Legal

Spark Pay Merchant Program User Agreement
Electronic Communications Disclosure Policy
(E-Consent Policy)

Last Update: February 28, 2013

This policy describes how Spark Pay delivers communications and disclosures to you in electronic format only. We may add to, change or delete any of these terms at any time by posting a revised version of the policy on our website (www.sparkpay.com), or sending you a notice by email or in writing. The revised version will be effective immediately as of its posting.

1. Electronic delivery of communications

By agreeing to our E-consent policy, you agree and consent to receive in electronic format all communications, agreements, documents, notices, billing statements and disclosures (collectively, "Communications") that we provide in connection with your Spark Pay account ("Account") and your use of our services. These Communications typically will not be provided in paper.  You also agree that your electronic signature on any agreements or documents on Spark Pay has the same effect as a physical signature.

We will provide these Communications to you by posting them on the Spark Pay website and/or by emailing them to you at the email address listed in your Spark Pay profile. You may obtain paper copies of any Communications by printing them out, or by contacting us and requesting that we mail paper copies to the address listed in your Account profile.

2. Electronic Communications requirements

In order to access and retain electronic Communications, you will need the following computer hardware and software:

We will notify you if there are any changes to the hardware or software needed to receive electronic Communications from Spark Pay. By giving your consent to our policy, you are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records. You may print or save a copy of any of these Communications for your records, as they may not be accessible online at a later date.

3. Withdrawal of consent

You may withdraw your consent to receive Communications in electronic format at no cost to you by emailing us at support@sparkpay.com.

If you fail to provide, or if you withdraw, your consent to receive Communications in electronic format, Spark Pay reserves the right to deny your application for an Account, restrict or deactivate your Account, or close your Account.

4. Requesting paper copies of electronic Communications

If after you consent to receive Communications electronically, you would like a paper copy of a Communication we previously sent you, you may request a copy within 180 days of the date we provided the Communication to you by contacting us as described above. We will send your paper copy to you by U.S. mail to the street address on file as your "Home Address" in your Account profile. We reserve the right to impose a fee for copies.

5. Updating your contact information

It is your responsibility to keep your email address up-to-date so that Spark Pay can communicate with you electronically. You understand and agree that if Spark Pay makes available or sends you an electronic Communication but you do not receive it because your email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, Spark Pay will be deemed to have provided the Communication to you.

Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add Spark Pay to your email address book so that you will be able to receive the Communications we send you.

You can update your email address or street address at any time by logging into the Spark Pay website and visiting the "Account" tab. If your email address becomes invalid such that electronic Communications sent to you by Spark Pay are returned, Spark Pay may deem your Account to be inactive, and you will not be able to transact any activity using your Spark Pay Account until we receive a valid, working email address from you.

Privacy Policy

When you visit the Spark Pay website, we collect your IP address and standard web log information, such as your browser type and the pages you accessed on our website.

When you create an account, we collect the following types of information from you:

  • Owner information - owner name, date of birth, address, phone, email, and other similar information.
  • Business Information - business name, business address, industry, Federal Tax ID number (if applicable), and other similar information.

When you use or access your Spark Pay account, we may collect additional information, including:

  • Bank account and payment card numbers to enable settlement, other relevant information about the financial institutions you use to conduct business.
  • The location and other details related to your account transactions, including information about your device.

Before permitting you to use our service, we may require you to provide additional information we can use to verify your identity or address or manage risk, such as your complete social security number or other information. We may also obtain information about you from third parties such as credit bureaus and identity verification services.

Finally, we may collect additional information from or about you in other ways not specifically described here. For example, we may collect information related to your contact with our customer support team or store results when you respond to a survey.

Cookies

When you access our website, we, or companies we hire to track how our website is used, may place small data files called "cookies" on your computer.

We send a "session cookie" to your computer when you log in to your account. This type of cookie helps us to recognize you if you visit multiple pages on our site during the same session, so that we don't need to ask you for your password on each page. Once you log out or close your browser, this cookie expires and no longer has any effect. If you choose, you can set your website browser to inform you when cookies are sent or you may choose not to accept cookies. Your decision not to accept cookies could limit access to some of the services and offers that are available on our website. For example, your device may not be recognized when you visit our website. You also may not receive advertising or other offers from us that may be of interest to you.

Spark Pay or Capital One may contract with advertising companies to advertise our products and services on websites and mobile apps not affiliated with us. We may use certain online or mobile activity data and information provided by you to these third party websites to select which of our advertisements or offers may appeal to you, display them to you and monitor your responses.

Spark Pay does not engage in the collection of personally identifiable information about you as you move across different web sites or online services over time and our website does not respond to browser "do not track" signals. Certain Spark Pay or Capital One partners, however, may use unique cookies to collect certain mobile or online activity data on our website or mobile applications to advertise on third party websites Capital One products and services that may be of interest to you. Our partners are subject to their own privacy policies.

Personal Information

Throughout this policy, we use the term "personal information" to describe information that can be associated with a specific person and can be used to identify that person. We do not consider personal information to include information that has been anonymized so that it does not identify a specific user.

We store and process your personal information on our computers in the US, and we protect it by maintaining physical, electronic and procedural safeguards that both meet and exceed applicable US federal and state regulations. We use computer safeguards such as firewalls and data encryption, we enforce physical access controls to our buildings and files, and we authorize access to personal information only for those employees who require it to fulfill their job responsibilities.

We do not sell or rent your personal information with anyone for promotional or marketing purposes. Our primary purpose in collecting personal information is to provide you with a safe, smooth, efficient, and customized experience. We may use your personal information to:

  • Provide the services and customer support you request;
  • Process transactions and send notices about your transactions;
  • Resolve disputes and troubleshoot problems;
  • Prevent potentially prohibited or illegal activities;
  • Customize, measure, and improve our services and the content and layout of our website;
  • Compare information for accuracy and verify it with third parties.

Sharing Information

We may share your personal information with:

  • Service providers under contract who help with parts of our business operations (fraud prevention, bill collection, marketing, technology services). Our contracts dictate that these service providers only use your information in connection with the services they perform for us and not for their own benefit.
  • Financial institutions that allow us to process your transactions that we partner with to jointly create and offer products or services.
  • Credit bureaus to report outstanding negative balance accounts, as allowed by law.
  • Companies that we plan to merge with or be acquired by. (Should such a combination occur, we will require that the new combined entity follow this privacy policy with respect to your personal information. If your personal information could be used contrary to this policy, you will receive prior notice.)
  • Law enforcement, government officials, or other third parties when:
    • we are compelled to do so by a subpoena, court order or similar legal procedure
    • we need to do so to comply with law
    • we believe in good faith that the disclosure of personal information is necessary to prevent physical harm or financial loss, to report suspected illegal activity, or to investigate violations of our User Agreement.
  • Other third parties with your consent or direction to do so.

Links to Other Web Sites

Spark Pay is not responsible for any practices employed by websites linked to or from our website, nor the information or content contained therein. Please remember that when you use a link to go from our website to another website, this Privacy Policy is no longer in effect. Your browsing and interaction on any other website, including those that have a link on our website, is subject to that website's own rules and policies. Please read over those rules and policies before proceeding.

Effective Date: March 7, 2013

Fees And Disclosures
TERMS OF SERVICE OF THE SPARK PAY ONLINE STORE

This Spark Pay Online Store Terms of Service Agreement ("Agreement") is entered into as of the date on which the Customer first uses the Spark Pay Online Store Services (as defined below) ("Effective Date") by and between Spark Pay ("Spark Pay ") and customer ("Customer").

R E C I T A L S

WHEREAS, Spark Pay is a service provider that offers access to, and use of, certain applications including its fully integrated set of web-based modules ("Spark Pay Online Store Services") and implementation support to initiate such access and use.

WHEREAS, Customer wants to retain Spark Pay to allow Customer to access and use the Spark Pay Online Store Services under the terms and conditions set forth in this Agreement. NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, Customer and Spark Pay agree to the foregoing and as follows:

ARTICLE 1-GENERAL

1.1 Overview of Agreement. This Agreement represents the terms and conditions under which Spark Pay shall provide Customer access to and use of the Spark Pay Online Store Services package or packages subscribed to ("Spark Pay Online Store Services Package"), which may be amended from time to time to reflect additional or amended Spark Pay Online Store Services ordered by Customer. Spark Pay Online Store Services shall be provided to Customer via the Internet's world wide web. Additional services and/or deliverables may be procured consistent with the terms of this Agreement. Any attempt to alter or amend the terms and conditions contained in this Agreement through conflicting or inconsistent terms in any other document shall be void and of no force and effect.

ARTICLE 2-SPARK PAY ONLINE STORE SERVICES

2.1 Equipment. Customer will be responsible for procuring, at Customer's sole expense, all equipment or other software ( including licenses necessary to use currently-supported versions thereof) , if any, required to use Spark Pay Online Store Services. For such third party hardware or software, Customer shall only receive the manufacturer's warranty, if any, and shall receive no warranties from Licensor for any such third party hardware or software.

2.2 Access Rights. During the term of this Agreement, Customer will have a limited, revocable, non-transferable and non-exclusive license for Customer's employees ("Authorized Users") to use the Spark Pay Online Store Services Package and related documentation solely for Customer's business purposes consistent with the terms and conditions of this Agreement. Spark Pay will issue to one Authorized User ("Spark Pay Administrator") an individual logon identifier and password ("Administrator's Logon") for purposes of administering the Spark Pay Online Store Services Package. Customer acknowledges and agrees that only its Spark Pay Administrator shall be authorized to bind Customer in connection with any service provided to Customer under this Agreement. Using Administrator's Logon, the Spark Pay Administrator shall assign each remaining Authorized User a unique logon identifier and password and assign and manage the business rules that control each such Authorized User's access to the Spark Pay Online Store Services Package. Customer shall use its reasonable efforts to see that each Authorized User will: (a) be responsible for the security and/or use of his or her logon identifier; (b) not disclose such logon identifier to any person or entity; (c) not permit any other person or entity to use his or her logon identifier; (d) use the Spark Pay Online Store Services Package consistent with the assigned business rules; and (e) use the Spark Pay Online Store Services Package in accordance with the terms and conditions of this Agreement. Customer will be responsible for: (f) advising each Authorized User of his or her obligations under this Agreement and of the license restrictions set forth in this Agreement; and (g) any and all costs and expenses incurred through the authorized use of Customer's Logon. Spark Pay reserves the right to deny, suspend or revoke access to the Spark Pay Online Store Services, in whole or in part, if Spark Pay believes Customer and/or its Authorized Users are in breach of this Agreement or are otherwise using or accessing the Spark Pay Online Store Services inconsistent with the terms and conditions of this Agreement.

2.3 Restrictions. The customer is expected to be familiar with and to practice good Internet etiquette ("Netiquette"). The customer will comply with the rules appropriate to any network to which Spark Pay may provide access. The customer should not post, transmit, or permit Internet access to information the customer desires to keep confidential. The customer is not permitted to post any material that is illegal, libelous, tortuous, indecently depicts children, is of a profane, sexual, pornographic, or obscene nature, or is likely to result in retaliation against Spark Pay by offended users, or any material that Spark Pay determines in its sole discretion to be inappropriate. This includes advertising services or sites via IRC or USENET in clear violation of the policies of the IRC channel or USENET group.

Customer agrees that Customer and its Authorized Users will not: (a) sell, lease, license or sublicense the Spark Pay Online Store Services; (b) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the Spark Pay Online Store Services in any way for any reason; (c) provide, disclose, divulge or make available to, or permit use of the Spark Pay Online Store Services by, any third party; (d) copy or reproduce all or any part of the Spark Pay Online Store Services (except as expressly provided for herein); (e) interfere, or attempt to interfere, with the Spark Pay Online Store Services in any way; (f) engage in spamming, mail bombing, spoofing or any other fraudulent, illegal or unauthorized use of the Spark Pay Online Store Services; (g) knowingly introduce into or transmit through the Spark Pay Online Store Services any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; (h) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the Spark Pay Online Store Services; or (i) engage in or allow any action involving the Spark Pay Online Store Services that is inconsistent with the terms and conditions of this Agreement.

2.4 Non-Exclusivity.The parties acknowledge and agree that Spark Pay is providing access to and use of the Spark Pay Online Store Services to multiple customers and that such services are non-exclusive.

2.5 Availability. Spark Pay shall use commercially reasonable efforts to keep the Spark Pay Online Store Services Package available on a 24 hour a day, 7 day a week basis, subject to scheduled downtime for maintenance purposes, unscheduled maintenance and systems outages. The parties acknowledge that since the Internet is neither owned nor controlled by any one entity, Spark Pay makes no guarantees that any given user will be able to access the Spark Pay Online Store Services Package at any given time, and Spark Pay shall not be liable to Customer for failure of accessibility to the Spark Pay Online Store Services Package.

2.6 Audit Rights. If a customer has purchased the Spark Pay Online Store software or has obtained FTP access to the Spark Pay software, Spark Pay shall have the right, during the term of this Agreement and for a period of six (6) months thereafter, upon reasonable notice and at reasonable times, to access Customer's location and files to inspect Customer's or your agent's use of the Spark Pay Online Store systems, as well as computers and equipment used in connection therewith. Customer shall cooperate fully with any such audit or inspection. In the event that any audit shows any misuse, violation or breach of the Spark Pay Online Store Services or this Agreement, Spark Pay shall be entitled to pursue any remedies available to it under this Agreement or otherwise at law or in equity, and to or suspend, revoke, or terminate Spark Pay Online Store Services if you are still a Spark Pay Online Store Customer.

ARTICLE 3-FEES; PAYMENT TERMS

3.1 Application and Use Fee. Customer shall pay all amounts due under any invoice to Spark Pay within thirty (30) calendar days of due date.

3.2 Late Payments. If Customer fails to pay any fees by the applicable due date, Spark Pay will have the right to: (a) assess late charges in an amount equal to the greater of five percent (5%) per month or the maximum allowable under applicable law; and/or (b) suspend access to any or all of the Spark Pay Online Store Services and/or performance of the services provided by Spark Pay hereunder and/or terminate this Agreement. Any such suspension or termination will not relieve Customer from paying any outstanding fees plus interest and late charges. Customer will be responsible for any costs associated with collecting such fees including, without limitation, legal costs, attorneys' fees, court costs and collection agency fees.

3.3 Taxes. Customer will pay or reimburse Spark Pay for all sales, use, transfer, privilege, excise and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by Spark Pay under this Agreement, excluding, however, income taxes or gross receipts taxes which may be levied against Spark Pay. Such taxes may be reflected on Customer invoices.

3.4 Credit Card Charges Authorized. You hereby authorize the Spark Pay to charge Your credit card to pay for the ongoing Subscription Fees to Spark Pay at the then current Subscription Rate. You further authorize the Company to charge Your credit card for any and all purchases of products, services available through, at, in or on, or provided by, Spark Pay. You agree to be personally liable for all charges incurred by You during or through the use of Spark Pay. Your liability for such charges shall continue after termination of Your membership.

3.5 Automatic Credit Card or Debit Card Debit. All charges to Your credit card or debit card for the Spark Pay Online Store hosting and licensing services, under the terms and conditions of this Agreement, will be made in advance by automatic credit card or debit card debit and you hereby authorize the Company and its agents to process such transactions on Your behalf.

3.6 Non-Refundable Charges. All charges to your credit card are nonrefundable. In order to avoid such charges, you must cancel your Spark Pay Online Store hosting and licensing services.

ARTICLE 4-LIMITED WARRANTIES

4.1 Customer Warranty. Customer represents and warrants to Spark Pay that: (a) Customer has the authority to enter into this Agreement and perform its obligations under this Agreement; (b) Customer and its Authorized Users will only use the Spark Pay Online Store Services for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party; and (c) Customer warrants that it is not located in a country where export or re-export of the contents of information received via the Internet is prohibited. Should Customer receive notice of any claim regarding the Spark Pay Online Store Services, Customer shall promptly provide Spark Pay with a written notice of such claim.

4.2 Spark Pay Warranty. Spark Pay warrants that: (a) Spark Pay has the authority to enter into this Agreement and perform its obligations under this Agreement; and (b) Spark Pay will perform the services required under this Agreement in a professional and workmanlike manner.

4.3 Disclaimer. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPARK PAY MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING OR RELATING TO ANY OF THE SERVICES AND/OR ACCESS TO OR USE OF THE SPARK PAY SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. SPARK PAY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

ARTICLE 5-LIMITATION OF LIABILITY

SPARK PAY'S LIABILITY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES OF ANY KIND WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID BY CUSTOMER TO SPARK PAY THROUGH THE DATE SPARK PAY'S LIABILITY TO CUSTOMER ACCRUES. IN NO EVENT SHALL SPARK PAY BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS.

ARTICLE 6-INDEMNIFICATION

Customer agrees to indemnify, defend (at Spark Pay's sole option and at Customer's sole expense) and hold harmless Spark Pay, its managers, directors, officers, employees, independent contractors and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim arising out of or relating to Customer's use of and/or access to the Spark Pay Online Store Services or services provided hereunder, including but not limited to any claims arising out of the sale or offer for sale of any illegal, infringing, counterfeit products or services or any other misuse of the Spark Pay Online Store Services by Customer or its customers. Customer specifically acknowledges that Spark Pay shall not be liable to Customer for losses, if any, incurred as a result of fraudulent or unauthorized use or misuse of Spark Pay Online Store Services.

ARTICLE 7-CONFIDENTIAL INFORMATION

"Confidential Information" will include the terms of this Agreement, any software provided by Spark Pay under this Agreement, the logon identifiers and/or passwords provided to Customer and each Authorized User, the prices and fees charged under this Agreement, any other materials marked confidential by Customer or Spark Pay and any other information conveyed under this Agreement that is identified in writing as confidential at the time of its conveyance. Each party acknowledges and agrees that: (a) the Confidential Information constitutes valuable trade secrets of the party owning such Confidential Information; (b) it will use Confidential Information solely in accordance with the provisions of this Agreement; and (c) it will not disclose, or permit to be disclosed, the Confidential Information of the other party to any third party without the disclosing party's prior written consent. Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party's Confidential Information including, at a minimum, those precautions taken by a party to protect its own Confidential Information, which will in no event be less than a reasonable degree of care. Confidential Information will not include information that is: (d) publicly available; (e) already in the other party's possession and not subject to a confidentiality obligation; (f) obtained by the other party from any source without any obligation of confidentiality; (g) independently developed by the other party without reference to the disclosing party's Confidential Information; or (h) required to be disclosed by order of a court or other governmental entity; provided no less than ten (10) days written notice is given to the party owning such Confidential Information so that such party may obtain a protective order or other equitable relief.

ARTICLE 8-PROPRIETARY RIGHTS

No right (except for the license granted in Section 2.2), title or interest of intellectual property or other proprietary rights in and to the Spark Pay Online Store Services and/or other products or services made available under this Agreement is transferred to Customer hereunder. Spark Pay and its Third-Party Licensors retain all right, title and interests, including, without limitation, all copyright, trade secret, intellectual property and other proprietary rights in and to the Spark Pay Online Store Services and/or other products or services provided under this Agreement. Customer will retain all right, title and interest to the documents created by Customer using the Spark Pay Online Store Services, subject to any rights of Spark Pay in underlying works from which such documents were derived.

ARTICLE 9-TERM AND TERMINATION

9.1 Cancellation Procedure. Customer is responsible for all Spark Pay Online Store Services charges up to and including the day client cancels Spark Pay Online Store Services. To cancel the Spark Pay Online Store Services the customer must call our toll free number (listed on website) and ask for the cancellation department. A cancellation representative will verify that the person calling is the owner of the site and will issue a cancellation number to the customer. The cancellation number will serve as proof that the site and service has been cancelled. The customer is responsible for all outstanding charges up to the time the cancellation number is issued. For security purposes, e-mail notice will be disregarded.

Cancellation of store front software does not release client from any long term contracts that client might have signed with Spark Pay. If client has pre-paid for a year of service, cancellation does not result in a refund.

9.2 Term. This Agreement will commence as of the Effective Date and shall continue thereafter on a month to month basis unless terminated pursuant to Section 9.2 or 9.3, OR UPON TELEPHONE NOTICE TO THE SPARK PAY BILLING DEPARTMENT. ANY EMAIL NOTICE WILL BE DISREGARDED. WRITTEN NOTICE MAY BE MAILED DIRECTLY TO SPARK PAY AT: 2615 Calder, Suite 140 Beaumont, TX 77702

9.3 Termination by Spark Pay. Spark Pay shall have the right, upon written notice to Customer, to terminate this Agreement if: (a) Customer fails to timely pay Spark Pay any amount due to Spark Pay under this Agreement; (b) Customer materially breaches any term or condition this Agreement, provided such breach is not cured by Customer within thirty (30) calendar days following Spark Pay's notice to Customer of such breach; or (c) Customer (i) terminates or suspends its business activities; (ii) becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.

9.4 Termination by Customer. Customer will have the right, upon written notice to Spark Pay, to terminate this Agreement if Spark Pay is in material breach of this Agreement and Spark Pay fails to remedy such material breach within thirty (30) calendar days of its receipt of such written notice.

9.5 Obligations upon Termination or Expiration and Non-Renewal. Upon the expiration and non-renewal or termination of this Agreement for any reason: (a) Customer's access to, and use of, the Spark Pay Online Store Services will terminate; (b) Customer will return to Spark Pay any and all Spark Pay Online Store Services, equipment, software, documentation or other deliverables provided to Customer by Spark Pay including any copies thereof held by Customer; (c) Spark Pay will deliver to Customer all Customer documents and other materials stored by Customer on the Spark Pay Online Store network; and (d) each party shall return any and all Confidential Information in its possession to the party that disclosed such Confidential Information and provide written verification of same.

9.6 Survival. Any provisions of this Agreement that by their nature should survive termination of this Agreement will survive termination of this Agreement, including but not limited to Articles 6, 7, and 8.

ARTICLE 10-MISCELLANEOUS

10.1 Notices. Any written notice required or permitted to be delivered pursuant to this Agreement will be in writing and will be deemed delivered: (a) upon delivery if delivered in person; (b) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid; (c) upon transmission if sent via telecopier, with a confirmation copy sent via overnight mail; (d) one (1) business day after deposit with a national overnight courier, in each case addressed, in the case of Customer, the address listed in Spark Pay's records, or in the case of Spark Pay, to 2615 Calder Suite 140, Beaumont, TX 77702 (or to such other address as may be specified upon notice) or (e) notwithstanding anything to the contrary contained anywhere in this Terms of Service Agreement, in the case of any such written notice provided by Spark Pay to Customer, including any written notice relating to any updates to this Terms of Service Agreement, on the day of transmission if sent by electronic mail ("e-mail") to the current e-mail address for such Customer, as provided by such Customer to Spark Pay.

10.2 Assignment. Customer will not assign or otherwise transfer this Agreement, in whole or in part, nor delegate or subcontract any of its rights or obligations hereunder, without Spark Pay's prior written consent, which consent may be withheld, delayed or conditioned in Spark Pay's discretion. Spark Pay will have the right to assign this Agreement, in whole or in part, to a third party at any time upon written notice to Customer.

10.3 Force Majeure. Neither party shall have any liability to the other or to third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control including, without limitation, acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances or terrorism, or power, communications, satellite or network failures.

10.4 Waiver. Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by an authorized representative of Spark Pay and Customer. The parties expressly disclaim the right to claim the enforceability or effectiveness of: (a) any amendments to this Agreement that are not executed by an authorized representative of Spark Pay and Customer; (b) any oral modifications to this Agreement; and (c) any other amendments that are based on course of dealing, waiver, reliance, estoppel or similar legal theory. The parties expressly disclaim the right to enforce any rule of law that is contrary to the terms of this Section. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this Agreement will not be deemed to be a waiver or modification by such party of any of its rights under this Agreement.

10.5 Severability. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement, unless Spark Pay in good faith deems the unenforceable provision to be essential, in which case Spark Pay will have the right to terminate this Agreement in accordance with Section 10.2.

10.6 Public Announcements. Customer grants Spark Pay the right to use Customer's name in press releases, product brochures and financial reports indicating that Customer is a customer of Spark Pay.

10.7 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.

10.8 Third Party Beneficiaries. Customer acknowledges that some Spark Pay Online Store Services may be provided by Third Party Licensors. Third Party Licensors are third party beneficiaries to this Agreement, and there are no other third party beneficiaries to this Agreement.

10.9 Governing Law; Jurisdiction; Dispute Resolution. This Agreement will be interpreted and construed in accordance with the laws of the State of Texas, without regard to conflict of law principles. All disputes arising out of this Agreement shall be brought only in the district and federal courts located in or for Beaumont, Texas. EACH PARTY CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, LOCATED IN OR FOR Beaumont, Texas. Notwithstanding the foregoing, the parties agree that if any dispute arises between them relating to this Agreement, they will first participate in non-binding mediation prior to the commencement of any litigation or other proceeding. If a party intends to invoke this mediation provision, such party shall notify the other party in writing, by certified and regular mail, of such party's desire to convene mediation. The parties shall then have thirty (30) days in which to appoint a mutually acceptable mediator, and if the parties are unable to agree on a mediator, each party shall select a mediator and the mediators so chosen shall appoint a third mediator who shall preside over the proceeding. The mediation shall be conducted in Beaumont, Texas. The parties shall participate in good faith in any mediation proceeding until the mediator determines that no further progress can be made in resolving the dispute. The parties shall each bear an equal portion of the mediator's fees. Each party may be represented by counsel during the mediation.

10.10 Non-solicitation. Customer agrees that, during the term of the relationship with Spark Pay and for a period of two years thereafter, Customer shall not intentionally, and shall not intentionally permit any of the Customer's affiliates to directly or indirectly, personally or through others, encourage, induce, attempt to induce, solicit or attempt to solicit any employee of Spark Pay to leave his or her employment with Spark Pay.

10.11 System And Network Security. Violations of system or network security are prohibited, and may result in criminal and civil liability. Spark Pay may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:

Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.

Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network.

Interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks. Forging of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting.

Violators of the policy are responsible, without limitations, for the cost of labor to clean up and correct any damage done to the operation of the network and business operations supported by the network, and to respond to complaints incurred by Spark Pay. Such labor is categorized as emergency security breach recovery and is currently charged at $250 USD per hour required.

Spark Pay is concerned with the privacy of online communications and web sites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, Spark Pay urges its Customers to assume that all of their online communications are insecure. Spark Pay cannot take responsibility for the security of information transmitted over Spark Pay's facilities.

Spark Pay maintains credit card data security service provider requirements to the extent Spark Pay possesses or otherwise stores, processes, or transmits cardholder data on behalf of the customer, or to the extent that Spark Pay could impact the security of the customer’s cardholder data environment.

10.12 Copyright Infringement - Software Piracy Policy. The Spark Pay Online Store Services may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or other intellectual property rights.

Making unauthorized copies of software is a violation of the law, no matter how many copies you are making. If you copy, distribute or install the software in ways that the license does not allow, you are violating federal copyright law. If caught with pirated software, you or your company may be liable under both civil and criminal law, and you may be liable for up to $150,000 per infringement.

Spark Pay will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.

10.13 Network Responsibility. Customers have a responsibility to use the Spark Pay Online Store Services responsibly. This includes respecting the other Customers of the Spark Pay Online Store. Spark Pay reserves the right to suspend and or cancel service with any Customer who uses the Spark Pay Online Store Service in such a way that adversely affects other Spark Pay Online Store Customers. This includes but is not limited to:

Attacking or attempting to gain unauthorized access to servers and services that belong to Spark Pay or its Customers (i.e. computer hacking), and/or Participating in behavior, which result in reprisals that adversely effect the Spark Pay Online Store Services or other Customers' access to the Spark Pay Online Store Services. Spark Pay will react strongly to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include, but are not limited to, "Internet Scanning" (tricking other people into releasing their passwords), password robbery, security hole scanning, port scanning, etc. Any unauthorized use of accounts or computers by a Spark Pay Online Store Customer, whether or not the attacked account or computer belongs to Spark Pay, will result in severe action taken against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, depending on the seriousness of the attack. Any attempt to undermine or cause harm to a server, or Customer, of Spark Pay is strictly prohibited.

Violations of this policy may be reported directly to the FBI's Infrastructure Protection & Computer Intrusion Squad at http://www.fbi.gov/hq.htm . Spark Pay will cooperate fully with any civil and/or criminal litigation arising from the violation of this policy.

10.14 Lawful Purpose. All services may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any applicable law, regulation, or AUP is prohibited. This includes, but is not limited to: copyrighted material or material protected by trade secret and other statute or dissemination of harmful or fraudulent content.

Using any of the Spark Pay Online Store Services or products for the purpose of participating in any activity dealing with subject matters that are prohibited under applicable law is prohibited.

Any conduct that constitutes harassment, fraud, stalking, abuse, or a violation of federal export restriction in connection with use of Spark Pay Online Store Services or products is prohibited. Using the Spark Pay network to solicit the performance of any illegal activity is also prohibited, even if the activity itself is not performed. In addition, knowingly receiving or downloading a file that cannot be legally distributed, even without the act of distribution, is prohibited.

Servers hosted within the Spark Pay network are open to the public. You are solely responsible for your usage of the Spark Pay network and servers and any statement you make on servers hosted within the Spark Pay network may be deemed "publication" of the information entered. Acknowledging the foregoing, you specifically agree not to use our service in any manner that is illegal or libelous.

10.15 Child Pornography on the Internet. Spark Pay will cooperate fully with any criminal investigation into a Customer's violation of the Child Protection Act of 1984 concerning child pornography. Customers are ultimately responsible for the actions of their clients over the Spark Pay network, and will be liable for illegal material posted by their clients.

According to the Child Protection Act, child pornography includes photographs, films, video or any other type of visual presentation that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years.

Violations of the Child Protection Act may be reported to the U.S. Customs Agency at 1-800-BEALERT

10.16 Unsolicited Commercial Email/Unsolicited Bulk Email (UCE/UBE). Unsolicited commercial email (UCE) is defined by Spark Pay as any electronic communication (e-mail, ICQ, IRC, Instant Messenger, etc…) sent for purposes of distributing commercial information of any kind, soliciting the purchase or sale of products or services or soliciting any transfer of funds to a recipient who has not agreed to receive such communication.

Unsolicited bulk e-mail (UBE) is defined by Spark Pay as any electronic communication (e-mail, ICQ, IRC, Instant Messenger, etc…) to multiple recipients who have not agreed to receive such communication.

Use of the Spark Pay network, servers or services to transmit any unsolicited commercial or unsolicited bulk-e-mail is expressly prohibited, as is hosting web sites or services on a server, which are advertised in any UCE/UBE. Spark Pay also prohibits the sending of any fraudulent, malicious, harassing, false or misleading electronic communications, including, without limitation, chain letters, pyramid schemes, or e-mails with forged headers. Posting off-topic advertisements to Usenet discussion groups, ICQ, Instant Messenger, etc., is also expressly prohibited.

Additionally, Spark Pay Online Store Customers are expressly prohibited from sending any UCE/UBE from our network or any email from another network that in any way references a document, image, or Web site that resides on the Spark Pay network or in one of our data centers. Violations of this type may result in the termination of the offending Spark Pay Online Store account. Spark Pay Online Store Customers are ultimately responsible for any violations of the AUP by their clients, and any violation of the AUP by a client of a Spark Pay Online Store Customer shall be deemed a violation of the AUP by such Spark Pay Online Store Customer.

Customers whose actions directly or indirectly result in Spark Pay IP space being listed in any of the various abuse databases may be subject to having the offending domain(s), server(s), or user(s) immediately removed from our service. In addition, if Spark Pay in its sole discretion determines that a customer is in violation of our AUP, Spark Pay may, at its sole discretion, restrict, suspend or terminate a customer's account. Spark Pay will, in most cases, attempt to contact a customer prior to suspension or termination of a server(s), but can not guarantee prior notification.

Any server suspended or terminated for AUP violations will be reconnected only after the customer agrees to cease all activities that violate the Spark Pay AUP and pays all applicable reconnect fees and related charges. Any server suspended a second time for AUP violations WILL be immediately and permanently removed from our network. Customers that Spark Pay determines in its sole discretion to be in violation of the Spark Pay AUP may be subject to additional fees or fines including, without limitation, any applicable reconnect fees.

10.17 Guidelines for Permission-Based Email. While Spark Pay prohibits the use of its systems or network to send unsolicited email (UCE/UBE) as described above, customers may send permission-based email marketing, subject to the guidelines provided herein. Permission-based marketing is defined as electronic marketing that an end-user agrees to receive. This is often referred to as 'opt-in' electronic marketing. All recipient information for such marketing conducted by Spark Pay Online Store Customers must be documented and cataloged by the Customer. This information is to include date, time, originating IP and the location from which the email address or other recipient information was obtained. Additionally, a customer must at a minimum comply with the following guidelines, and any additional guidelines established by Spark Pay from time to time in its sole discretion, to engage in permission-based email marketing without violating the AUP:

1. All commercial or bulk email originating from a Spark Pay Online Store Customer on the Spark Pay network must have a working unsubscribe link. The customer must honor all requests to unsubscribe within 72 hours. Additionally, there must be text in the email stating that while all requests to unsubscribe are honored, it may take up to 72 hours to process.

2. All commercial or bulk email originating from a Spark Pay Online Store Customer on the Spark Pay network must clearly list the email address to which the email was originally sent (the intended recipient's email address) in the body of the message OR in the 'TO:' line of the email.

3. All Spark Pay Online Store Customers sending commercial or bulk email must have a working abuse@domain.com address from EVERY domain associated with the email campaign. Additionally, the abuse@ address must be prominently posted on the front page of the associated web site. Customers must regularly answer any messages sent to the abuse@ address.

4. All Spark Pay Online Store Customers sending commercial or bulk email must register the abuse@ address for every domain associated with commercial email they send at abuse.net.

5. All Spark Pay Online Store Customers sending commercial or bulk email must have a Privacy Policy/AUP posted for each domain associated with the email campaign.

6. All commercial or bulk email sent must include information about where the email address was obtained in the body of the email. For example:

"You opted-in to receive this email promotion from our web site or from one of our partner sites."

7. All Spark Pay Online Store Customers sending commercial or bulk email must answer all complainants' requests for details regarding where the complainant "opted-in" to receive electronic marketing within 72 hours. This information must include the date, time, originating IP and the location from which the email address or other recipient information was obtained. Instructions on how to get this information must be stated clearly in the body of the email. For example, a statement similar to the following must be present in the body of the email: "If you would like to learn more about how we received your email address, please contact us at abuse@domain.com."

Requests for "opt-in" information must be responded to within 72 hours.

8. All Spark Pay Online Store Customers sending commercial or bulk email must be able to track and identify anonymous complainants. There are several software packages (such as RoboMail) that can help accomplish this.

9. If a Spark Pay Online Store Customer is using an affiliate program to send commercial or bulk email through the Spark Pay network and the affiliate program becomes subject to repeated abuse by users, the customer must discontinue use of the affiliate program or be subject to immediate suspension or cancellation.

10. All Customers of the Spark Pay Online Store are required to have up-to-date and valid contact information on file with their registrar for any domain hosted on the Spark Pay network.

Disclaimer

Spark Pay reserves the right to test portions of any customer's email list in response to complaints and request opt-in information from a random sample of that list at any time.

Spark Pay reserves the right to determine in its sole discretion the validity of any customer's email list. Any list Spark Pay determines in its sole discretion to be in violation of this AUP must be removed immediately or the customer will be subject to immediate suspension or termination. Repeated violations will result in permanent suspension.

Spark Pay reserves the right to test and otherwise monitor customer's compliance with the above guidelines and requirements at any time during the customer's term of service at Spark Pay.

If Spark Pay determines in its sole discretion that the customer is not in strict compliance with the guidelines for permission-based e-mail marketing, then Spark Pay may immediately suspend or terminate the customer's service.

10.18 Suspension. If Spark Pay in its sole discretion determines that a Customer's server has become the source or target of any violation concerning the Spark Pay Acceptable Use Policy (AUP), Spark Pay reserves the right to suspend network access to that server. While Spark Pay will attempt to contact the Customer before suspending network access to the customer's server(s), prior notification to the Customer is not assured. In certain cases, Spark Pay will contact law enforcement and other agencies regarding these activities. Customers are responsible for all charges, as well as any fees relating to the investigation, suspension, administration and handling of their servers before, during and after the suspension period.

10.19 Headings. The headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.

10.20 Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.

Trademark and Copyright Legal Notices: Spark Pay, the Spark Pay logo are registered trademarks and/or registered service marks of Capital One, or one of its subsidiaries, in the United States and other countries.

Other brands or product names are trademarks or service marks of their respective owners, should be treated as such, and may be registered in various jurisdictions.

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