1 These terms
1.2 Why you should read them. Please read these Terms carefully before you subscribe and/or register for Sparkyard. These Terms tell you who we are, how we will provide Sparkyard and the Content to you, how you and we may change or end our contract, what to do if there is a problem and other important information. If you have any questions about these Terms, please contact us to discuss.
1.3 Are you a business customer or a consumer? In some areas you will have different rights under these Terms depending on whether you are a business (including all schools (whether state or private), churches, drama groups and other organisations) or a consumer. You are a consumer if:
(a) you are an individual; and
(b) you are signing up for Sparkyard wholly or mainly for your personal use (not for use in connection with your trade, business, craft or profession).
Provisions specific to consumers only are in green and those specific to businesses only are in orange.
1.4 If you are a business customer this is our entire agreement with you. If you are a business customer these Terms constitute the entire agreement between us in relation to Sparkyard and the Content (subject to clause 4.2). You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in these Terms and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
1.5 "Writing" includes emails. When we use the words "writing" or "written" in these Terms, this includes emails.
1.6 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.
2 Information about us and how to contact us
2.1 Who we are. We are Out of the Ark Limited, a company registered in England and Wales. Our company registration number is 4399498 and our registered office is at 62 The Street, Rustington, West Sussex BN16 3NR, United Kingdom (please note this is not the same as our contact address (which you can find below) and correspondence should not be sent here). Our registered VAT number is GB666252620.
2.2 How to contact us. You can contact us by telephoning our customer service team at +44 (0) 20 8481 7200 or by writing to us at firstname.lastname@example.org or Out of the Ark Limited, Units F1 & F2, Kingsway Business Park, Oldfield Road, Hampton, Middlesex TW12 2HD, United Kingdom. You can also use our online chat function, available in our help centre, here.
2.3 How we may contact you. If we have to contact you we will do so by telephone or by writing to you at the email address or postal address you provided to us when you registered.
3 Subscription and payment
3.1 In this clause 3, you and your means the individual, entity or organisation that purchases a subscription (or on whose behalf a subscription is purchased) to Sparkyard (Account Holder).
3.2 Subscribing to Sparkyard. You must subscribe to Sparkyard via our website, sparkyard.com (Website). In order to subscribe, you will need to create a User Account in accordance with clause 5.1.
3.3 How we will accept your subscription. Our acceptance of your order for a subscription to Sparkyard will take place when we email you to confirm your subscription, at which point a contract will come into existence between you and us.
3.4 If we cannot accept your subscription. If we are unable to accept your order for a subscription to Sparkyard, we will inform you of this in writing and will not charge you. This might be because, for example, Sparkyard is unavailable or because of unexpected limits on our resources which we could not reasonably plan for or because we have identified an error in a price or description or because you have not provided all the information necessary to activate your subscription or User Account or because of payment issues.
3.5 Free trials. From time to time we may, at our sole discretion, offer a free trial for use of Sparkyard for a specified period (Trial Period). Free trials are only available for new Sparkyard users and we reserve the right to cancel any free trial subscriptions immediately if we believe that you have, or the entity or organisation that you represent has, previously subscribed to Sparkyard. These Terms will apply during any Trial Period, but please note that the functionality of Sparkyard (such as the availability of certain Content and/or the number of Authorised Users (see clause 3.7) available to you) may be restricted during a Trial Period. At the end of a Trial Period if you wish to continue your use of Sparkyard you must purchase a subscription through the Website in accordance with these Terms. We reserve the right to cancel free trials at our sole discretion.
3.6 Subscription fees. The subscription fees for Sparkyard are detailed here on the Website. Who you are / the nature of your organisation, the size of your organisation (if applicable), and whether you are located inside or outside the UK will determine which subscription package you will be eligible for.
If you are a UK school, you will be offered a subscription package on the basis of the number of pupils attending your school at the beginning of the Subscription Period (see clause 3.10). If you are a UK state school, where possible we will obtain this information from the Department for Education. You will be asked to self-declare this information if you are a school that is not a UK state school, or if this information is not otherwise available to us. Please contact us using the details at clause 2.2 above if the subscription package you have been offered is incorrect for the number of pupils actually attending your school at the beginning of the Subscription Period. If the number of pupils at your school changes during a Subscription Period, meaning that a different subscription package is needed for the number of pupils actually attending your school, please let us know as soon as possible before the last day of your Subscription Period. We may at any time seek to verify the number of pupils attending your school with the Department for Education or other relevant body, and/or ask you to self-declare this information.
Regardless of whether your entity or organisation is part of a group or network (such as, if you are a school, a multi-academy trust), a separate subscription will be required and an additional subscription fee will be due in respect of each individual entity or organisation within the group or network.
If you are still unsure about which subscription package is correct for you and/or your entity or organisation, please contact us using the details at clause 2.2 above.
We reserve the right to update the subscription fees and subscription packages that we offer at any time, at our sole discretion. Any change of the subscription fees will be effective as of your next Subscription Period.
We take all reasonable care to ensure that the subscription fees advised to you are correct. Please let us know if you think there is a pricing error on our Website or anywhere else. In the event of a pricing error, we reserve the right to charge the correct subscription fee. However, you may then have a right to end the contract under clause 8.4(b).
3.7 Authorised Users. Each subscription package allows for a maximum number of individuals authorised to create User Accounts and access Sparkyard under your subscription (Authorised Users), details of which will be confirmed during the subscription process and then specified in your User Account. You must issue an invitation from within your User Account to anyone that you would like to be an Authorised User under your subscription. Once they have accepted this invitation and created a User Account (if they do not already have one) (see clause 5.1(a)) they will have access to Sparkyard. Only staff from within your school, entity or other organisation and/or as otherwise permitted by us from time to time may be Authorised Users. If you would like to purchase access for one or more additional User Accounts under your subscription, please contact us using the details at clause 2.2 above.
3.8 Discount Codes. From time to time we may make discount codes available, which can be used when paying for your subscription to Sparkyard (see clause 3.11) in order to pay a reduced fee (Discount Codes). Discount Codes may be subject to eligibility criteria, and we reserve the right to reject a Discount Code and charge the applicable full subscription fee, and/or cancel your current subscription, if we believe that you are not, or the entity or organisation that you represent is not, eligible for the Discount Code you have used. Any Discount Code may not be copied, borrowed or shared with third parties without our consent. At the end of any Subscription Period to which a Discount Code applies, your subscription will automatically renew (see clause 3.12) at the applicable full subscription fee, unless you cancel your subscription in accordance with these Terms (see clause 3.13), or submit a new valid Discount Code for the next Subscription Period, before your renewal date.
3.9 Promotional offers. From time to time we may offer a promotional subscription fee for use of Sparkyard for a specified period (Promotional Period). These Terms will apply during any Promotional Period. At the end of any Promotional Period, your subscription will automatically renew (see clause 3.12) at the applicable full subscription fee for a full Subscription Period, unless you cancel your subscription before the end of the Promotional Period in accordance with these Terms (see clause 3.13). We reserve the right to cancel promotional offers at our sole discretion.
3.10 Subscription Period. Subscriptions are purchased on an annual basis (Subscription Period). Your first Subscription Period will begin on the date you purchase a subscription to Sparkyard (ignoring any earlier Trial Period or Promotional Period, if applicable). Any active Trial Period or Promotional Period will automatically come to an end when you purchase a subscription. When your subscription renews (see clause 3.12), subsequent Subscription Periods will begin on the relevant anniversary of the beginning of the first Subscription Period.
3.11 Paying for your subscription. We accept payment by credit or debit card, bank transfer, or direct debit. If you have a Discount Code (see clause 3.8) you must provide this before making payment. If you are a UK state school we may, at our discretion, allow you to activate your Sparkyard subscription without initial payment, in which case payment will be due within 15 days of our invoice. If a purchase order number is required in order for our invoice to be paid you must provide this when purchasing your subscription. For all other subscribers, subject to clause 3.5, you must make payment in full in order to activate your subscription and access Sparkyard and the Content.
3.12 Automatic renewal of your subscription. Your subscription allows you to use Sparkyard continuously. It operates on a rolling basis and will automatically renew for a further Subscription Period at the then current price applicable to you unless you cancel your subscription on or before the last day of your Subscription Period (see clause 3.13). Payment for subscription renewals will be via the original payment method used to purchase the subscription (where available), unless you amend your payment method through your User Account, and will be due upon renewal or within 15 days of any invoice issued by us. It is your responsibility to ensure there is a valid and up to date payment method saved to your User Account, and we reserve the right to issue an invoice in respect of renewal of your subscription in the absence of such information.
3.13 Cancelling your subscription. Subscriptions to Sparkyard are non-refundable. You may cancel your subscription at any time within your User Account. Upon cancellation of your subscription, you and all Authorised Users associated with your subscription will still be able to access Sparkyard for the remainder of the current Subscription Period, Trial Period or Promotional Period, provided that you have already paid for it in full (where applicable). You will not receive a refund for the remainder of your Subscription Period or Promotional Period.
3.14 Our right of set-off if you are a business customer. If you are a business customer you must pay all amounts due to us under these Terms in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
3.15 We can charge interest if you pay late. If you do not make any payment to us by the due date we may charge you interest on the overdue amount at the rate of 3% a year above the base lending rate of Barclays Bank PLC from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with any overdue amount. If you think an invoice is wrong please contact us promptly to let us know. You will not have to pay any interest until the dispute is resolved. Once the dispute is resolved we will charge you interest on correctly invoiced sums from the original due date.
4 Out of the Ark
4.1 We are part of the Out of the Ark group. By signing up for Sparkyard you will automatically create an account on outoftheark.co.uk (OOTA Website). The login details for that account will be the same as your login details on the Website. If you already have an account on the OOTA Website you will be able to use the same login details on the Website, subject to these Terms and you subscribing, or otherwise having access to an active subscription, to Sparkyard.
4.2 You can purchase digital and physical products via the OOTA Website. Any such purchases (as well as your use of the OOTA Website generally) will be governed by the terms and conditions on the OOTA Website (which can be found here (Terms & Conditions) and here (Words on Screen™ Player Terms & Conditions)), regardless of whether we (in our absolute discretion) also provide access to those purchases via Sparkyard.
5 Using Sparkyard
5.1 User Account.
(a) To use Sparkyard, you must create a user account through the Website (User Account) and either purchase a subscription (see clause 3) or register as an Authorised User under an existing subscription for your organisation (you will need an invitation from the Account Holder in order to do this (see clause 3.7)). To create a User Account, you will be required to provide certain information including your email address and (if applicable) details about your organisation. You confirm that all the information you provide is and will continue to be complete and accurate and that you will update us of any changes. If you do not provide all of the information that we require, you will not be able to use Sparkyard. Unless you are the Account Holder (in which case a contract will come into existence between you and us when we email you to confirm your subscription (see clause 3.3)), a contract will come into existence between you and us when you create a User Account.
(b) It is your responsibility to keep your User Account credentials (including your password) confidential and secure. You agree not to share your User Account credentials with any other individuals, or to allow any other individuals to access your User Account (with or without your permission), in each case whether or not such individuals are part of your organisation. We are not responsible for any loss or activity that occurs on or by your User Account, including loss or activity that occurs as a result of the unauthorised use of your User Account due to your failure to keep your User Account credentials secure.
(c) If you believe someone has accessed or disclosed (as applicable) your User Account, personal information or credentials you must immediately notify us in writing using the email address detailed above, and use best efforts to change your password as soon as possible.
(d) If you are not the Account Holder, your access to Sparkyard will cease or be suspended if the Account Holder’s access ceases or is suspended. Your access may also cease or be suspended as otherwise set out in these Terms.
5.2 How you may use Sparkyard. In return for your agreeing to comply with these Terms, and in each case provided that you have the appropriate licence(s) in place (see clause 5.4), you may:
(a) stream and/or access the songs (with lyrics displayed or audio-only) and other Content on Sparkyard only:
(i) in the establishment of the Account Holder for the purposes of teaching, performance or general musical enjoyment;
(ii) in a public venue for the purposes of teaching, performance or general musical enjoyment;
(iii) in a private venue for preparation purposes related to teaching or a performance;
(b) share individual items of Content (using website links or other methods permitted within Sparkyard) with the pupils attending or young people that are members of or enrolled with your organisation (Students) for use within the establishment of the Account Holder or in a private venue for the purposes of study or preparation for a performance. It is your responsibility to ensure that Students do not share such Content or use it for any purpose other than as permitted under this clause and subject always to the restrictions in clause 5.3;
(c) print and copy any Content that is provided through the Website in PDF or similar format (including lyrics, scores and teaching materials) for the purposes of teaching or performance (or preparation for teaching or performance);
(d) record and/or film your Students performing Content (provided that such performance is in accordance with these Terms). Sparkyard backing tracks or vocal tracks may be used in the background as an accompaniment to the Students’ performance. Audio or video recordings of any such performances (Recordings) must only be used for strictly non-commercial purposes; and
(e) upload Recordings to:
(i) a restricted access platform (such as a school intranet) for rehearsal purposes or for sharing with family and friends of your Students (provided that you use reasonable efforts to prevent copying of the Recordings); or
(ii) public websites (such as your organisation’s website, YouTube, Facebook, Vimeo and SoundCloud), provided that:
(A) “Out of the Ark Music” is included prominently as a credit; and
(B) an inbound link to the Website or the OOTA Website is provided,
and we may require by written notice any such Recordings to be taken down from any such platform or website at any time, and you will immediately procure the same.
5.3 Restrictions on use. You agree that you will:
(a) comply with these Terms and all applicable laws;
(b) have in place (or procure that your entity or organisation has in place) at all times the relevant licences required for your intended use of Sparkyard and the Content (see clause 5.4);
(c) not upload Content to public websites (except as audio accompaniment within a Recording (see clause 5.2(d)));
(d) not share Content with, or permit access to Sparkyard by, any other entity or organisation or their staff or students, or any individual who is not otherwise authorised to access Sparkyard and/or the Content in accordance with these Terms, unless you are the Account Holder and in your usual course of business you routinely visit other entities or organisations to provide teaching or training (for example, if you are a peripatetic music teacher), in which case you may use Sparkyard in those contexts for that specific purpose, provided the teaching or training is delivered by you;
(e) not create copies of Content except in accordance with clauses 5.2 and 5.4;
(f) not use Sparkyard or the Content in a manner that may infringe our intellectual property or other rights, or the intellectual property or other rights of any third party; and
(g) not use Sparkyard or the Content in any way except as expressly authorised under these Terms.
5.4 Licensing requirements. Depending on the nature of your entity or organisation (if applicable) and your intended use of Sparkyard and the Content, you may be required by law to obtain certain licences. We have set out in this clause some information and links that you may find helpful in determining what licence(s) you may require and what reporting obligations may attach to those licences, but please note that this information is non-exhaustive. It is your responsibility to ensure that all necessary licences are in place before you begin using Sparkyard and the Content (including for any Trial Period and/or Promotional Period), and that you comply with your obligations under those licences.
(a) Licensing bodies. Your use of Sparkyard and the Content may require a licence from some or all of the following (or their foreign equivalent outside of the UK, where applicable):
(i) the Copyright Licensing Agency (CLA), which licenses the copying and sharing of certain content;
(ii) Printed Music Licensing Limited (PMLL), which licenses the photocopying of printed music and digitally downloaded printed music;
(iii) Christian Copyright Licensing International (CCLI), which provides licences to churches and schools for various uses of certain content;
(iv) the Performing Right Society (PRS), which licenses performances of music in a public venue;
(v) us, Out of the Ark Limited, if you would like to broadcast a performance of any of the Content or produce a CD, DVD, ”memory stick” or other physical copies of a Recording (please contact us using the details at clause 2.2 above regarding any such usage), or if you are performing a musical or nativity published by us (in which case a Performance Licence must be obtained from us, see here or please contact us using the details at clause 2.2 above).
(b) Schools. Most schools in the UK already have the following licences in place:
(i) an Education Licence from the CLA. For more information, see here;
(ii) a Schools Printed Music Licence (SPML) from PMLL. For more information, see here; and
(iii) a Collective Worship Copyright Licence (CWCL) and a Collective Worship Music Reproduction Licence (CWMRL) from CCLI. For more information, see here.
These licenses allow Account Holders and Authorised Users in UK schools to use the Content within the school’s normal educational activities. More information about the specific activities permitted under each licence and how to obtain or manage them can be found by following the relevant links above.
(c) Reporting obligations. Account Holders are required to report the following to the appropriate third-party collecting society in the UK or other applicable country:
(i) all displaying of song lyrics in assemblies and collective worship;
(ii) all printing and copying (including digital copying) of music scores and lyrics;
(iii) all printing and copying (including digital copying) of Content other than music scores and lyrics (such as teaching materials, scripts, lesson and assembly plans);
(iv) all performances of Content in public;
(v) any other usage required to be reported by the applicable collecting society.
The report generated by Sparkyard that is available in your User Account will help you do this by collecting the usage data for you. The usage then needs to be reported to the appropriate licensing body. For example, all songs reproduced within collective worship or assemblies would need to be reported via CCLI’s on-line reporting platform. Please remember to remove the usage that was for lesson planning from the total count in this report. For more details on how to report and usage examples please see the relevant links above.
5.5 Acceptable use. Sparkyard may only be used in accordance with these Terms and any applicable laws and regulations. You are solely responsible for making sure that your use of Sparkyard does not violate any applicable laws, regulations or third-party rights. We reserve the right to take any appropriate action to protect our legitimate interests (including by blocking your access to your User Account and/or Sparkyard (and the access of any or all of your Authorised Users where you are the Account Holder), terminating any contract with you and/or reporting any misconduct to the relevant authorities) if we suspect you are engaged in any activities that may:
(a) violate any laws, regulations and/or these Terms;
(b) breach any third-party rights; or
(c) cause reputational or other damage to us or any third party.
5.6 f someone else owns the device you are using. If the device you are using to access Sparkyard (Device) is not owned by you, you must have the owner's permission to do so. You will be responsible for complying with these terms, whether or not you own the Device.
5.7 Intellectual property rights. All intellectual property rights in Sparkyard and the Content throughout the world belong to us (or our licensors) and the rights in the Content are licensed (not sold) to you. You have no intellectual property rights in, or to, Sparkyard or the Content other than the right to use them in accordance with these Terms.
5.8 Customer feedback. You are welcome to provide ideas, suggestions, or other feedback in connection with your use of Sparkyard or any Content (Feedback). You can do this by contacting us using the details at clause 2.2 or via any functionality enabling you to do so on the Website, Sparkyard or otherwise. Please note that, unless otherwise expressly agreed by us, Feedback (however provided) is not confidential and may be used by us without restriction and without payment to you.
5.9 Websites we link to. Where the Website contains links to other sites and resources provided by third parties, these links are provided for your information only. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them. We have no control over the contents of those sites or resources.
5.10 Viruses. We do not guarantee that the Website will be secure or free from bugs or viruses. You are responsible for configuring your Device, information technology, computer programmes and platform to access the Website. You should use your own virus protection software. You must not misuse the Website by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Website, the server on which the Website is stored or any server, computer or database connected to the Website. You must not attack the Website via a denial-of-service attack or a distributed denial-of service attack. By breaching this clause, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use Sparkyard will cease immediately.
5.11 Responsibility for users. If you are the Account Holder, you are responsible for ensuring that all users (including Authorised Users) accessing Sparkyard through your subscription comply with these Terms, and in particular this clause 5.
6 Availability of Sparkyard
6.1 Reasons we may suspend Sparkyard. We shall make reasonable efforts to avoid downtime and ensure that Sparkyard is available to you. However, access to Sparkyard may be disrupted from time to time due to necessary maintenance, technical issues, network and system overloads, or events outside of our control.
6.2 Your rights if we suspend Sparkyard. Where possible, we will contact you in advance to tell you that we will be suspending Sparkyard. If you are the Account Holder, if we have to suspend Sparkyard for longer than two weeks in any six month period we may, at our sole discretion, adjust the price or your renewal date so that you do not pay for your subscription while Sparkyard is suspended. If you are the Account Holder, you may also have a right to end the contract under clause 8.4(c).
6.3 We may also suspend your access to Sparkyard if the Account Holder does not pay. If you are the Account Holder and you do not pay the subscription fee when it is due and payable in full (see clause 3.11) and do not make payment within seven days of us reminding you that payment is due, we may suspend your subscription and your use (and the use by any of your Authorised Users) of Sparkyard until you have paid us the outstanding amounts. We will contact you to tell you we are suspending your subscription. As well as suspending Sparkyard we can also charge you interest on your overdue payments (see clause 3.14).
6.4 We shall have no liability if Sparkyard and/or any of Sparkyard’s functionality or Content is unavailable due to: (a) malfunction of the hardware or software of your Device; or (b) your Device not having the required operating system or meeting any other system requirements, as set out on the Website (see here).
7 Changes to Sparkyard
7.1 From time to time, we may make changes to or update the functionality of and/or Content available on Sparkyard at our discretion, without notice to you:
(a) to reflect changes in relevant laws and regulatory requirements;
(b) to implement technical adjustments and improvements, enhance functionality, or address security issues;
(c) to update, add to, or remove Content, and/or to bring you new features, in each case provided that the Content shall always broadly match the description of the subscription that you purchased.
7.2 If any of these changes are significant (as opposed to minor) changes, we will notify you before the changes take effect. If you are the Account Holder, you may, if you wish, cancel your subscription (see clause 3.13 above for details), or you may have a right to end the contract under clause 8.4(a).
8 Your rights to end the contract
8.1 In this clause 8, you and your means the Account Holder.
8.2 You can always cancel your subscription and stop using Sparkyard at any time by following the process set out at clause 3.13.
8.3 Your rights when you end the contract will depend on whether there is anything wrong with your subscription, how we are performing, when you decide to end the contract, and whether you are a consumer or business customer:
(a) If you are a consumer and your subscription is faulty or misdescribed you may have a legal right to end the contract (or to get a fix or replacement, or to get some or all of your money back),see clause 11.2;
(b) If you want to end the contract because of something we have done or have told you we are going to do, see clause 8.4;
(c) If you are a consumer and have just changed your mind about your subscription, see clause 8.5.
8.4 Ending the contract because of something we have done or are going to do. If you are ending the contract for a reason set out at (a) to (d) below we will refund you a pro-rated amount for the remainder of any Subscription Period or Promotional Period that you have subscribed for and paid for and you may also be entitled to compensation. The reasons are:
(a) we have made a significant change, or have told you about a significant upcoming change, to Sparkyard (other than as permitted under clause 7.1) or these Terms (see clause 15.1) which you, acting reasonably, do not agree to;
(b) we have told you about an error in the price or description of Sparkyard and you, acting reasonably, do not wish to keep your subscription;
(c) we have suspended access to Sparkyard for technical or any other reasons, or notify you we are going to suspend it for technical or any other reasons, in each case for a substantial period; or
(d) you have a legal right to end the contract because of something we have done wrong.
8.5 Exercising your right to change your mind within 14 days if you are a consumer (Consumer Contracts Regulations 2013). If you are a consumer then for most products bought online you have a legal right under the Consumer Contracts Regulations 2013 to change your mind within 14 days and receive a refund. As access to the Content (via the purchase of a subscription to Sparkyard) amounts to digital content, you have 14 days after the day we email you to confirm we accept your order, or, if earlier, you have until you start downloading and/or streaming the Content. You do not have a right to change your mind if you have started to download or stream any Content. However, you can still cancel your subscription as set out at clause 8.2. No refunds will be offered for such cancellation.
8.6 Accrued rights and remedies. If you end your contract with us for any reason, this is without prejudice to any other rights and remedies we may have against you.
9 How to end the contract with us (including if you are a consumer who has changed their mind)
9.1 In this clause 9, you and your means the Account Holder.
9.2 Tell us you want to end the contract. If you wish to cancel your subscription, please follow the cancellation process set out at clause 3.13. To end your contract with us for any other reason in accordance with these Terms, please contact us using the details at clause 2.2 above, giving details as to why you would like to end the contract.
9.3 How we will refund you. If you are entitled to a refund under these Terms we will refund you the price you paid for your subscription (or a pro-rated amount thereof, as applicable under these Terms), by the method you used for payment.
9.4 When your refund will be made. We will make any refunds due to you as soon as possible. If you are a consumer validly exercising your right to change your mind then your refund will be made within 14 days of your telling us you have changed your mind.
9.5 Effect on Authorised Users. When you end your contract with us, you and all Authorised Users associated with your subscription will cease to have access to Sparkyard.
10 Our rights to end the contract
10.1 We may end the contract if you break it. We may at our sole discretion end the contract and/or suspend access to, delete or terminate your subscription and/or User Account, without notice at any time if:
(a) you are in breach of these Terms;
(b) the Account Holder does not make any payment to us when it is due and still does not make payment within seven days of us reminding them that payment is due; or
(c) you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to provide Sparkyard to you, for example, an email address.
If you are the Account Holder, the suspension, termination or deletion of your subscription and/or User Account caused by you (including in the circumstances listed above) does not mean that you do not have to pay any subscription fees or other monies due to us, and in such circumstances you will not receive a refund for the remainder of your Subscription Period or Promotional Period (as applicable).
10.2 We may end the contract for another reason. We may at our sole discretion end the contract and/or suspend access to, delete or terminate your subscription and/or User Account, without notice at any time for any reason other than as set out at clause 10.1. We will give you reasonable advance notice of this and, if you are the Account Holder, we will provide a pro-rated refund for the remainder of your Subscription Period or Promotional Period (as applicable).
10.3 We may withdraw Sparkyard. We may write to you to let you know that we are going to stop providing Sparkyard and ending the contract. We will give you reasonable advance notice of our stopping the supply of Sparkyard and, if you are the Account Holder, we will provide a pro-rated refund for the remainder of your Subscription Period or Promotional Period (as applicable).
10.4 Effect on Authorised Users. When we end the contract with the Account Holder, the Account Holder and all Authorised Users associated with their subscription will cease to have access to Sparkyard.
10.5 Accrued rights and remedies. If we end your contract with us for any reason, this is without prejudice to any other rights and remedies we may have against you.
11 If there is a problem with Sparkyard
11.1 How to tell us about problems. If you have any questions or complaints about Sparkyard, please contact us. You can telephone our customer service team at +44 (0) 20 8481 7200 or write to us at email@example.com or Out of the Ark Limited, Units F1 & F2, Kingsway Business Park, Oldfield Road, Hampton, Middlesex TW12 2HD, United Kingdom.
11.2 Summary of your legal rights if you are a consumer. If you are a consumer we are under a legal duty to supply digital content that is in conformity with this contract. See the box below for a summary of your key legal rights in relation to Sparkyard. Nothing in these Terms will affect your legal rights.
Summary of your key legal rights
This is a summary of your key legal rights. These are subject to certain exceptions. For detailed information please visit the Citizens Advice website www.adviceguide.org.uk or call 03454 04 05 06.
Sparkyard comprises digital content. The Consumer Rights Act 2015 says digital content must be as described, fit for purpose and of satisfactory quality:
(a) If your digital content is faulty, you're entitled to a fix or a replacement.
(b) If the fault can't be fixed, or if it hasn't been fixed within a reasonable time and without significant inconvenience, you can get some or all of your money back.
(c) If you can show the fault has damaged your Device and we haven't used reasonable care and skill, you may be entitled to a repair or compensation.
See also clause 8.5.
12 Our responsibility for loss or damage suffered by you if you are a business
12.1 Nothing in these Terms shall limit or exclude our liability for:
(a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982; or
(d) any matter in respect of which it would be unlawful for us to exclude or restrict liability.
12.2 Subject to clause 12.1:
(a) we shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with any contract between us; and
(b) our total liability to you for all other losses arising under or in connection with any contract between us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the amount paid by the Account Holder for the applicable Subscription Period.
13 Our responsibility for loss or damage suffered by you if you are a consumer
13.1 We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these Terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process.
13.2 We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; and for breach of your legal rights in relation to Sparkyard as summarised at clause 11.2.
13.3 When we are liable for damage caused by defective digital content. If defective digital content which we have supplied damages a Device or digital content belonging to you and this is caused by our failure to use reasonable care and skill we will either repair the damage or pay you compensation. However, we will not be liable for damage which was caused by you failing to have in place the minimum system requirements advised by us. Please also see clause 6.4.
13.4 We are not liable for business losses. If you are a consumer we only supply Sparkyard and the Content to you for domestic and private use. If you use Sparkyard and/or the Content for any commercial or business purpose our liability to you will be limited as set out in clause 12.
14 How we may use your personal information
14.1 How we will use your personal information. We will only use your personal information as set out in ourprivacy notice.
15 Other important terms
15.1 We may change these Terms. We may need to change these Terms to reflect changes in law, regulatory requirements or best practice or to deal with additional features which we introduce. Where such changes are significant we will endeavour to give you reasonable advance notice of any change. If such changes are not significant, we will endeavour to notify you of any such changes to these Terms when you next log in to your User Account. If you do not accept the notified changes you should discontinue use of Sparkyard, unless we, at our sole discretion, expressly agree with you that you may continue to use Sparkyard in accordance with the existing terms (but please note that certain new features may not be available to you). If you are the Account Holder you may have a right to end the contract under clause 8.4(a).
15.2 We may transfer this agreement to someone else. We may transfer our rights and obligations under these Terms to another organisation. We will try to contact you to let you know if we plan to do this and if you are a consumer we will ensure that the transfer will not affect your rights under the contract.
15.3 You need our consent to transfer your rights to someone else. You may only transfer your rights or your obligations under these Terms to another person if we agree to this in writing.
15.4 Nobody else has any rights under this contract. This contract is between you and us. No other person shall have any rights to enforce any of its terms.
15.5 If a court finds part of this contract illegal, the rest will continue in force. Each of the clauses of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.
15.6 Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if the Account Holder misses a payment and we do not chase them but we continue to provide Sparkyard, we can still require them to make the payment at a later date or suspend their and their Authorised Users’ access to Sparkyard.
15.7 Which laws apply to this contract and where you may bring legal proceedings if you are a business. If you are a business, any dispute or claim arising out of or in connection with a contract between us or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.
15.8 Which laws apply to this contract and where you may bring legal proceedings if you are a consumer. These terms are governed by English law. You should bring legal proceedings in respect of Sparkyard and/or the Content in the English and Welsh courts, save that if you live in Scotland you can bring legal proceedings in respect of Sparkyard and/or the Content in either the Scottish or the English courts, and if you live in Northern Ireland you can bring legal proceedings in respect of Sparkyard and/or the Content in either the Northern Irish or the English courts.