any such dispute. If an action at law or in equity is necessary to enforce or interpret the terms of this Agreement or compel performance thereof, the substantially prevailing party shall be entitled to reasonable attorney’s fees and costs in addition to any other relief to which such party may be entitled.
  9. Amendments – ACCESSPARKS may modify this Service Agreement from time to time, and USER’s continued use of the Service following notice of such modification shall be deemed to be USER’s acceptance of such modification. If USER does not agree to any modification of this Agreement, USER must immediately stop using the Service and notify ACCESSPARKS of USER’s desire to cancel the Service.
  10. Information – USER hereby acknowledges that ACCESSPARKS and its affiliates may retain and use any information, comments or ideas conveyed by USER relating to the Service (including any products and services made available on the Service). This information may be used to provide USER with better service. ACCESSPARKS may open and maintain a Customer file.
  11. Entire Agreement – This Agreement, including the Service Quote and any and all other documents and ACCESSPARKS policies referenced herein, constitutes the entire agreement between ACCESSPARKS and USER pertaining to the subject matter hereof. ACCESSPARKS failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
  12. Severability – In the event that it is determined by a court of competent jurisdiction as a part of a final non-appealed judgment that any provision of this Agreement (or part thereof) is void, invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of the Agreement will remain in full force and effect.
  13. ACCEPTANCE

By using and accepting Service from ACCESSPARKS, USER acknowledges that they have read and understand the terms and conditions of this Agreement and agrees to be legally bound by all of the terms and conditions of this Agreement and any associated documents, the same as if USER had physically signed this Agreement. This Agreement supersede all other written and oral communications or agreements with regard to the subject matter. Any waiver, modification or variation of any term or condition of this Agreement shall only be effective if in writing and/or in the form of a business contract signed by an authorized officer of ACCESSPARKS

By providing ACCESSPARKS with USER’s telephone number, cell phone number(s), or email address, USER gives consent for ACCESSPARKS, or any of ACCESSPARKS agents (including collection agents), to contact USER at these numbers or email address, or any other phone number or email address that is later acquired for USER, and, to leave live or pre-recorded messages, text messages, or emails to the extent that such are necessary to enforce any part of this Agreement. For greater efficiency, calls may be delivered by an auto-dialer.

 

BY USER’s USE AND ACCEPTANCE OF THE SERVICE, USER IS INDICATING THAT USER HAS READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.