Terms of Use

Effective Date: February 8, 2019

These terms and conditions of use (“Terms of Use”) are between you, a user of any portion of our Sites (“you” or “your”) and Swell Spark, LLC (together with all related trade names and affliates, “Swell Spark”, “our”, “we”, or “us”).  These Terms of Use govern your interaction with websites controlled by Swell Spark that link to these Terms of Use, including, without limitation, https://swellspark.com/, http://catalystbuild.com/, https://breakoutwaikiki.com/, https://breakoutkc.com/, https://getoutomaha.com/, https://getoutgames.us/, https://bladeandtimber.com/, https://epicaloha.com/ , https://choirbar.com/ (collectively, “Sites”).  This Terms of Use does not apply to Sites controlled by Swell Spark that do not link to these Terms of Use or to third-party websites linked from our Sites.

1. Your Assent to These Terms of Use

You agree to these Terms of Use by accessing or using any of portions of our Sites.  If you do not agree to be bound by all of these Terms of Use, including our Privacy Policy, you should not access or use our Sites.

2. Modifications to These Terms of Use

We reserve the right to modify these Terms of Use at any time, effective upon posting.  You can tell when changes have been made to these Terms of Use by referring to the “Effective Date” legend on top of this page.  We will provide you with advance notice of a major change. For example, we may (i) require that you reaccept the updated version of this Terms of Use, (ii) send you an electronic notification advising of the update to this Terms of Use, (iii) or include a notice on our Sites.  We do not ordinarily provide advance notice of a minor change.

We encourage you to check these Terms of Use every time you visit our Sites.  Your continued use of the Sites and/or utilization of any Site benefits after these Terms of Use have been updated (and after advance notice for a major change) indicates your agreement and acceptance of the updated version of these Terms of Use.

3. Sites’ Content

Our Sites contain text, software, images, photographs, graphics, audio, video, applications, user interfaces, visual interfaces, logos, designs, product names, and technical specifications (“Content”) which are derived in whole or in part from information and materials supplied by us and other sources, and are protected by copyright, trademark, patent, and other applicable laws.  The entire content of our Sites is copyrighted as a collective work under the United States Copyright Laws. Trademarks, logos, and service marks displayed on our Sites are registered and unregistered trademarks of Swell Spark, its licensors or content providers, or other third parties. Any unauthorized use of our intellectual property, including our marks, our copyrighted material, and our trade dress, is strictly prohibited and may be prosecuted to the fullest extent that the law provides.

4. License and Access

We hereby grant you a limited, non-exclusive, revocable, non-assignable, non-transferable authorization to view and use our Sites and any Content contained on this Sites for the purposes expressly authorized by Swell Spark.  Other than the features related to group bookings, our Sites are provided for your personal information and non-commercial use. Nothing in these Terms of Use is intended to, or may be construed as, conferring by implication, estoppel or otherwise any license or other grant of right to use any patent, copyright, trademark, service mark or other intellectual property of Swell Spark or any third party, except as expressly provided in these Terms of Use.  You agree not to remove, obscure, or modify any trademark legend or copyright notice, author attribution, or other notice placed on or contained within any of the Content. All rights not otherwise expressly granted by these Terms of Use are reserved by us.

5. User Restrictions

You agree to use our Sites only for the purposes that are permitted by these Terms of Use.  You may not use our Sites if you are a person prohibited by the laws of the United States of America or any other country from receiving any services via our Sites.  If you are under 18, you may use our Sites only with involvement of a parent or guardian. Your access to our Sites may be revoked by Swell Spark at any time with or without cause.  We may also terminate or suspend your access to all or part of our Sites, without notice, for any conduct that we, in our sole discretion, believe is disruptive to our Sites (or other users) or is in violation of any applicable law or these Terms of Use.

By using and accessing our Sites, you acknowledge and agree that you must NOT:

• use our Sites for any illegal or unauthorized purpose, including using our Sites in a manner that intentionally or unintentionally violates any applicable local, state, national or international law, or for any purpose that infringes any patent, trademark, trade secret, copyright, right of publicity or other proprietary right of any party;
• use our Sites for any purpose that may be deemed by us to be threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy (including stalking), tortious, explicit or graphic descriptions or accounts of sexual acts (including sexual language of a violent or threatening nature directed at another individual or group of individuals) or otherwise in violation of these Terms of Use;
• use our Sites for any purpose that victimizes, harasses, degrades or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability, or use our Sites to harm or exploit minors in any way;
• engage in any activity or use any device, software, or routine that interferes with or disrupts our Sites (or the servers and networks which are connected to our Sites), or a user’s access to our Sites, or our Sites’ operations, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature, or by injecting content or code or otherwise alter or interfere with the way any part of our Sites is rendered or displayed in a user’s browser or device;
• attempt to decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of our Sites;
• impersonate any person or entity, including any employee or representative of us or otherwise misrepresent your affiliation with a person or entity;
• modify, copy, sell, resell, rent, lease, loan, sublicense, redistribute, or create any derivative work of, any portion of our Sites, including any services included on our Sites;
• use any scraper, crawler, spider, robot or other automated means of any kind to access or copy data on our Sites,  deep-link to any feature or content on our Sites, bypass, circumvent, disable or otherwise interfere with our robot exclusion headers or other measures we may use to prevent or restrict access to our Sites or copying of any Content or enforce limitations on use of our Sites and the Content on our Sites;
• collect or store personal data about other users without permission; and
• use our Sites for any purpose that constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as “spamming”), chain letters, any other form of unauthorized solicitation or any form of lottery or gambling.

6. User Content and Feedback

You acknowledge that our Sites may contain Content provided by us or by third parties that are protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or later developed.  Content posted or provided by users via our Sites (collectively, “User Content”) is the intellectual property of the specific users of our Sites who post such User Content. By your submission, posting or delivering of User Content to us, you hereby grant to us a transferable, non-exclusive, worldwide, perpetual, royalty-free license to use, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, sublicense, and create derivative works and compilations incorporating your User Content.  We do not generally monitor or otherwise remove User Content after it is posted on our Sites, except as required or permitted by law or otherwise in our sole discretion. We reserve the right to remove any and all material that we feel is actually or potentially inappropriate, offensive, illegal or harmful in any respect or which may violate these Terms of Use. We are not responsible for the timeliness, deletion, mis-delivery or failure to store any User Content. We do not make any warranties or representations regarding any of the User Content.  We do not approve, endorse, sanction, encourage, verify or agree with any message, profile, or other content posted by our users or otherwise embodied in the Content. You understand and agree that any User Content you submit may be viewed by other users of our Sites.

In addition, should you send us postings, feedback, or data about our Sites or use of our Sites, such as ideas, comments, suggestions, or questions, (collectively, “Feedback”), such Feedback will not be given confidential treatment.  By sending us any Feedback, you agreed to assign and you hereby assign such Feedback (along with any underlying or related ideas, concepts, techniques and know-how) to Swell Spark without charge. You further agree to take all acts reasonably requested by Swell Spark to confirm Swell Spark’s ownership of such items.  As the sole and exclusive owner of such Feedback, Swell Spark will be free to reproduce, copy, use, disclose and distribute the information to others including without limitation incorporating your postings, feedback or data (and any underlying or related ideas, concepts, techniques and know-how) into any products, offerings, services, of Swell Spark, as well as this Site, without any obligation or compensation to you of any kind.

Some of our Sites may allow for a “live chat” feature.  Any communication that you have or content that you submit via the live chat feature is considered to be a User Content and are subject to the same terms and conditions set forth here.  In particular, we don’t guarantee any confidentiality with respect to any live chat.

7. Privacy

Your privacy is important to use.  We designed our Privacy Policy to make important disclosures about how we collect and use your Personal Information.  We encourage you to read our Privacy Policy, and to use it to help you make informed decisions.

8. Third-Party Websites

Our Sites may contain links to, or be accessed through links on, websites managed and operated by or on behalf of independent third-party entities, who are not a part of Swell Spark or agents of us.  We do not have control over such third-party websites or the content of such websites. As a result, we do not have responsibility for the information, misinformation, errors, availability, operation or performance of any such third-party website.

Reference to any product, recording, event, process, publication, service, or offering of any third party by name, trade name, trademark, service mark, company name or otherwise does not constitute or imply the endorsement or recommendation of such by us.  Any views expressed by third parties on the Sites are solely the views of such third party and we assume no responsibility for the accuracy or veracity of any statement made by such third party.

It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature.  If you decide to access any of the third party sites linked to the Sites, you do this entirely at your own risk. You agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused in connection with your use of or your reliance on any of these third party’s presentations, content, goods or services made available through the third party site or resource.

9. Disclaimers

Our Sites may be unavailable from time to time due to mechanical, telecommunication, software, and third-party vendor failures.  Swell Spark cannot predict or control when such downtime may occur and cannot control the duration of such downtime. Reasonable efforts are taken to ensure the accuracy and integrity of information and related materials provided by Swell Spark on our Sites, but Swell Spark is not responsible for misprints, out-of-date information, technical or pricing inaccuracies, typographical or other errors.  Information and related materials are subject to change without notice. As a result, Swell Spark cannot and does not have any liability for such failures or errors. We make no representation that Content included within our Sites are appropriate or available for use outside the United States, and access to them from territories where their contents are illegal is prohibited.

OUR SITES, THE CONTENT, AND ALL INFORMATION, SERVICES AND RELATED MATERIALS IT CONTAINS ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.”  SWELL SPARK AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING THE COMPLETENESS, ACCURACY, CURRENCY, OR ADEQUACY OF, OR THE SUITABILITY, FUNCTIONALITY, AVAILABILITY, OR OPERATION OF OUR SITES OR THE INFORMATION OR MATERIALS IT CONTAINS.  TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SWELL SPARK AND ITS RESPECTIVE AFFILIATES SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO OUR SITES, THE CONTENT AND THE INFORMATION AND MATERIALS CONTAINED ON OUR SITES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, THAT OUR SITES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN OUR SITES WILL BE CORRECTED, THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE.

IN ADDITION, USE OF THE INTERNET IS INHERENTLY UNRELIABLE AND UNSECURE.  THE INTERNET IS SUBJECT TO OUTAGES, COMMUNICATION AND DATA FLOW FAILURES, INTERRUPTIONS AND DELAYS INHERENT IN INTERNET COMMUNICATIONS.  YOU RECOGNIZE THAT PROBLEMS WITH THE INTERNET, INCLUDING EQUIPMENT, SOFTWARE AND NETWORK FAILURES, IMPAIRMENTS OR CONGESTION OR THE CONFIGURATION OF YOUR COMPUTER SYSTEMS, MAY PREVENT, INTERRUPT OR DELAY YOUR ACCESS TO OUR SITES.  SWELL SPARK IS NOT LIABLE FOR ANY DELAYS, INTERRUPTIONS, SUSPENSIONS OR UNAVAILABILITY OF OUR SITES, OR ANY PORTION OF OUR SITES, ATTRIBUTABLE TO PROBLEMS WITH THE INTERNET OR CONFIGURATION OF YOUR COMPUTER SYSTEMS. THERE IS NO WARRANTY OR GUARANTEE THAT ACCESS OR USE OF OUR SITES WILL BE UNINTERRUPTED OR ERROR-FREE.

NO ADVICE OR INFORMATION FROM SWELL SPARK IN ANY MANNER WILL CREATE ANY WARRANTY AS TO OUR SITES OR ANY PRODUCT, SERVICE OR MATERIAL AVAILABLE THROUGH THE SITES.  IF FOR ANY REASON YOU ARE NOT SATISFIED WITH THE SITES OR ITS CONTENT, YOUR SOLE REMEDY IS TO CEASE USING THE SITES OR SUCH CONTENT, EVEN IF SUCH REMEDY SHOULD FAIL OF ITS ESSENTIAL PURPOSE.  SWELL SPARK AND ITS AFFILIATES DO NOT MAKE ANY WARRANTY OR REPRESENTATION REGARDING (A) THE RESULTS THAT MAY BE OBTAINED FROM USE OF OUR SITES, (B) ANY CONTENT OBTAINED FROM OUR SITES OR (C) THE ACCURACY OR RELIABILITY OF ANY CONTENT OBTAINED FROM OUR SITES.  APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

10. Limitation of Liability

TO THE EXTENT ALLOWED BY LAW, IN NO EVENT WILL SWELL SPARK OR ANY OF OUR OR THEIR RESPECTIVE VENDORS, AFFILIATES, OFFICERS, MEMBERS, REPRESENTATIVES, SUPPLIERS, DIRECTORS, EMPLOYEES, CONSULTANTS, OWNERS, OR AGENTS BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOSS OF USE, DATA, INFORMATION, PROFITS, BUSINESS, REVENUE, EXPECTED SAVINGS OR BUSINESS INTERRUPTION, OR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR OTHERWISE RELATED TO (I) OUR SITES, (II) THE USE OR PERFORMANCE OF OUR SITES OR ANY LINKED WEBSITE OR ANY CONTENT OR OTHER MATERIAL OR INFORMATION OBTAINED THROUGH OUR SITES, OR (III) OTHERWISE ARISING OUT OF THE USE OR THE INABILITY TO USE OUR SITES, WHETHER SUCH DAMAGES ARE BASED IN TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SWELL SPARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE.  YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF SUCH DAMAGE IS TO DISCONTINUE YOUR ACCESS TO AND USE OF OUR SITES. NOTWITHSTANDING THE FOREGOING, IN ANY EVENT, THE AGGREGATE LIABILITY OF SWELL SPARK AND OUR OR THEIR AFFILIATES AND VENDORS, FOR ANY REASON, SHALL NOT EXCEED $100.00 U.S. DOLLARS, EVEN IF SUCH REMEDY SHOULD FAIL OF ITS ESSENTIAL PURPOSE.

11. Indemnification

To the extent allowed by law, you agree to defend, indemnify and hold harmless Swell Spark, its affiliates, officers, directors, representatives, employees, consultants, and agents from and against any claims, allegations, damages, losses, liabilities or expenses (including attorneys’ fees) that such party may suffer or incur as a result of (i) your use or misuse of our Sites, (ii) your infringement of any intellectual property, invasion of privacy, or other right of Swell Spark or any third party, (iii) your violation of any applicable law, or (iv) your breach of these Terms of Use.  Swell Spark reserves the right to participate in the defense of any such claim, at its own cost, without limiting or relieving you of your indemnification obligations.

12. Disputes Resolution

These Terms of Use (including without limitation the validity, construction and performance of duties related to the Terms of Use) are governed by and construed in accordance with the laws of the United States of America and the laws of the State of Missouri without giving effect to any principles of conflicts of laws.

You shall first contact us at privacy@swellspark.com regarding any claim or controversy arising out of or relating to these Terms of Use, or any breach thereof, or the use of our Sites, except such claims or controversies for which injunctive relief is available.  Any claim or controversy that cannot be resolved by the parties after the exercise of good faith discussion within thirty (30) days shall be finally settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules including the Supplementary Procedures for Consumer-Related Disputes (collectively, “AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  The AAA Rules are available online at adr.org. You agree that, by accepting these Terms of Use, you and Swell Spark are each waiving the right to a trial by jury or to participate in a class action. These Terms of Use evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. Unless you and Swell Spark agree otherwise, any arbitration hearings will take place in the state of Missouri.

In the event that binding arbitration is not enforceable, you consent to the exclusive jurisdiction of any federal or state court located in the State of Missouri, U.S.A. for the resolution any disputes.  Any cause of action you may have with respect to your use of our Sites must be commenced within six (6) months after the claim or cause of action arises.

13. Copyright and Copyright Notices

We respect the intellectual property of others, and we ask our users to do the same.  We will promptly review and remove Content from our Sites if properly notified that the materials infringe a third party’s copyright.  If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with the following information:

• an electronic or physical signature of the owner or person authorized to act on behalf of the owner of the copyright interest;
• a description of the copyrighted work that you claim has been infringed;
• a description of where the material that you claim is infringing is located on the website sufficient to allow us to locate the allegedly infringing material;
• your name and contact information (including address, telephone number and e-mail address);
• a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
• a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Please contact us for Notice of Claims of copyright infringement at:

Swell Spark, LLC
43 Kansas Ave., Kansas City, KS 66105
hello@swellspark.com

1. Miscellaneous
2. Entire Agreement.  These Terms of Use constitute the entire agreement between you and us with respect to the subject matter hereof, and, supersede all prior and contemporaneous agreements and understandings, whether written or oral, concerning the subject matter hereof.  Any conflicting or supplementary terms and conditions to these Terms of Use proposed by you in any e-mail or other communication shall not be binding on us, and are hereby objected to and expressly rejected.
3. Severability. If any portion of these Terms of Use is held invalid or unenforceable under applicable law, that portion shall be construed in a manner consistent with applicable law to accomplish, as nearly as possible, the objective thereof, or severed from the document if and solely to the limited extent such construction is not possible, and the remaining portion of these Terms and the Privacy Policy shall remain in full force and effect.
4. Relationship of the Parties. No joint venture, partnership, employment or agency relationship exists between you and us as a result of these Terms of Use or your use of our Sites or the Content.
5. No Waiver. Our failure to enforce any provision of these Terms of Use will not be deemed a waiver of that or any other provision of these Terms of Use.
6. The section titles in these Terms of Use are solely used for the convenience of the parties and have no legal or contractual significance.  The words “include”, “including”, and all other forms of “include” are deemed to be followed by “without limitation.”
7. Contact Us

If you have any questions about these Terms of Use, please write to us by mail at Swell Spark, LLC, 43 Kansas Ave., Kansas City, KS 66105, email us at privacy@swellspark.com, or call us at 1 (913) 730-5733.