You, the subscriber, agree to be bound by these terms, to comply with them, and to ensure that all your users (as defined below) comply with them. They continue to apply after your subscription has ended. Please note that they include terms which exclude and restrict our liability even if we have been negligent.
The app is made available by us, Sparkol Ltd, a company incorporated in England and Wales (number 06762963). Our registered office and main trading address is 1 Temple Way, Old Market, Bristol BS2 0BY, UK.
In these terms:
app: means the code that provides the app’s functionality and the app content;
app content: means any images (still or moving) of any kind, text, music, speech and other sounds made available by us for use with the app code, including premium content;
premium content: means any app content that we have identified as premium content on our website;
product description: means the description of the app, the app content, and the services we provide in connection with the app which appears on our website (www.sparkol.com)
project: means a collection and sequence of images (still or moving) of any kind, text, data, music, speech and other sounds created or used with the app by one or more of your users under your app account which is intended to be used with the app as a single entity - projects with some apps may be known by another name;
you: means the person who has subscribed to the app, which may be a company, a firm or an individual;
your users: means you and anyone else who uses the app through your app account and either does so with your permission or works for you;
your content: means any images (still or moving) of any kind, text, music, speech and other sounds, and data used with the app by your users, except those which are app content;
Any use of the app by your users is deemed to be use by you, and any project created or used by your users is deemed to be your project, and references to “your use” and “your project” in these terms and our acceptable use policy include any use by your users and any project created or used by your users;
“we” and “us” refer to Sparkol and “our” means “Sparkol’s”;
“person” includes an individual, a partnership and a corporation of any kind, no matter where in the world he or it is resident, domiciled, incorporated or established;
A reference to your subscription ending includes its coming to an end by termination;
Examples introduced by the words “including”, “include”, “in particular” or any similar expression only emphasise that those examples are included and do not limit the sense of any preceding words;
A reference to the singular or the plural includes both, and a reference to any gender includes all genders;
A reference to a statute or a statutory provision is - unless expressly stated otherwise - a reference to it as it is in force from time to time.
2 The app and our services
2.1 The app’s functionality, the app content and the services we provide in connection with the app, are as described in the product description.
2.2 Except to the extent that any such term is to be treated as being included by virtue of the Consumer Protection Act 2015 and cannot be excluded, it is not a term of your agreement with us that the app is of satisfactory quality or has any functionality that is not described in the product description, or that we will correct any defects in the app or develop it further.
2.3 Subject to the Consumer Protection Act 2015, we may remove any functionality from the app without providing any reason or warning.
2.4 We warrant that we have exercised reasonable care and reasonable skill in creating the app, and that we will provide our services with reasonable care and reasonable skill, but it is not a term of your agreement with us that we will achieve any particular outcome.
2.5 The app may require the installation of software and software updates on your device, and the exchange of information between your device and our systems, and you agree to this.
3 Use of the app
3.1 You may need an active Sparkol account to use the app. You will be able to register an account as part of the ordering process if you do not have one already.
3.2 Subject to these terms and your compliance with them, you may use the app in accordance with these terms. You may not use the app otherwise and you agree not to do so.
3.3 You may only use the app within the scope of your subscription as it is described on our website.
3.5 You must ensure that only one individual knows the primary username and associated password for your app account, and that each of your users keeps his username and password secret.
3.6 Unless and until you tell us that you believe someone is using the app through your app account without your permission, anyone using it through your app account is deemed to be one of your users and you will be liable for that use. This does not apply if that person does not work for you and did not acquire your app account username or password through you, your authorised users or anyone who works for you, but it is for you to prove that this is the case.
3.7 You may not charge anyone for using the app or allow anyone to use the app except for the purposes of viewing or using your projects.
3.8 You may only use app content with the app and you may only use it for creating and using your projects.
3.9 You may use your projects with the app for private or commercial purposes.
3.10 While your subscription is current:
(a) You may use the app to create, edit and use your projects;
(b) You may store your projects on our system or your system;
(c) You may charge anyone for using your projects (but not the app).
3.11 Once your subscription has ended:
(a) Provided it lasted at least one month, your app account remains active, and you comply with these terms, you will be able to use any of your projects which are stored on your system;
(b) You will not be able to access or use any of your projects which are on our system;
(c) You will not be able to create or edit projects;
(d) You will not be able to store projects on our system;
(e) You must not sell your project or charge anyone for using either your project or the app;
(f) We may retain any of your projects which are on our system for as long as we wish;
(g) We may permanently delete any of your projects from our system without warning.
3.12 You must not use the app or your projects in connection with any offence, libel or slander, or in any way that is unlawful, unreasonably causes any person distress or offence, or brings our name into disrepute.
3.13 You must ensure that your projects do not infringe any rights of any third party, and that your use of your projects and/or the app does not either.
3.14 You must not modify the app in any way, combine it with any other software, or give any indication that it is anything other than an app that has been created and distributed by Sparkol.
4 Premium content
Premium content is made available by us but it may be provided by third parties. You will have to pay an additional charge to use premium content unless we have explicitly stated that it is included in the subscription charge.
5 Additional terms
If you are subscribing to any of the following apps, or are using any of the following premium content, you agree to be bound by the following additional terms, to comply with them, and to ensure that all your users (as defined below) comply with them:
VideoScribe: Danosongs.com provides royalty-free music for download, but you must provide a note crediting Dan-O as the producer.
You will need to make this information visible in the credits or description of your video and use this extract text taken directly from the licence: Dan-O at http://danosongs.com
VideoScribe: You may purchase premium content in the form of moving and/or static images (Premium Images) through the VideoScribe App, for use within your Projects and are not required to attribute that Premium Image to its Contributor, or include any other form of credit to the Contributor.
Premium Images may be supplied by third parties (Contributors). By purchasing a Premium Image, you are granted the right to incorporate and use that Premium Image within any VideoScribe Project, but will not have any right to use that Premium Image in any other way.
You may store the Premium Image locally and use it within any VideoScribe Project but you will be charged each time you download the same image from the Premium Image library.
If you are a business, you may use that Premium Image for commercial purposes in accordance with these Terms, but only where that Premium Image forms part of a VideoScribe Project.
6 Intellectual property rights
6.1 Subject to clauses 6.2 and 6.3, we will not acquire any rights or interests in your projects.
6.2 You will not acquire any title, right, or interest to or in the app, all of which are retained by us or the persons who have licensed any parts of the app to us.
6.3 You authorise us to use your projects, both while your subscription is current and after it has ended, in the course of making the app’s functionality available to you, and providing our support services to you.
7 Technical protection measures
7.1 The app and the intellectual property in it are protected by technical measures to prevent unauthorised use and you agree not to remove or circumvent any of these.
8 Exclusions and restrictions of our liability
8.1 We will not be in breach of contract or liable in any way whatsoever for failing to discharge our obligations, or for doing so late, if that failure or delay is a consequence of any failure on your part to discharge your obligations, or any delay on your part in doing so, or any cause that is beyond our reasonable control.
8.2 Subject to clause 8.5, we will not be liable for any of the following:
(a) Loss or damage resulting from the app not being available for use;
(b) Loss or damage resulting from the deletion of your projects from our system after your subscription has ended, or any costs and expenses associated with their reconstruction;
(c) Indirect or consequential loss or damage;
(d) Loss or damage of or to reputation, goodwill, business, revenue, profit or expected savings;
(e) Loss or damage of or to any software or data (including your content and your projects) which you could reasonably have avoided by making a backup copy of it;
(f) Any fine, penalty, tax or other levy imposed on you or another user by any court, tribunal or regulator (including the UK Information Commissioner) in connection with your content or your projects;
(g) Any costs or expenses incurred by you or another user in avoiding or dealing with any investigation, action or proceedings brought by or before any regulator (including the UK Information Commissioner) in connection with your content or your projects.
8.3 Our total aggregate liability in respect of all loss, damage, costs and expenses resulting from, arising out of, or relating to your use of the app or your agreement with us is limited to the higher of £1,000 and your total subscription charges for the app for the subscription year in which the event (or, where there is more than one such event, the first of those events) giving rise to the loss or damage occurred, where a “subscription year” is the year starting on the date of your payment of the first subscription charge for the app and each subsequent year.
8.4 Subject to clause 8.5, the exclusions and restrictions of liability in this clause 8 cover all loss, damage, costs and expenses of the kind described, irrespective of the basis for the liability and even if they result from our negligence or from other negligence for which we would otherwise be liable.
8.5 As exceptions, our liability for any of the following is not restricted: personal injury resulting from negligence, whether or not it results in death; a breach of any term implied by section 2 of the Supply of Goods and Services Act 1982 or sections 34, 35, 36, 37, 41, 49, 50, 51 or 52 of the Consumer Rights Act 2015; fraud, fraudulent statements and fraudulent misrepresentations.
8.6 When applying the limits described in clause 8.3, any liability which is unrestricted by virtue of clause 8.5 is to be taken into account first so that any other liability may be reduced or even extinguished.
9.1 You agree to indemnify us in respect of all loss, damage, costs and expenses which we suffer or incur as a consequence of your breach of these terms. Your liability for our costs and expenses under this indemnity is to be assessed on the court’s “indemnity basis” rather than the “standard basis”, and you are liable to pay them under this indemnity even if you would not otherwise be liable for costs and expenses (including by reason of the allocation of the case to the court’s small claims or fast track).
9.2 If your projects or your use of them infringe any rights of any third party, then except to the extent that the infringement results from the inherently infringing nature of the app, you agree to indemnify us against the costs and expenses we incur in defending and settling any claims based on the infringement which are brought against us, and any payments we reasonably make in settlement of such claims or pursuant to any orders of a court or arbitrator in respect of such claims. Your liability for our costs and expenses under this indemnity is to be assessed on the court’s “indemnity basis” rather than the “standard basis”, and you are liable to pay them under this indemnity even if you would not otherwise be liable for costs and expenses (including by reason of the allocation of the case to the court’s small claims or fast track).
10 Personal data
10.2 We will store any payment card details in an encrypted form and we will have agreements with any companies we use to process your payments requiring them to do the same.
10.3 Each of your users is entitled to request the following: (i) A copy of the personal data about him which we hold as a data controller; (ii) Its source; (iii) The purposes we use it for as data controller; (iv) Who receives it, or may receive it, from us. We charge £10 for providing this information.
10.4 Each of your users is entitled to insist that we stop using for direct marketing purposes his email address and any personal data about him which we hold as data controller.
10.5 If one of your users believes that our use in a particular way of any personal data about him which we hold as data controller is causing someone substantial and unwarranted damage or distress, or is likely to do so, he is entitled to ask us to stop using it that way and we will deal with his request in accordance with the Data Protection Act.
10.6 You are the data controller with regard to any personal data recorded in your content and projects and we are acting as your data processor with regard to such data. Except as required or permitted by law, we will only process that personal data as part of providing the app’s functionality to or for you. In doing so, we may transfer your content and projects to other companies and to countries outside the EEA (which may not have adequate laws for protecting that personal data) for storage and processing on our behalf in those countries. We will always have appropriate contractual arrangements with those companies which restrict their use of your content and projects to the provision of their services to us, but as the data controller it is your responsibility to ensure that any such transfers satisfy the conditions imposed by the Data Protection Act.
11 We may close your app account
11.1 If any of the following events occur we may, at our absolute discretion, close your app account and prevent your use of the app or your projects without any liability to you:
(a) If you fail to pay any monies due under these terms by the due date;
(b) If you breach any of these terms in any way;
(c) If you use the app or your projects in any way which, in our reasonable opinion, is in breach of these terms;
(d) If a third party threatens to start legal proceedings against us unless we prevent the use of the app in connection with one or more of your projects;
(e) If you challenge or dispute the subsistence or validity of any title, right, or interest to or in the app or your projects which are retained by us (or the persons who have licensed any parts of the app to us) under clause 6.2.
11.2 We may also, at our absolute discretion, close your app account and prevent your use of the app or your projects without giving any reason or warning, but in this case we will refund any monies you have paid in respect of the remainder of the period for which you have paid, calculated proportionately according to the number of days remaining.
12 General terms
12.1 We may analyse your use of the app for our own business purposes.
12.2 We may use your name and trademarks in our marketing materials to identify you as a user of the app.
12.3 We may freely assign the benefit of your agreement with us.
12.4 If these terms require you not to do something, you must not attempt or allow, assist or encourage any other person to do it either.
12.5 These written terms, and any which have to be treated as being included by virtue of the Consumer Protection Act 2015 and/or the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, form the whole agreement you have with us, and you confirm and warrant that, apart from any trial of the app you may have had, you have not relied on anything else when deciding to enter into that agreement.
12.6 These terms do not affect any right or remedy which you might have, or any liability which we might have, for any of the following: personal injury resulting from negligence, whether or not it results in death; a breach of any term which has to be treated as being included in your agreement with us by virtue of sections 34, 35, 36, 37, 41, 49, 50, 51 or 52 of the Consumer Rights Act 2015; fraud, fraudulent statements and fraudulent misrepresentations.
12.7 Our acceptance of your subscription charges, and our permitting you and your users to use the app, will not prevent us from exercising any right or remedy we may have in respect of your breach of these terms even if we are aware of it at the time, and you agree not to claim that it does.
12.8 Except where they state otherwise, these terms do not give anyone other than you and us (or our successor in title) any right to enforce them and neither you nor we need any third party’s consent before terminating the agreement you have with us.
12.9 We may change these terms at any time to the extent required in order to comply with any law, regulation or court order without your or any third party’s agreement. We will inform you of any such changes, after which both you and we will be legally bound by them.
12.10 We may change these terms at any time, without giving any reason, without your or any third party’s agreement. We will inform you of any such changes, after which both you and we will be legally bound by them unless you end your subscription within 7 days. If you do end your subscription within 7 days, we will refund any monies you have paid in respect of the remainder of the period for which you have paid, calculated proportionately according to the number of days remaining.
12.11 Every aspect of your agreement with us (including its formation and effect) is governed by English law and the English courts have exclusive jurisdiction over any contractual or other dispute relating to, or arising out of, the agreement, the app or your use of it. As an exception, you or we may apply to any court which would otherwise have jurisdiction for an injunction (or an equivalent or similar order) to restrain the other from infringing its rights or breaching the agreement.