Terms and Conditions
Last updated: 13 April 2018
These Terms and Conditions form an agreement between Spark App Pty Ltd ACN 624 656 579 (referred to as “we”, “us” or “our”) and an individual subscribing to be a user of our services (referred to as “you” or “your”). You warrant that you have the legal capacity to accept these Terms and Conditions and form an agreement with us.
We provide a monthly subscription service and an online platform called “Spark” which can be accessed via either the website www.sparkapp.com.au or via an app, which is currently under development (“Site”) (together the “Services”). Your payment of the monthly subscription fee (“Subscription Fee”) will entitle you to register for an account on the Site and to select one experience from the list of experiences displayed on the Site, for you and one guest (“Date”) to attend / participate in per month (“Experiences”). Once you have selected your chosen Experience for each month through the Site and your booking has been accepted, we will issue to you a voucher entitling you and your Date to attend that particular Experience (“Experience Voucher”). The Experience Voucher will be redeemed from the entity responsible for supplying the relevant Experience (“Experience Provider”) at the time of the Experience. We are not responsible for providing the Experiences; we are a platform which facilitates booking Experiences. Each Experience is provided to you by the Experience Provider directly and once the Experience Provider has accepted the booking and you have received an Experience Voucher for an Experience, you will be contracting directly with the relevant Experience Provider for that Experience. Each Experience may have its own terms and conditions which we will publish in the Site.
In order to use the Services you must agree to these Terms and Conditions. By registering for an account and providing us with your payment details you accept these Terms and Conditions and will be legally bound by these Terms and Conditions.
Trial users of the Services, that is those individuals who do not register for an account and sign up to be a monthly subscriber on the Site but rather utilise the offer on the Site to pay a one off fee (being an amount equal to one month’s Subscription Fee), to trial the Services and schedule one Experience only (“Trial Users”), are also required to agree to these Terms and Conditions in order to use the Services. By registering as a Trial User on the Site, you accept these Terms and Conditions and will be legally bound by these Terms and Conditions except to the extent that they are specific to a monthly subscriber.
If you have any questions or feedback on the Services, please contact our support team at firstname.lastname@example.org (“Support Team”).
Use of Services
To use the Services you are required to register for an account on the Site (“Account”).
To register for an Account, you must be at least 18 years old and a resident of Australia.
Account registration requires you to provide certain information, including without limitation, personal information, payment information, email and a username and password (“User Information”).
You warrant that all information that you have provided to us for registration is true, accurate and up-to-date in all respects. If your details or information changes you must notify us immediately. You can update or correct your details or information at any time via the Site or by contacting our Support Team.
You are required to keep your User Information confidential. You are responsible for all activity that occurs under your Account. If you suspect that there has been unauthorised access to your Account, please contact our Support Team immediately.
You are responsible for your use of the Services and your own behaviour as a user of the Services.
You must not:
use the Site on behalf of any other individual or entity, although booking an Experience for you and your Date is completely fine (in fact, it is what we do);
use the Services for any unlawful purpose or in breach of any law;
use the Services in any way that interrupts, damages, impairs or makes the Services less efficient;
transfer any files which contain viruses, trojans or other harmful programs via the Site;
access the accounts of other users of the Services;
penetrate any of our security measures; or
decipher, decompile, disassemble or reverse engineer any of the code or software comprising in or in any way making up a part of the Site;
use the Services to disseminate any content which is defamatory, obscene, or may have the effect of being harassing, threatening or abusive to an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability or otherwise;
engage in any screen scraping or data acquisition and consolidation;
use the Services to advertise or promote third party or your own products or services;
perform any act which may damage our reputation or bring our business into disrepute; or
advocate, encourage, or assist any third party in doing any of the above.
You are responsible for obtaining the necessary telecommunication and data services, and acquiring and updating compatible devices, to access and use the Services.
Nature of the Services
We are not an Experience Provider. We do not own, provide, control, manage, deliver, or supply any Experiences. Each Experience Provider is responsible for the relevant Experience. Except as expressly set out in these Terms and Conditions, we are not acting as an agent of any Experience Provider.
We do not have any control over and, subject to clause 19.1, do not guarantee:
the existence, quality, safety or suitability of any Experience;
the reliability, accuracy or completeness of any description of an Experience; or
the actions or inactions of any Experience Provider in relation to an Experience.
While we think our Experience Providers are great and offer high quality Experiences, you should always exercise due diligence and care when deciding whether to book any Experience.
Experience Bookings and Vouchers
Subject to these Terms and Conditions, once you have registered your Account you will be entitled to select and book Experiences from the list of Experiences displayed on the Site each month for the duration of your subscription.
Once you have selected your chosen experience and the booking has been confirmed, we will issue to you an Experience Voucher to be redeemed by you from the Experience Provider at the time of the Experience. Each Experience Voucher entitles you and your Date to attend and participate in the Experience you have selected and booked through the Site.
Each Experience Voucher will be issued to you electronically by email to the email address registered to your Account.
Each Experience Voucher will contain a unique code and may only be used once.
For each month for which you have paid the Subscription Fee, you must book the Experience for that month, on or before 5.00pm on the last day of that month (“Cut-Off Time”). If you fail to book an Experience by the Cut-Off Time, you will forfeit your entitlement to book an Experience for that month. A booking may be made for an Experience which is to be attended in a future month provided you make that booking on or before the Cut-Off Time.
No entitlement to book an Experience will be carried over to a future month and you will not be entitled to any refund of any Subscription Fee if you fail to book an Experience by the Cut-Off Time for a month for which you have paid the Subscription Fee.
Each Experience Voucher issued to you by us is sold by us to you as agent for the Experience Provider. Once you have redeemed the Experience Voucher, we will make payment of the relevant fee to the Experience Provider. You are not required to pay the Experience Provider in addition to redeeming your Experience Voucher, although, there may be situations in which your Experience Voucher is cancelled. Please check the terms and conditions of each Experience Provider. Your monthly Subscription Fee is non-refundable except where required by law.
We do not provide Experiences and we have no responsibility for any Experience or services provided or not provided by the Experience Providers or any other party.
The Experience Providers provide services directly to you.
You may choose to buy goods and services in addition to an Experience from an Experience Provider. That is a matter between you and the Experience Provider.
Each Experience Provider is subject to the Australian Consumer Law in respect of the Experience provided by it; including that the Experience was provided with due skill and care and complied with the description made to the purchaser at the time of the sale.
To the extent permitted by law, we make no warranty or representation regarding the standard of any Experience or service to be provided by any Experience Provider or any other party. We do however require our Experience Providers to comply with the law and not engage in misleading and deceptive conduct and you as a consumer will have rights against an Experience Provider that does not comply with its obligations.
All Experience Vouchers are issued subject to the relevant Experience Provider’s terms and conditions and these Terms and Conditions.
Each Experience Provider may have their own terms, conditions and policies in respect of cancellations, rescheduling and exchanges which you will be required to comply with in respect of the Experience to be provided by that Experience Provider. These will be published on the Site and you should read them before you select an Experience.
Each Experience Provider, on confirmation of the booking by the Experience Provider and on us issuing to you the Experience Voucher, will provide to you the final details about the Experience. The Experience Provider will notify you of any subsequent changes. Your attendance at and participation in each of the Experiences is conditional upon your acceptance of the Experience Provider’s terms and conditions at the time you select the Experience.
Experience session lengths and orders of events which may be noted on the Site in respect of an Experience, are approximate only and are given by Experience Providers as a guide to the total time you will be at their venue. Any itinerary provided to you is indicative only and the order of events may be subject to change.
Certain Experiences may be subject to minimum or maximum age, weight, health or other restrictions. These restrictions are outlined on the relevant Experience information page on the Site. Please read the information carefully. It is your responsibility to understand the restrictions prior to booking an Experience. If you are later forced to cancel an Experience due to restrictions, you may be liable for charges by the Experience Provider or you may forfeit your Experience Voucher altogether.
Availability of Experiences
All Experiences are offered by the Experience Providers and are subject to availability.
Bookings are not confirmed until the Experience Provider has accepted the booking and you have received a confirmation of the booking and the Experience Voucher from us.
Some Experiences display availability dates on the Site. You should note that such dates are guidelines only and are subject to change. We suggest that if you plan to book an Experience at short notice, you contact us to ensure there is availability before attempting to book the Experience.
All Experiences are subject to removal from the Site at any time without notice.
If an Experience already booked by you is removed from the Site and the Experience Provider is no longer honouring Experience Vouchers, you will be entitled to book a different Experience through the Site for the relevant month.
Contact Details provided to Experience Providers
It is your responsibility to ensure your contact details are correct and up-to-date when you book each Experience through the Site. Failure to do so may result in loss or incorrect delivery of the Experience Voucher and as the Experience Provider will be expecting you at the time and on the date specified in the booking, you may end up forfeiting your Experience Voucher (subject to the Experience Provider’s terms and conditions and policies).
Some Experiences are weather dependent. You will be provided with the Experience Provider’s details at the time of booking so you can call to confirm whether adverse weather affects your booked Experience. We suggest you call on the day of your Experience if you have any doubt about the weather suitability.
Any re-booking of an Experience required as a result of adverse weather will be made in accordance with the Experience Provider’s terms and conditions.
Complaints in respect of an Experience
If you have any problems or complaints in respect of any Experience you should draw this to the relevant Experience Provider’s attention immediately so that issues can be addressed at the time the issue arises, where possible.
If you have any problems or complaints in respect of any Experience and the problem or complaint is not addressed by the Experience Provider to your satisfaction, you should notify the Support Team of the problem or complaint.
Some of the Experiences may be considered dangerous. You should be aware of the risks involved prior to booking any Experience.
Experience Providers warrant that they maintain appropriate public liability insurance for all risks associated with Experiences.
It is your responsibility to enquire with the relevant Experience Provider or any other party as to the need for you or your Date to acquire your own insurance cover in respect of any Experience.
Links to Third Party Websites
The Site often includes hyperlinks to websites operated by third parties. Links to third party websites include, without limitation, links to the websites of Experience Providers. Those third party websites do not form part of the Site and are not under the control or the responsibility of us.
When you link to those websites, you leave the Site and do so entirely at your own risk. We make no warranties as to the accuracy or reliability of the information contained on any third party websites, and we disclaim all liability and responsibility for any direct or indirect loss or damage which may be suffered by you through relying on anything contained on or omitted from such third party websites.
Third Party Content
The Site contains content provided to us by third parties, including, without limitation, Experience Providers (“Third Party Content”).
The descriptions and information in respect of each Experience contained in the Site and the photographs used to illustrate Experiences are provided to us by the Experience Providers. We require each Experience Provider to keep the information about each Experience up-to-date however, the content or format of some Experiences may change from time to time and photographs are used as an indication only.
We do not monitor or make inquiries in relation to Third Party Content except in response to queries or complaints.
Subject to clause 19.1, we are not responsible for, do not endorse and make no representations or warranties to you or to any other user, either expressly or impliedly, as to the reliability, accuracy or completeness of the Third Party Content or any information provided through the Services. You rely on Third Party Content at your own risk. We recommend that you use your discretion when acting on Third Party Content and information received through the Services.
The current Subscription Fee payable will be as quoted on the Site as updated from time to time.
Except for the Trial Users, the Subscription Fee is payable on a monthly basis.
We reserve the right to change the Subscription Fee at any time. For any change to the Subscription Fee we will provide you with notice by email no less than 60 days prior to the changes taking effect. As set out in clause 16.2, you may terminate your subscription with us at any time.
The Subscription Fee includes taxes including GST where applicable.
Payment of the Subscription Fee must be made by Master Card or Visa credit card or debit card, or any other payment method listed on the online checkout page of the Site.
Except for the Trial Users, the Subscription Fee will be charged to your nominated payment method on the first business day of each month.
You are required to ensure that your accepted payment method details are valid and up-to-date at all times.
You are required to ensure that sufficient funds are available at the time of payment processing to pay the Subscription Fee.
We reserve the right to charge a transaction fee to recover the costs incurred by us for card payments. Transaction fees may vary dependent on the payment method chosen. If transaction fees apply, the applicable fees will be displayed to you at the time you subscribe to the Services or if they later become payable, we will provide you with notice by email no less than 60 days prior to the fees becoming payable.
In the event of a payment failure resulting in the Subscription Fee not being paid to us on an attempt to us to process payment, which may be due to insufficient funds, incorrect or outdated payment information or transaction disputes, we will re-attempt to process the payment. We reserve the right to attempt payment using the nominated payment method to recover any outstanding amounts.
We are not liable for any charges you incur as a result of any payment failure. If we incur an expense due to a payment failure, we reserve the right to seek reimbursement from you for such expense.
We reserve the right to suspend or terminate your Account in the event the Subscription Fee becomes outstanding.
Storage of Payment Information
We do not collect or store payment information. All payment information is collected and stored by the applicable third-party in order to be processed as required. We never permanently store complete debit/credit card details.
All online debit/credit card transactions performed through the Site are through secured payment gateways. We currently use Stripe payment gateway for our online payment transactions.
Payments will appear on your bank statement as “Spark” or “Spark App Pty Limited” in your account.
You acknowledge that we may pursue and attempt to collect any outstanding amounts as a result of any declined and outstanding payments on your Account. You agree and allow us to contact you to discuss those failed payments.
If we are unable to receive or gain any satisfactory guarantee for payment, your name, contact information, and order details may be referred to an external debt collection agency. You will be liable for any fees or charges incurred as a result of this referral.
Suspected Fraud Accounts
We reserve the right to investigate all accounts where we suspect incorrect or fraudulent activity has occurred.
We reserve the right to terminate your Account following any such investigation.
Term and termination
These Terms and Conditions commence from the date that these Terms and Conditions are accepted by you, and will continue until terminated in accordance with this clause or any other clause of these Terms and Conditions. For Trial Users, these Terms and Conditions continue until the Experience is complete, unless you become a monthly subscriber.
You may terminate your subscription with us and these Terms and Conditions at any time by closing your Account by email to the Support Team or by following the instructions on the Site.
The cut-off time for Account adjustments, including changes and cancellations, is 11.59pm Sydney time on the 25th day of each month, and updates to your Account must be submitted by this time to take effect for the next subscription month.
We may terminate these Terms and Conditions and close any Account that you have with us, for any reason, by giving you 30 days’ notice in writing.
We may terminate these Terms and Conditions and close any Account that you have with us if you commit a material breach of these Terms and Conditions and fail to remedy such a breach within the reasonable time specified in a notice provided to you by us notifying you of the breach. We will give you 7 days’ notice in writing of any such termination.
We may suspend or restrict your access to the Services at any time without notice if we have reasonable grounds to believe you have breached any of these Terms and Conditions. This does not limit our right to take any other action against you that we consider appropriate to defend our rights or those of any other person.
Whilst you hold an Account with us, we grant you a royalty-free, non-exclusive and non-transferable licence to use the Site solely for the purpose of using the Services in accordance with these Terms and Conditions (“IP Licence”).
You have no right to sub-licence the IP Licence.
You acknowledge and agree that the IP Licence grants you no rights in relation to our copyright, trademarks or other intellectual property rights, including without limitation, rights in and to logos, graphics, photographs, animations, videos, software, applications and website, or the intellectual property of our partners (including, without limitation, Third Party Content), other than the IP Licence.
We are committed to protecting your privacy.
Consumer guarantees, limitation of liability and disclaimers
The Services come with consumer guarantees under the Australian Consumer Law in the Consumer and Competition Act 2010 (Cth) that cannot be excluded by these Terms and Conditions. Nothing in these Terms and Conditions affects your statutory rights as a consumer. However, we make no express warranties beyond the consumer guarantees.
To the extent permitted by law, our total liability for any loss or damage that you suffer or incur from our failure to comply with consumer guarantees is limited, at our absolute discretion, to us supplying the Services to you again or us paying to you the cost of having the Services supplied again.
Subject to clause 19.1, we provide the Services to you on an “as is” and “as available” basis. We do not represent, warrant or provide any guarantees in relation to the availability or uptime of the Services, nor do we represent, warrant or provide any guarantee that your access to or use of the Services will be uninterrupted, error free or that there will be no delays, failures, errors, omissions or loss of transmitted information, that no viruses or other contaminating or destructive properties will be transmitted, or that no damage will occur to your computer system. The Services are subject to limitations, delays and other problems which are inherent in the use of internet and electronic communications. We accept no responsibility for any delays, delivery failures or losses or damages which you may suffer as a result of such problems.
You acknowledge and agree that we are not liable for:
your actions or inactions in your capacity as a user of the Services;
the actions or inactions of any other users of the Services any Experience Provider or any third party;
loss or damage contributed to or caused by any actions or inactions of any Experience Provider or any third party;
loss caused by our breach of these Terms and Conditions which does not arise in the natural and ordinary course of events, or which exceeds $1,000, although we acknowledge that this limitation will not apply if and to the extent that we are also liable for that loss caused by our breach of the consumer guarantees under the Australian Consumer Law;
loss of revenue, profit, goodwill, reputation, opportunity, data or information arising out of your access and use, or inability to access or use, the Services; or
a failure to provide the Services or meet any of our obligations under these Terms and Conditions where such failure is due to events beyond our reasonable control, including without limitation, a network or third party software failure.
You acknowledge and agree that we have limited control over the nature and content of the information that is transmitted or received by you or other users of the Services. We do not monitor such content in the usual course of business, and to the extent permitted by law, we will not be liable for such content.
You are liable for and agree to indemnify us against all claims, liabilities, penalties, suits and actions, resulting directly or indirectly from:
any information that you have provided to us which is false, misleading, or otherwise inaccurate or incomplete; or
a misuse of the Services by you in breach of clause 1.7.
This clause 20 will survive the termination of this Agreement.
If you wish to:
provide us with any feedback;
make a complaint in relation to the Services;
make a claim under these Terms and Conditions; or
make a complaint about other users of the Services,
please get in touch with our Support Team.
Each party agrees to act reasonably in seeking to resolve any disputes arising under these Terms and Conditions.
Entire Agreement. These Terms and Conditions and any document expressly referred to in these Terms and Conditions form the entire agreement between you and us and supersede any prior written agreement between you and us.
Relationship of the parties. No joint venture, partnership or agency relationship exists between the parties.
Assignment. These Terms and Conditions are personal to you. You may not transfer your rights or obligations under these Terms and Conditions to anyone else. However, you acknowledge and agree that we may transfer our rights or obligations or sub-contract our obligations under these Terms and Conditions to another legal entity provided that this will not adversely affect the standard of service you receive under these Terms and Conditions. As set out in clause 16.2, you may terminate your subscription with us at any time.
No waiver. Any delay by either party in exercising a right under these Terms and Conditions does not operate as a waiver of that right. If either party breaches these Terms and Conditions (Breaching Party) and the other party (Non-Breaching Party) takes no action against the Breaching Party, the Non-Breaching Party will still be entitled to take action in any other situation where the Breaching Party breaches these Terms and Conditions.
Severability. If any part of these Terms and Conditions is disallowed or found to be ineffective by any court or regulator, the other provisions shall continue to apply.
Amendment. We may amend these Terms and Conditions from time to time, in which case we will give you reasonable notice (and no less than 30 days) either by email or via the Site. Your continued use of the Services following such amendments constitutes your acceptance of the amendments and your consent to be bound by these Terms and Conditions as amended. As set out in clause 16.2, you may terminate your subscription with us at any time.
Notices. Any notice to be delivered by us to you under these Terms and Conditions will be delivered to your email address provided to us on registering your Account and as updated by you from time-to-time. Any notice delivered by you to us under these Terms and Conditions will be delivered by you emailing our Support Team.
Governing law. These Terms and Conditions are governed by the laws of New South Wales and each party submits to the non-exclusive jurisdiction of the courts operating in New South Wales.