Lou Adventures
User Agreement
This Lou Adventures User Agreement (“Agreement”) is a binding agreement entered into on the date upon which you click “I Agree” after reading the terms below (the “Effective Date”), and is between you (“End User” or “you” (which includes your child or a minor under your guardianship) and Sparkstone Ventures LLC’s (“Sparkstone”). This Agreement governs your access to and use of Sparkstone’s Lou Adventures platform that provides a children’s educational game (collectively the “Services”) and the Lou Adventures online Services platform that enables and facilitates the Services and any supporting mobile Platform (the Lou Adventures platform and any app, including all related documentation, are referred to herein collectively as the “Platform”). The Platform is licensed, not sold, to you.
By using the Platform and the Services, you (a) acknowledge that you have read and understand this Agreement; (b) represent that you are 18 years of age or older; (c) agree that you are responsible for your child’s use of the Platform and Services and for his or her compliance with the terms of this Agreement; and (d) accept this Agreement and agree that you are legally bound by its terms. If you do not agree to these terms, you may not register to use the Services or access or use the Platform.
1. Registration/Collection and Use of Your Information. You will be required to register to use the Services, and in the course of doing so you will submit information about you for purposes of creating a user profile. By submitting information that identifies you or others directly or indirectly, you agree to the use of that information as described in the Privacy Policy, the terms of which are incorporated by reference into this Agreement. You acknowledge that when you download, install, or use the Platform, Sparkstone may use automatic means (including, for example, cookies and web beacons) to collect information about your device and about your use of the Platform. By downloading, installing, using, and providing information to or through the Platform, you consent to all actions taken by Sparkstone with respect to your information and User Content (as defined below) in compliance with the Privacy Policy.
2. User Name/Password Protection. You also will be required to choose a username and password for your account. You agree that you are entirely responsible for safeguarding and maintaining the confidentiality of the username and password you use to access the Platform. You authorize Sparkstone to assume that any person using the Platform with your username and password is you or is authorized to act for you. You agree to notify us immediately if you suspect any unauthorized use of your account.
3. Your Responsibilities.
(a) You have and will retain sole control of all access to and use of the Platform by any individual using your Platform logon credentials, including any: (i) information, instructions, or materials posted by or provided by any individual within the Platform; (ii) results obtained from any use of the Platform; and (iii) conclusions, decisions, or actions based on such use.
(b) You have and will retain sole responsibility for: (a) all information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from you, or from any individual using the Platform under your logon credentials, by or through the Platform or that incorporates or is derived from the storage, compilation or management of such information, data, or content by or through the Platform; (b) all information, instructions, and materials provided by or on behalf of you or by any individual using the Platform under your logon credentials; (c) your information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by you or through the use of third-party services; (d) the security and use of your Platform access credentials; and (e) all access to and use of the Services and the Platform directly or indirectly by you or any individual using the Platform under your logon credentials, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
4. Pricing and Payment.
(a) Pricing. Sparkstone initially and for a limited time is making the Platform and Services available for free. Sparkstone reserves the right to begin charging for access to the Platform and Services at a time of its choosing and without prior notice to you. When Sparkstone begins charging you will be directed to a payment information page when you next attempt to login to access the Platform and Services.
(b) Pricing Increases. Sparkstone may increase the pricing at its sole discretion.
5. User Content.
(a) The Platform and the Services allow you to submit, upload, publish or otherwise make available to Sparkstone through the Services text authored by you or others and data arranged and compiled by you or others (“User Content”). Any User Content provided by you remains your property, or the property of others where applicable. However, by posting User Content within the Platform and submitting the User Content to Sparkstone, you grant Sparkstone a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to use, edit, copy and distribute (solely at Your direction) such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Sparkstone’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
(b) You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Sparkstone the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor Sparkstone ’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
(c) The Services and the Platform are intended to manage and organize the User Content and enable the efficient distribution and use of the User Content that you submit. Sparkstone will exert commercially reasonable efforts to carry out the Services in an error-free manner. You understand that Sparkstone does not warrant accuracy or a lack of data processing errors. Furthermore, you agree to engage in validation review of the User Content as it appears in the Platform to independently ensure the integrity and usability of the User Content, and to inform Sparkstone of any errors, inconsistencies or issues that should be addressed.
6. Prohibited Uses of Platform.
(a) You agree not to access (or attempt to access) the Platform by any means other than through the website platform or any mobile app interface that is provided by Sparkstone. You agree that you will not copy or scrape, through manual or automated means, any data from the Platform apart from your use of the data needed by or useful to you for your individual use consistent with the intended use of the Platform. You agree that you will not engage in any activity that interferes with or disrupts the Platform (or the servers and networks which are connected to the Platform). You agree that you will not reproduce, duplicate, copy, sell, trade or resell the Platform for any purpose. You agree that you are solely responsible for (and that Sparkstone has no responsibility or liability to you or to any third party for) any breach of your obligations under this Agreement and for any consequences (including any loss or damage which Sparkstone may suffer) of any such breach.
(b) You agree that you shall not transmit to Sparkstone or upload to or through the Platform (whether as User Content or otherwise) any Harmful Code, or use or misappropriate the Platform for your own commercial gain. “Harmful Code” shall mean any software (sometimes referred to as “viruses,” “worms,” “Trojan horses,” “time bombs,” “time locks,” “drop dead devices,” “traps,” “access codes,” “cancelbots” or “trap door devices”) that: (a) is designed to damage, disrupt, disable, harm, impair, interfere with, intercept, expropriate or otherwise impede in any manner, any data, storage media, program, system, equipment or communication, based on any event, including for example but not limited to (i) exceeding a number of copies, (ii) exceeding a number of users, (iii) passage of a period of time, (iv) advancement to a particular date or other numeral, or (v) use of a certain feature; or (b) would enable an unauthorized person to cause such result; or (c) would enable an unauthorized person to access another person’s information without such other person’s knowledge and permission.
(c) Without limiting the foregoing and by way of example only, users may not:
i. Generate or facilitate unsolicited commercial email (“spam”). Such activity includes, but is not limited to:
A. sending messages in violation of the CAN-SPAM Act under U.S. law or any other applicable anti-spam law;
B. imitating or impersonating another person or his, her or its email address, or creating false accounts for the purpose of sending spam;
C. sending messages to users who have asked not to be contacted;
D. selling, exchanging or distributing to a third party the contact information of any person without such person’s knowledge of, and continued consent to, such disclosure; and
E. using Sparkstone contacts in violation of Sparkstone policy, as determined by Sparkstone, including, for example, as indicated by low response rates from those persons contacted.
ii. Send, upload, distribute or disseminate any unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, or otherwise objectionable content, or offer to do the same.
iii. Intentionally distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other Harmful Code or items of a destructive or deceptive nature.
iv. Conduct or forward pyramid schemes or similar programs.
v. Transmit content that may be harmful to minors.
vi. Impersonate another person (via the use of an email address or otherwise) or otherwise misrepresent yourself or the source of any email.
vii. Transmit another’s intellectual property or other proprietary or confidential information without such owner’s or licensor’s permission.
viii. Violate the legal rights (such as rights of privacy and publicity) of others.
ix. Promote or encourage illegal activity.
x. Interfere with other Sparkstone users’ enjoyment of the Platform.
xi. Create user accounts by automated means or under false or fraudulent pretenses.
xii. Sell, trade, resell or otherwise exploit for any unauthorized commercial purpose, or transfer, any Sparkstone account.
xiii. Modify, adapt, translate, or reverse engineer any portion of the Platform.
xiv. Reformat or frame any portion of the web pages that are part of the Platform without Sparkstone’s explicit written permission.
xv. Contact other Sparkstone users about multi-level marketing (MLM) programs or any topics Sparkstone considers detrimental to its users.
xvi. Create multiple Sparkstone accounts without permission.
xvii. Bypass any limitations or suspensions of functionality.
xviii. Provide false information.
7. License Grant. Subject to the terms of this Agreement, Sparkstone grants to you a limited, non-exclusive, non-sublicensable and nontransferable license to download, install, and use the Platform for the Term strictly in accordance with the Platform’s documentation and solely for use of the Services. For the avoidance of doubt, this license does not entitle you to distribute or re-sell the Platform or any data accessed through the Platform.
8. License Restrictions. You shall not:
(a) copy the Platform, except as expressly permitted by this Agreement;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Platform;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Platform or any part thereof;
(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Platform, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform, the data accessed through the Platform, or any features or functionality of the Platform, to any third party for any reason, including by making the Platform available on a network where it is capable of being accessed by more than one device at any time; or
(f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Platform.
9. Reservation of Rights. The Platform and its entire contents (other than materials you submit), features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Sparkstone, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. You acknowledge and agree that the Platform is provided under license, and not sold, to you. You do not acquire any ownership interest in the Platform or the data accessible through the Platform under this Agreement, nor do you acquire any other rights thereto other than to use the Platform in accordance with the license granted, and subject to all terms, conditions, and in accordance with the Platform’s documentation. Sparkstone reserves and shall retain its entire right, title, and interest in and to the Platform, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
You or a third party own all content that you or any individual using the Platform under your logon credentials submit to the Platform, and Sparkstone disclaims ownership of or responsibility for such content. You hereby irrevocably grant all rights and permissions in or relating to such content as is necessary or useful to Sparkstone to enforce this Agreement and exercise Sparkstone’s rights and perform Sparkstone’s obligations hereunder.
10. Updates. Sparkstone may from time to time in its sole discretion develop and provide Platform updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Sparkstone has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. If you access the Services via a mobile Platform, and depending upon your mobile device settings, when your mobile device is connected to the internet either:
(a) the Platform will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Platform or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Platform and be subject to all terms and conditions of this Agreement.
11. Third-Party Materials. The Platform may display, include, or make available third-party content (including data, information, Platforms, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Sparkstone is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Sparkstone does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
12. Representations and Warranties.
You represent and warrant that:
(a) you are in compliance with all laws applicable to your use of the Platform and Services;
(b) you own or otherwise have and will have the necessary rights and consents in and relating to all content that you or any individual using the Platform under your logon credentials submit to the Platform so that, as received by Sparkstone and stored and shared within the Platform, such content does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, privacy right or other rights of any third party or violate any applicable law;
(c) you have the right and authority to enter into this Agreement;
(d) your entering into this Agreement with Sparkstone and your performance of your obligations under the Agreement do not and will not conflict with or result in any breach or default under any other agreement to which you are subject; and
(e) that you will not use the Platform in connection with any “prohibited transaction” as defined under the Cuban Assets Control Regulations, 31 C.F.R. Part 515; Iranian Transactions Regulations, 31 C.F.R. Part 560; or Sudanese Sanction Regulations, 31 C.F.R. Part 538; Former Liberian Regime of Charles Taylor Sanctions Regulations, 31 C.F.R. Part 593; Burmese Sanctions Regulations, 31 C.F.R. Part 537; Foreign Assets Control Regulations as they relate to North Korea, 31 C.F.R. Part 500; Executive Order 1338; or any other law, regulation or executive order of the United States of America.
13. Term and Termination.
(a) The term of Agreement commences on the Effective Date and will continue in effect until terminated by you as set forth below in Section 15(b) or by Sparkstone as set forth below in Section 15(c).
(b) You may terminate this Agreement by ceasing to use the Platform and, if you have downloaded the Platform in mobile app form, deleting the Platform and any copies thereof from your mobile device.
(c) Sparkstone may terminate this Agreement at any time without notice if it ceases to support the Platform, which Sparkstone may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically, and Sparkstone reserves the right to disable your or any individual’s access to the Platform, without any notice if you violate any of the terms and conditions of this Agreement. This Section 15(c) does not limit any of Sparkstone’s other rights or remedies, whether at law, in equity, or under this Agreement.
(d) Upon termination:
(i) all rights granted to you under this Agreement will also terminate; and
(ii) you must cease all use of the Platform and, if applicable, delete all copies of the Platform from your mobile device and account.
(e) Termination will not limit any of’ Sparkstone’s rights or remedies at law or in equity. Moreover, upon termination or expiration of this Agreement Sections 12, 13, 14, 15, 16, 18, 19, 20, 21 and 22 and any other provision of this Agreement that by its terms would be expected to survive termination or expiration of this Agreement will survive termination or expiration of this Agreement.
14. Disclaimer of Warranties. THE PLATFORM IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SPARKSTONE, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, SPARKSTONE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, PLATFORMS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO IT COULD BE THAT SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS DO NOT APPLY TO YOU.
15. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SPARKSTONE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE PLATFORM OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) IN THE CASE OF ENTERPRISE LICENSES, DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO SPARKSTONE FOR USE OF THE PLATFORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO YOUR PROVIDING NOTICE OF A CLAIM (DEFINED IN SECTION 18 BELOW).
(c) IN THE CASE OF ONE-TIME USE LICENSES, DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO SPARKSTONE FOR USE OF THE PLATFORM DURING THE ONE (1) YEAR PERIOD PRIOR TO THE EVENT THAT GIVES RISE TO YOUR CLAIM OF LIABILITY ON SPARKSTONE’S PART.
SPARKSTONE IS NOT RESPONSIBLE OR LIABLE FOR ANY DELAY OR FAILURE OF PERFORMANCE CAUSED IN WHOLE OR IN PART BY YOUR DELAY IN PERFORMING, OR FAILURE TO PERFORM, ANY OF YOUR OBLIGATIONS UNDER THIS AGREEMENT. THE PLATFORM AND SERVICES DO NOT REPLACE THE NEED FOR YOU TO MAINTAIN REGULAR DATA BACKUPS OR REDUNDANT DATA ARCHIVES. SPARKSTONE HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF YOUR DATA.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR SPARKSTONE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
16. Indemnification. You agree to indemnify, defend, and hold harmless Sparkstone and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees (collectively “Claims”), arising from or relating to your use or misuse of the Platform or Services or your breach of this Agreement, including but not limited to the content you submit or make available through this Platform.
17. Geographic Restrictions. Sparkstone makes no claims that the Platform, any of its content, or the Services are accessible or lawful outside of the United States. Access to the Platform and use of the Services might not be legal by certain persons or in certain countries. If you access the Platform from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. Furthermore, by agreeing to the terms of this Agreement you consent to the processing of your personal data in the United States.
18. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect; provided, however, that if any fundamental term or provision of this Agreement is invalid, illegal, or unenforceable, the remainder of this Agreement shall be unenforceable.
19. Governing Law & Venue. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Platform shall be instituted exclusively either in federal court in the United States District Court for Massachusetts in Boston or in the courts of the Commonwealth of Massachusetts in Suffolk County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
20. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PLATFORM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
21. Entire Agreement. This Agreement, our Privacy Policy and any other terms that you are presented with while navigating the Platform and engaging in transactions through the Platform constitute the entire agreement between you and Sparkstone with respect to the Platform and Services, and supersede all prior or contemporaneous understandings and agreements outside of this Agreement or outside of the Platform, whether written or oral, with respect to the Platform and Services.
22. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
5224879.4