TERMS OF SERVICE
By using our Services, whether as a guest, as a registered user, or otherwise, you agree that these Terms of Service will govern your relationship with Powerspike. If you do not completely agree to these Terms of Service then you must not use any of our Services.
“Account” means, any vided by Powerspike that you create to access certain Services.
“Activated” means when any Hired Content Creator has created and distributed Content on behalf of the Brand.
“Brand” means users of the Services who wish to connect with Content Creators to contract for the completion of a Campaign.
“Brand Assets” means, any and all data that a Brand uploads, transmits, or creates through the Services, including without limitation all Brand logos, names, trademarks (whether registered with the USPTO or otherwise) sound recording, images, audiovisual works, and any other content contributed by Brands for use of the Content Creators in connection with a Campaign.
“Budget” means the maximum amount of Fees that a Brand chooses to spend on the Hired Content Creator(s) as part of the Campaign during the Campaign Period. Budgets will automatically refresh each subsequent Campaign Period, at the same amount, unless otherwise modified by Brand.
“Campaign” means an agreement between a Brand and a Content Creator, made via the Services, whereby Content Creator performs mutually agreed upon and quantifiable tasks for a Brand in exchange for payment.
“Campaign Manager” means the Powerspike representative that acts as a liaison between Brands and Content Creators.
“Campaign Period” means a period of thirty (30) days beginning on the first day Brand initiates a Campaign on the Services. Each Campaign Period will subsequently recur, under the same terms and conditions, for an additional thirty (30) days unless modified by Brand.
“Content” means any videos, materials, images, narratives, works of authorship, or any other content including, without limitation, any livestreams on Twitch, YouTube, Mixer, or other streaming site and any social media posts on Twitter, Instagram, SnapChat, or any other platform now known or hereafter devised, that Content Creator(s) create in connection with a Campaign.
“Content Creator” means users of the Services who wish to connect with Brands to contract for the completion of a Campaign.
“Contested Performance” means any disagreement, controversy, or dispute related to a Content Creator’s or Brand’s performance of duties in a Campaign.
“Dispute” means, any controversy related to this agreement, including without limitation claims arising out of or relating to any aspect of the relationship between you and Powerspike, claims that arose before this agreement, and claims that may arise after the termination of this agreement; however, this does not include claims related to or arising from the enforcement or protection of Intellectual Property Rights, and is subject to any applicable statutory consumer rights laws in your local jurisdiction.
“Fees” means the Fees Brand will pay in exchange for an Activated Content Creator’s creation and distribution of Content.
“Hire” or “Hired” means when Powerspike assigns or has assigned Brand a Content Creator(s), but the Content Creator has yet to create any Content on the Brand’s behalf.
“Installment” means the Fees that Powerspike will charge to a Brand’s payment method when an Activated Content Creator has performed services equal to the value of the Installment. Installment thresholds are determined by Powerspike in their sole discretion.
“Intellectual Property Rights” means, any and all right, title, and interest of every kind whatsoever, whether now known or unknown, in and to patents, trade secret rights, copyrights, trademarks, service marks, trade dress and similar rights of any type under the laws of any governmental authority, including, without limitation, all applications and registrations relating to the foregoing.
“Notice” means, a delivered writing by e-mail, courier, or by Federal Express delivery to the other party at their respective address, and will be effective upon receipt.
“PowerSpike” means, PowerSpike, Inc., located at 850 New Burton Road, Suite 201, Dover, Delaware 19904, Kent County. References to “Us,” “We,” or “Our” means PowerSpike, including any and all subsidiaries parent companies, joint ventures, and other corporate entities under common ownership and/or any of their agents, consultants, employees, officers, and directors. PowerSpike does not include PowerSpike Affiliates or third parties (analytics or ad tech companies, or similar organizations).
“PowerSpike Affiliate” (or “PowerSpike Affiliates”) means PowerSpike’s third-party content providers, distributors, licensees, or licensors.
“Service” (or “Services”) means, any website, game, device, platform, content, and other related products and services provided by PowerSpike and PowerSpike Affiliates, including without limitation any titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a PowerSpike game client, and PowerSpike game clients and server software.
“Terms of Service” (or “Terms”) means, the terms and conditions in this agreement.
“User Content” means, any and all data that you upload, transmit, or create through the Services, including without limitation all messages, forum posts, Account personas, profile information, software, sound, images, videos, precise and imprecise location data, EXIF data, timestamps, metadata, and any other content contributed by users to the Services.
- Explanation of Services
- Overview. PowerSpike is a marketplace that allows Content Creators and Brands to connect for the completion of Campaigns. Campaigns and their completion are entirely the responsibility of Brands and Content Creators. While PowerSpike may provide pricing, a platform for contact, tools for tracking Campaigns, and other assistance to Brands and Content Creators, in no event is PowerSpike: a) liable to a Brand or Content Creator for the successful completion of a Campaign by a Content Creator; or b) liable for non-payment of a Content Creator by a Brand. While PowerSpike may help facilitate the resolution of disputes between Brands and Content Creators pursuant to these Terms of Service, PowerSpike has no control over and does not guarantee: a) the existence, qualify, safety, or legality of any Brand or Content Creator’s actions made within or without the Services; b) the truth or accuracy of any information related to any Brand, Content Creator, or Campaign; c) the ability of Content Creators to successfully complete requirements of a Campaign; or d) the ability of a Brand to pay Content Creators for completion of a Campaign. By accepting a Brand’s Campaign proposal via the Services and agreeing to a Campaign, Content Creator and Brand are entering into a legally binding contract between themselves.
- Campaign Development. Brand may utilize the Services to develop a Campaign in which Content Creators will create and distribute Content, inclusive of any Brand Assets, to promote the Brand and its products and services. PowerSpike matches Brand with Content Creators based on guidelines the Brand will provide via the Services. In their sole discretion, a Brand may choose to approve the use of any Content Creators via the Services. PowerSpike will continue to Hire the same Content Creators during each subsequent Campaign Period, unless Brand directs PowerSpike, either via the Services or Brand’s Campaign Manager, not to re-Hire any particular Content Creator. Brand acknowledges and agrees that Brand will still be liable for any Fees incurred based on an Activated Content Creator’s services performed to date. Brands may pause a Campaign at any time. During a paused Campaign, PowerSpike will not Hire any additional Content Creators, provided that Brand will still be liable for any Fees incurred based on Activated Content Creators’ services performed prior to or after the Campaign pause. Further, in the event Brand pauses a Campaign, any Fees that would otherwise be due to Hired Content Creators upon Activation, will be charged to Brand’s payment method and placed in escrow until Brand reactivates the Campaign. Such Fees will then be distributed to the Hired Content Creators upon Activation. Brand acknowledges and agrees that pausing a campaign will not terminate any license to Brand Assets granted to PowerSpike or Content Creators hereunder and Hired Content Creators may still create and distribute Content during any Campaign Period whereby Brand elected to pause the Campaign.
- Campaign Budget. Using the Services, each Brand shall set a maximum Budget, which PowerSpike will distribute to Activated Content Creators, following the creation and/or distribution of Content. Brands may set the Budget in their sole discretion. Brand acknowledges that each Budget and the Associated Campaign will automatically renew and recur, per the same terms and conditions, each Campaign Period, unless Brand makes any modifications via to the Services or otherwise contacts their Campaign Manager. Brand may modify the Budget at any time during or subsequent to a Campaign Period, provided that Brand will still be liable for any fees incurred by an Activated Content Creators prior to the Budget modification. Brand acknowledges and agrees that if it wishes to reduce a Budget during a Campaign Period, PowerSpike may remove Hired Content Creators from the Campaign. Brand acknowledges and agrees that a portion of the Fee may be received by PowerSpike, in its sole discretion, as part of PowerSpike’s own commission, in addition to any additional amount charged by PowerSpike in connection with the Services.
- Campaign Payment. PowerSpike will Hire Content Creators, as approved by Brand, if so elected, pursuant to the Budget. Once a Content Creator is Hired, he/she may begin to create Content at any time during that Campaign Period. Brand will incur Fees for all services performed by an Activated Content Creator, including the creation and distribution of any Content. PowerSpike will determine the amount of these Fees, in its sole discretion, according to the Content that has been created and its correlated percentage of the Campaign. When the amount of Fees incurred by a Brand meets an Installment amount, as determined by PowerSpike in its sole discretion, PowerSpike will charge the Installment amount to the Brand’s payment method on file. At the end of the Campaign Period, PowerSpike will charge Brand’s payment method for any outstanding Fees, regardless of whether an Installment threshold has been met.
- Brand Payment Method. Brands must have a payment method on file to use the Services, create a Campaign, and hire and Activate Content Creators. If a Brand attempts to remove a payment method, such attempt will be considered a “pause” of the Campaign. Brand will be charged for all outstanding Fees at the time of attempted removal. Brand acknowledges and agrees that if PowerSpike is unable to collect such outstanding Fees, Brand will be liable for any costs and fees, including reasonable attorney’s fees, incurred by PowerSpike in attempting to collect the same.
- Content Creator Payment. PowerSpike shall pay all Activated Content Creators within thirty (30) days of the completion of the Campaign Period, barring a separate agreement between the Content Creator and PowerSpike.
- If a Brand’s payment method fails, PowerSpike may collect amounts owed by charging other Brand payment methods on file with PowerSpike or refusing to initiate the Brand’s Campaign with the Content Creator. In its sole discretion PowerSpike may also retain collection agencies, or retain legal counsel to ensure full payment for a Campaign is made.
- Brands and Content Creators shall be responsible for the payment of any and all tax liability and responsibilities incurred as a result of using the Services, including, but not limited to all federal, state, and local taxes, payroll taxes, self- employment taxes, and any contributions imposed or required under federal, state, and local laws.
- Brand and Content Creator’s Intellectual Property Rights. As part of a Campaign, a Brand may license Brand Assets to PowerSpike who will subsequently sublicense such Brand Assets to a Content Creator so that Content Creator may satisfy their Campaign obligations. Brand shall determine the terms of any license or other transfer of ownership of Intellectual Property Rights between Brand, PowerSpike, and Content Creator with respect to Brand’s intellectual property. Content Creator hereby grants any Brand with which Content Creator contracts with for the completion of a Campaign a non-exclusive, irrevocable, perpetual, transferable, fully paid-up, royalty-free, worldwide license (including the right to sublicense and assign to third party) and right to use, copy, reproduce, quote, re-post, fix, print, archive, store, modify, adapt, create derivative works from, manufacture, commercialize, publish, distribute, sell, license, sublicense, syndicate, transfer, translate, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, perform, enter into computer memory, and practice, in any way, any and all material, whether already existing or yet-to-be-created (“Campaign Content”), that Content Creator uses in satisfying their Campaign obligations. This is inclusive of, but is not limited to, names, logos, monikers, and branding that the Content Creator employed prior to its engagement in a Campaign with a Brand.
- Nonperformance of Campaign Obligations. Should either Brand or Content Creator fail to fulfill the mutually agreed upon terms for the Campaign, including the improper or unauthorized use of any Brand Assets or Campaign Content, Brand or Content Creator may submit a form of Contested Performance at https://powerspike.tv/contact_us. PowerSpike shall evaluate the mutually agreed upon terms of the Campaign and determine the level of completion of the Campaign by Brand and Content Creator, and shall determine Brand and Content Creator’s liability to each other. PowerSpike, in its sole discretion, may release partial fees from escrow to Creator proportional to Creator’s completion of Campaign obligations. The terms of this Section are subject to the limitations contained herein, and PowerSpike’s determination of liability in the event of Contested Performance shall be final and unappealable. For the avoidance of doubt, PowerSpike may, but is not required to, adjudicate a matter of Contested Performance.
- Ownership and Limited License
- Ownership. The Services are owned or licensed by PowerSpike, and are protected by Intellectual Property Rights and other proprietary rights laws. PowerSpike reserves all right, title, and interest in and to the Services, including without limitation all Intellectual Property Rights and other proprietary rights, that are not explicitly granted to you in these Terms. Your permitted use of the Services is limited by the Intellectual Property Rights of PowerSpike.
- License. Subject to your agreement and continuing compliance with these Terms of Service and any other relevant PowerSpike policies, PowerSpike grants you a non-commercial, non-exclusive, non-transferable, revocable, limited license, subject to the limitations in these Terms, to access and use the Services exclusively for the browsing and completion of Campaigns. You agree that you will not use the Services for any other purpose.
- License Limitations. Any use of the Services in violation of the law, these Terms of Service, or these License Limitations is strictly prohibited, and may result in the immediate revocation of your limited license at PowerSpike’s sole judgment, or may subject you to liability for violations of law.
You acknowledge you will not directly or indirectly:
- Partake in any activity or action that PowerSpike deems to be against the spirit or intent of the Services;
- Copy, modify, edit, create derivative works of, publicly display, publicly perform, republish, transmit, or distribute any material obtained through the Services;
iii. Lease, sell, rent, or otherwise exploit for commercial purposes any part of the Services, including without limitation access to or use of the Services;
- Delete, alter, or obscure any Intellectual Property Rights or other proprietary rights notices from copies of materials from the Services;
- Attempt to harass, threaten, bully, embarrass, abuse, or harm, or advocate or incite harassment, abuse, or harm of another person, group, PowerSpike itself or PowerSpike Affiliates;
- Organize or participate in any activity or group that is hateful, harmful, or offensive towards a race, sexual orientation or preferences, religion, heritage or nationality, disability or other health class, gender, age, or similar classes determined by PowerSpike;
vii. Initiate, assist, or become involved in any form of attack or disruption to the Services, including without limitation distribution of a virus, worm, spyware, time bombs, corrupted data, denial of service attacks upon the Services, or other attempts to disrupt the Services or other person’s use or enjoyment of the Services;
viii. Use robots, spiders, crawlers, man-in-the-middle software, or any other automated process to access, use, reverse engineer, or manipulate the Services, Accounts, or PowerSpike;
- Use of access services to obtain, generate, or infer any business information about PowerSpike or PowerSpike Affiliates, including without limitation information about sales or revenue, staff, technical stack, or statistics about users;
- Promote, encourage, or participate in any activity involving hacking, phishing, distribution of counterfeit Services, or taking advantage of or creating exploits, cheats, bugs, errors, or undocumented features, except for the sole purpose of privately and directly notifying PowerSpike;
- Make available through the Services any material or information that infringes any Intellectual Property Right, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including without limitation celebrities and PowerSpike employees;
xii. Attempt to gain unauthorized access to Services or Accounts not belonging to you;
xiii. Use the Services to promote any subject matter on PowerSpike’s prohibited content list, which can be found at https://powerspike.tv/content_guidelines; and
xiv. Use the Services where it is prohibited by law.
- Each Account may only be used by one person. You must take all necessary steps to protect the secrecy of your log in information. Your Account may be terminated if someone else uses it. You must immediately notify PowerSpike of any unauthorized use of your Account or any other such breach of security. PowerSpike shall not be responsible to you for any loss or harm that results from an unauthorized person accessing your Account.
- PowerSpike may permanently delete Accounts that are deemed inactive. Accounts shall be deemed inactive when they have not been used for One Hundred and Eighty (180) days.
- You acknowledge that if your Account is deleted then you may lose access to any information associated with that Account. If you wish to delete your Account, please alert PowerSpike by sending Notice to the following contact: [email protected]
- No matter what else is said in these Terms or anywhere else within the Services, you expressly acknowledge that you have no right, title, or interest to or in any Account you create through our Services, and your Account is not your property. Your Account is owned by PowerSpike and is licensed to you on a limited basis under the same rules as 3(a) and 3(c).
- Payment and Refunds
- ALL CHARGES INCURRED IN CONNECTION WITH THE SERVICES, INCLUDING ALL FEES, ARE FINAL, AND ARE NOT REFUNDABLE IN WHOLE OR IN PART, FOR ANY REASON, EXCEPT: A) AS REQUIRED BY APPLICABLE CONSUMER RIGHTS LAW IN YOUR LOCAL JURISDICTION; OR B) SUBJECT TO POWERSPIKE’S ADJUDICATION OF CONTESTED PERFORMANCE OF A CAMPAIGN. YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION ONCE AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
- User Content
- To the maximum extent permissible by law, PowerSpike assumes no responsibility or liability for the conduct of any user submitting any User Content, and assumes no responsibility or liability for pre-screening or monitoring the Services for inappropriate or illegal content or conduct. We are unable to pre-screen or monitor all User Content and we will not do so. Your use of the Services is at your own risk, and you are solely responsible for any User Content that you post.
- When you transmit or upload User Content, you agree to abide by the following rules:
- All content will be accurate, complete, and free from fraud and deception;
- All content will be free of any Intellectual Property Rights infringement;
iii. All content will be free from obscenity, threats, defamation, invasion of privacy, and other injuries to third parties;
- All content will be in compliance with these Terms of Service;
- All content will not be in violation of any law, contractual restrictions, or other parties’ rights;
- All content will be free of viruses, adware, spyware, worms, or other malicious code;
vii. All content will be free of spam, commercial solicitation, chain letters, and mass mailings.
- You hereby grant PowerSpike a non-exclusive, irrevocable, perpetual, transferable, fully paid-up, royalty-free, worldwide license (including the right to sublicense and assign to third party) and right to use, copy, reproduce, quote, re-post, fix, print, archive, store, modify, adapt, create derivative works from, manufacture, commercialize, publish, distribute, sell, license, sublicense, syndicate, transfer, translate, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, perform, enter into computer memory, and practice, in any way, your User Content, or any portion thereof, in any manner or form in any medium or format, whether now known or hereafter devised, as well as all modified and derivative works thereof in connection with our provision of the Services, including marketing and promotions of the Services, and without Notice, payment, or attribution of any kind to you or any third party. Accordingly, you grant to PowerSpike and PowerSpike Affiliates all licenses, consents, and clearances necessary to enable PowerSpike to use User Content for such purposes. You also hereby grant to PowerSpike the right to authorize others to exercise any of the rights granted to PowerSpike under this Section. You further hereby grant to PowerSpike the unconditional, irrevocable right to use and exploit your name, likeness and any other information or material included in any User Content and in connection with any User Content, without any obligation to you. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in your User Content, regardless of whether your User Content is altered or changed in any manner. PowerSpike does not claim any ownership rights in your User Content and nothing in these Terms of Service is intended to restrict any rights that you may have to use and exploit your User Content.
- In compliance with the Digital Millennium Copyright Act, and other similar or equivalent applicable laws, if PowerSpike is notified that you have infringed the copyrights or other Intellectual Property Rights of others then your access to the Services may be terminated without prior Notice to you. If you believe that your content has been infringed in the Services, please notify us by emailing the following address: [email protected]. Note that if you knowingly misrepresent copyright infringement, you may be liable for damages, including costs and attorneys’ fees. Notices submitted to PowerSpike under this provision should include:
- A description of the Intellectual Property Rights claimed to have been infringed;
- A description of the material claimed to be infringing;
iii. Your name, mailing address, phone number, and email address;
- A statement by you that: (1) you have a good faith belief that Intellectual Property Rights infringement has occurred here; and (2) the information in this notification is accurate, and, under penalty of perjury, you are authorized to act on behalf of the owner of the Intellectual Property Rights that are allegedly infringed; and
- A physical or electronic signature of a person authorized to act on behalf of the owner of the Intellectual Property Rights that are allegedly infringed.
- Brand Assets
By submitting any Brand Assets to PowerSpike pursuant to these Terms and for use in a Campaign, you hereby grant PowerSpike a nonexclusive, irrevocable, royalty free, worldwide, fully to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Brand Assets in any form, format, media or media channels now known or later developed or discovered. For the avoidance of doubt, such license includes explicit authorization for PowerSpike to sublicense the rights granted herein to any Content Creator. By submitting any Brand Assets, you will, at all times, indemnify and hold harmless PowerSpike and its owners, officers, employees, agents, affiliates, and assigns from and against any and all third party claims, damages, liabilities, costs, and expenses, including reasonable attorney’s fees,arising out of any infringement or interference of any third party’s copyrights, patents, trademarks, trade secrets, or other intellectual property rights, that occurs as a result of the use of any Brand Assets in any manner as described herein.
The rights to any Brand Assets licensed by you hereunder will terminate immediately upon written notice to your Campaign Manager, however you agree that PowerSpike may take up to sixty (60) days to work with Content Creators to remove, delete, or otherwise wind up any applicable Brand Assets.
- Term.Unless modified or amended by PowerSpike, this agreement and its provisions shall remain in effect. Termination of any license granted by PowerSpike under this agreement does not affect any other provisions of this agreement..
- Account Access
- By using the Services, you warrant and represent that you are at least 18 years of age and otherwise legally competent to read, understand and accept the provisions of this agreement. If you are under 18 years of age, you must not use any part of the Services, create an Account, or submit any personal information to PowerSpike through the Services.
- If you have been previously banned from using any PowerSpike Services then you may not use our Services.
- Service Availability and Termination.You acknowledge that:
- PowerSpike may in its sole and absolute discretion provide subsequent amendments, versions, enhancements, modifications, upgrades or patches related to any part of the Services;
- PowerSpike has absolute and sole discretion to immediately terminate or restrict access to the Services, or any portion of the Services, including any and all Accounts, at any time, for any reason, without Notice and without liability to you;
- Access to the Services may be interrupted for reasons within or beyond the control of PowerSpike, and that PowerSpike cannot and does not guarantee you will be able to use the Services whenever you wish to do so;
- PowerSpike may not offer the Services in all countries or geographic locations;
- You are solely responsible for any internet connection and mobile fees that you may incur as a result of using our Services.
- Warranty and Liability
YOU ACKNOWLEDGE THAT POWERSPIKE AND POWERSPIKE AFFILIATES ARE NOT LIABLE
(1) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE; OR
(2) FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES.
THE SERVICES ARE PROVIDED BY POWERSPIKE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. POWERSPIKE MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES, UNLESS SUCH WARRANTIES OR OTHER STATUTORY CONSUMER RIGHTS ARE LEGALLY INCAPABLE OF EXCLUSION OR LIMITATION IN YOUR LOCAL JURISDICTION. THE RISK OF USING THE SERVICES RESTS ENTIRELY WITH YOU AS DOES THE RISK OF INJURY FROM THE SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, POWERSPIKE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. POWERSPIKE DOES NOT WARRANT THAT THE SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
TO THE FULLEST EXTENT ALLOWED BY ANY LAW THAT APPLIES, THE DISCLAIMERS OF LIABILITY IN THESE TERMS APPLY TO ALL DAMAGES OR INJURY CAUSED BY THE SERVICES, OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICES, UNDER ANY CAUSE OF ACTION IN ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE).
TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, THE AGGREGATE LIABILITY OF POWERSPIKE AND/OR POWERSPIKE AFFILIATES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS YOU HAVE PAID (IF ANY) TO POWERSPIKE AND/OR POWERSPIKE AFFILIATES IN THE ONE HUNDRED AND EIGHTY DAYS (180) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
IF YOU HAVE NOT PAID POWERSPIKE OR ANY POWERSPIKE AFFILIATE ANY AMOUNT IN THE ONE HUNDRED AND EIGHTY DAYS (180) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH POWERSPIKE AND/OR ANY POWERSPIKE AFFILIATE IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
YOU REPRESENT AND WARRANT THAT YOU ARE NOT LOCATED IN A COUNTRY THAT IS SUBJECT TO A UNITED STATES GOVERNMENT EMBARGO, OR THAT HAS BEEN DESIGNATED BY THE UNITED STATES GOVERNMENT AS A “TERRORIST SUPPORTING” COUNTRY, AND YOU ARE NOT LISTED ON ANY UNITED STATES GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES.
SOME STATES, COUNTRIES, OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH STATES, COUNTRIES, OR JURISDICTIONS, POWERSPIKE AND POWERSPIKE AFFILIATES SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, SUBJECT TO ANY APPLICABLE STATUTORY CONSUMER RIGHTS LAWS IN YOUR LOCAL JURISDICTION.
- You agree to defend, indemnify and hold harmless PowerSpike, PowerSpike Affiliates, and any third-parties under agreement with PowerSpike, and any employee, contractor, vendor, agent, supplier, licensee, customer, distributor, shareholder, director or officer of any of the foregoing, as well as any person using the Services and any person or entity that becomes aware of your use of the Services at any time, with respect to any and all claims, liabilities, judgments, awards, injuries, damages, losses, costs, fees, or expenses (including but not limited to attorney’s fees and costs) that arise under, from or in any way, directly or indirectly, relate to:
- Your failure to comply with any provision of these Terms of Service;
- Your use of the Services, including but not limited to economic, physical, emotional, psychological or privacy related considerations;
iii. Your failure to render payment for a Campaign or failure to satisfy the mutually agreed upon terms of a Campaign; and
- Your actions to knowingly affect the Services via any bloatware, malware, computer virus, worm, Trojan horse, spyware, adware, crimeware, scareware, rootkit or any other program installed in a way that executable code of any program is scheduled to utilize or utilizes processor cycles during periods of time when such program is not directly or indirectly being used.
- PowerSpike and PowerSpike Affiliates reserve the right, but not the obligation, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
- You acknowledge, and further agree that PowerSpike has no obligation to defend, indemnify or hold harmless you in any way related to this agreement, including but not limited to your use of the Services, use of the Services by any person, or any connection between the foregoing and any other person or entity that becomes aware of your use of the Services at any time.
- This Section shall survive the termination of this agreement.
- Dispute Resolution
- Informal Resolution. With respect to any Dispute, you agree to attempt to negotiate the resolution of any Dispute informally for at least thirty (30) days before initiating any arbitration or other proceeding, including any legal proceeding in court or before an administrative agency. Such informal negotiations commence upon PowerSpike’s receipt of Notice from you.
- Contact Information. PowerSpike can be reached at the following address:
850 New Burton Road, Suite 201
Dover, Delaware 19904
- Mandatory Binding Arbitration. If you are not able to satisfactorily resolve a Dispute informally within a total of thirty (30) days, or if PowerSpike, in its sole and absolute discretion, determines that it will not be possible to satisfactorily resolve that Dispute informally within a total of thirty (30) days, you agree that either you or PowerSpike may request resolution by final and fully binding arbitration conducted under the Commercial Arbitration Rules of the American Arbitration Association. The party requesting that a Dispute be resolved by arbitration under this Section shall be responsible for initiating such a proceeding.
- The American Arbitration Association (“AAA”) will run the arbitration between you and PowerSpike, and AAA’s rules and procedures (including their Supplementary Procedures for Consumer-Related Disputes, if applicable) will be used. If something in these Terms is different than AAA’s rules and procedures, then we will follow these Terms instead. You can look at AAA’s rules and procedures on their website www.adr.org or you can call them at 1-800-778-7879.
- YOU UNDERSTAND, AND FURTHER AGREE, THAT YOU HAVE THE RIGHT TO CONSULT WITH INDEPENDENT LEGAL COUNSEL OF YOUR OWN CHOOSING REGARDING THIS AND ANY OTHER PROVISION IN THIS AGREEMENT AND THAT THIS BINDING ARBITRATION PROVISION WILL ELIMINATE YOUR LEGAL RIGHT TO SUE IN COURT, TO HAVE A JURY TRIAL, AND/OR TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO ANY SUCH DISPUTE. You and PowerSpike both agree that neither shall attempt to have any other arbitration or class action related to any other party joined to any arbitration in which you are involved with PowerSpike. To the fullest extent permitted by law, no arbitration proceeding shall be decided on a class-action basis or utilizing class action procedures. You and PowerSpike further agree that each may bring claims against the other only in an individual capacity, and not as a plaintiff or a class member in any purported class or representative proceeding.
- Changes. It is your responsibility to read, understand, and accept this agreement in connection with your use of the Services. You acknowledge that PowerSpike may make changes to these Terms of Service at any time, and that Section headings in this agreement are for purposes of convenience only. Unless PowerSpike states otherwise, any changes to these Terms are effective when posted. If you continue to use the Services after any changes are posted then you agree that those changes will apply to your continued use of the Services. You should check this page regularly to stay informed about any changes.
- Complete agreement. This agreement: (1) is the final and complete agreement and understanding of the parties concerning the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous agreements and understandings with respect thereto; (2) may not be changed, amended, or in any manner modified by you except as authorized in a writing signed by both parties’ authorized agents; (3) is not assignable, except to a successor in interest to substantially all of a party’s business or assets and any other attempt to assign or transfer this agreement or any interest herein is void; and (4) shall be binding upon, and inure to the benefit of, the parties hereto, their respective heirs, executors, administrators, successors, personal representatives, licensees, and assigns.
- Force Majeure. No party shall be responsible for delays or failure of performance resulting from acts beyond the reasonable control of such party, including, war, terrorism, acts of public enemies, strikes or other labor disturbances, power failures, fires, floods, earthquakes, acts of God, and other natural disasters.
- Waiver. No act or failure to act by PowerSpike will be deemed a waiver of any right contained in this agreement, and any waiver by PowerSpike must be in writing and signed by an officer of PowerSpike. If PowerSpike does expressly waive any provision of this agreement, such waiver shall not be a waiver of any other provisions of this agreement, and the waived provision shall not be waived for all time in the future.
- Severability. If any provision or sub-provision of this agreement is found to be invalid or unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision or sub-provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.
- Remedies. You acknowledge and agree that any violation or threatened violation of this agreement will cause irreparable injury to PowerSpike, entitling PowerSpike to seek injunctive relief without the necessity of proving actual damages, in addition to all other remedies at law or in equity. You specifically acknowledge that money damages alone would be an inadequate remedy for the injuries and damages that would be suffered and incurred by PowerSpike as a result of a breach of any of the provisions of this agreement.
- Governing Law and Venue. Any dispute or claim arising out of or related to this agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to any choice or conflict of laws principles. Unless subject to arbitration under Section 11, the Courts in the State of New York shall have exclusive jurisdiction over any legal suit, action, or proceeding arising out of, or relating to, disputes or claims that might arise under this agreement. Accordingly, the parties consent to the personal jurisdiction of the Courts in the State of New York, and hereby waive any and all jurisdictional or venue defenses otherwise available to them.
- Language. To the fullest extent permitted by law, the controlling language for these Terms of Service is English.