TERMS OF SERVICE AGREEMENT
Insticator Terms Of Service
INTRODUCTION AND ACCEPTANCE
Please read this Terms of Service Agreement (these “Terms”) carefully, as it constitutes legally binding terms and conditions between you, as the user of our Services (as defined below) and Insticator, Inc. and its affiliates (“Insticator” “we” “us” or “our”). These Terms apply to your use of and access to (a) our website, located at www.insticator.com and all corresponding web pages and websites owned or operated by Insticator (the “Sites”), (b) the Insticator-branded mobile, web, tablet, desktop and other applications, including applications made available through Facebook, iOS and Android (the “App(s)”), (c) the Insticator widget available on or through third-party websites (the “Widget”), or (d) any of the publisher or advertiser services, virtual redemption services, Content, Insticator’s social networking services and any other content, applications, features, functionality, information and services offered by us whether through the Apps, the Sites or otherwise (each of the above individually and collectively referred to herein as the “Services”), whether you are accessing the Services and/or using the Services as a registered user, publisher, advertiser or visitor and whether via a wireless or mobile device, a tablet a personal computer or any other technology or device (each, a “Device”). If you are entering into these Terms in connection with your employment, you represent to us that you are authorized to bind your employer and all references to “you” and “your” shall refer to you and your employer. If you do not agree to these Terms, then you have the choice not to utilize our Services.
Use of our Services is limited to users 18 years of age and older. By using our Services, you represent and warrant to us that you are at least 18 years of age or older. You also represent and warrant that your use of our Services does not violate any law, rule or regulation to which you may be subject, including any terms, conditions or requirements promulgated by any provider of a Third Party Platform. Certain features of our Services may be subject to heightened age and/or other eligibility requirements and restrictions. If you are a user over the age of 18, but under the age of majority in your jurisdiction, please review these Terms with your parent or guardian. Your parent or guardian should agree to these Terms on your behalf and parental discretion is advised for all such users.
INTELLECTUAL PROPERTY RIGHTS
As between you and Insticator, Insticator owns the Services, including all of the content (e.g., audio-visual content, photographs, audio, images, illustrations, graphics, video, copy, software, etc.), code, data and materials displayed on or otherwise made available through the Services, including as contained in any advertisements, on the Widget and the “look and feel” of such content (collectively, “Content”). This includes all intellectual property and proprietary rights in such Content. When you use the Services, or download materials from the Services, you do not acquire any ownership of any such Content. The Services are only for your personal, non-commercial use. You may not make any commercial use of the Services, or any Content made available on the Services, unless you have received our prior written permission.
The trademarks, logos, service marks, and trade names (collectively the “Trademarks”) displayed on the Services are registered and unregistered Trademarks of Insticator and may not be used in any manner that is likely to cause customer confusion, or that disparages or discredits Insticator. You do not receive, by implication or otherwise, any license or right to use any Trademark or Content displayed on the Services without our prior written permission, which may be withheld in our sole discretion.
Except as we expressly permit, you may not download, display, copy, distribute, modify, perform, transfer, create derivative works from, sell, or otherwise exploit any Content on the Services or the Services themselves. The framing or scraping of or in-line linking to our Services or any Content, and/or the use of webcrawler, spidering or other automated means to access, copy, index, process and/or store any Content or the Services, other than as expressly authorized by us, is prohibited. You further agree to abide by exclusionary protocols (e.g., Robot.txt, Automated Content Access Protocol (ACAP), etc.) used in connection with our Services. Additionally, you are not permitted to alter, delete or conceal in any manner any copyright, Trademark, or other notices contained on our Services, including, without limitation, notices on any Content you transmit, display, print, stream or reproduce from our Services. Any unauthorized or prohibited use of any Content or the Services may violate or infringe copyright and other laws of the United States and other countries, as well as applicable local and state laws, and may subject you to liability for such unauthorized use.
DIGITAL MILLENNIUM COPYRIGHT ACT
We require users to respect our copyrights, trademarks, and other intellectual property rights and shall enforce same. We likewise respect the intellectual property of others. If you believe that our Services contain elements that infringe your copyrights in your work, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on our Services are covered by a single notification, a representative list of such works on our Services;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if applicable, email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Written notification of claimed infringement must be submitted to the following Designated Agent:
Attention: DMCA Copyright Agent
2 Park Avenue, 10th Floor
New York, NY 10016
Email Address of Designated Agent: [email protected]
For clarity, only DMCA notices should be sent to the Designated Agent and any other feedback, comments, requests for technical support, and other communications should be directed to Insticator customer service by sending an email to [email protected]. You acknowledge and agree that if you fail to comply with all of the requirements of this Section 4, your DMCA notice may not be valid.
If you believe that your content was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to applicable law, to make such content available to Insticator for use on our Services, you may send a counter-notice containing the following information to our Copyright Agent:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of a mistake or a misidentification of the content; and
- Your name, address, telephone number, and, if applicable, email address, and a statement that you shall accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by our Copyright Agent, Insticator may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or the user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Insticator’s sole discretion.
- Services Generally. The Services allow you, our partners and publishers to measure and track the effectiveness of your/their marketing campaigns through your and their use, interaction and access to certain features and functionality of the Services, including your interaction with surveys, questionnaires, polls and contests via the Widget. Statistics related to certain aspects of the Services may be available on your dashboard or via your User Account.
- Widget Services. The Services allow you and users to participate in and interact with surveys, questionnaires, games, polls and contests via the Widget that are embedded in Third Party Services (as defined below). By interacting with such content, you may choose to answer trivia question (e.g., questions about history, characters and timelines in television shows, athletes and actors, etc.) and, if you elect, provide general information about yourself and preferences (e.g., age range, state of residence, favorite consumer good, etc.). In exchange for such interaction and subject to the terms and conditions of these Terms, you may earn Redemption Points (as defined below) that may be redeemed for a variety of products, like gift cards.
- Analytics Services. The Services allow you and our partners, clients and publishers to monitor, track and improve the effectiveness of their advertising and marketing campaigns. If you subscribe to certain Services, you can monitor information such as audience size, the amount of advertising revenue that your service generated, insights related to your audience (e.g., age range, education level, city of residence, consumer product preferences, etc.), create “look-a-like” models and bid on advertising placement. Such information will be aggregated and anonymized and will be supplied via your dashboard in the Services.
- Virtual Redemption Points. The Services include a component of virtual redemption points or credits that you may earn, be rewarded, receive, obtain or redeem (collectively, “Redemption Points”) when you interact with certain Services, like the Widget. The Redemption Points may be used in connection with certain features and functions of the Services, including with the Widget. Upon meeting certain conditions, you may also have the opportunity to obtain Redemption Points through promotional offers from Third Party Services (as defined below) or our third-party partners. When you obtain Redemption Points, Insticator hereby grants you a non-transferable, revocable, limited license to use the Redemption Points that you may redeem for gift cards via Third Party Services in accordance with these Terms (and if applicable the terms and conditions of the Third Party Services). Except as permitted by the Terms or otherwise expressly permitted by Insticator, this limited license may not be sublicensed, encumbered, conveyed or made subject to any right of survivorship or other disposition by operation of law or otherwise, and you agree that any attempted disposition in violation of these Terms is null and void. Insticator may revoke this limited license at any time without notice with no refund of compensation in the event that: (a) the Redemption Points program is suspended or discontinued; (b) Insticator determines that fraud or other illegal conduct is associated with the holder’s User Account; (c) Insticator imposes an expiration date on usage of any Redemption Points in compliance with applicable laws, rules and regulations; (d) the holder's User Account is terminated for violation of these Terms; or (e) the holder becomes delinquent on any of that user's payment requirements, ceases to maintain an active account or terminates use of the Services by cancelling the associated User Account.
We want to keep our Services safe and enjoyable for everyone and the use of our Services for unlawful or harmful activities is expressly prohibited. You agree that, while using our Services, you shall not:
- engage in or encourage conduct that would violate any applicable law, rule, regulation, judicial or government order or give rise to civil liability or violate or infringe upon any intellectual property, proprietary, privacy, moral, publicity or other rights of ours or of any other person or entity;
- submit, post, email, display, transmit or otherwise make available through our Services any material or take any action that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or publicity rights, harassing, profane, obscene or vulgar, or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- submit, post, email, display, transmit or otherwise make available through our Services any material that you do not have a right to make available under any law, rule or regulation or under contractual or fiduciary relationships (such as inside information, proprietary or confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or otherwise creates a security or privacy risk for any other person or entity;
- engage in or encourage conduct that affects adversely or reflects negatively on our brand, Services, business, goodwill or reputation or causes duress, distress or discomfort to us or anyone else, or discourage any person from using our Services, or from advertising or becoming a supplier to us in connection with our Services;
- submit, post, email, display, transmit or otherwise make available through our Services any material that contains a software virus, worm, spyware, Trojan horse or other computer code, file or program designed to interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- except as expressly permitted herein, use our Services for commercial or business purposes;
- modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of our Services or the rights or use or enjoyment of our Services by any other user;
- transfer or attempt to transfer, modify, increase, alter or interfere with your Redemption Points (including the number of Redemption Points in your User Account);
- impersonate any person or entity or falsely state or otherwise represent your affiliation with any person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with our Services;
- solicit passwords or personal identifying information for commercial or unlawful purposes from other users or engage in spamming, flooding, harvesting of email addresses or other personal information, “scamming”, “spidering”, “screen scraping”, “phishing”, “database scraping”, or any other activity with the purposes of obtaining lists of other users or other information, including transmitting or facilitating in the transmission of junk email, chain letters, duplicative or unsolicited messages;
- modify, reverse engineer, decompile or disassemble any part of our Services, whether in whole or in part, or create any derivative works from any part of our Services, or encourage, assist or authorize any other person to do so; or
- submit, post, email, display, transmit or otherwise make available through our Services any information, materials or content (and/or engage in or encourage conduct or other activities) that are, or could be perceived as, false, incorrect, misleading or deceptive.
Insticator assumes no responsibility for monitoring our Services for inappropriate, false, incorrect, misleading, deceptive or unlawful content, information, materials or conduct posted by or on behalf of a third party. If at any time Insticator chooses in its sole discretion to monitor our Services, Insticator nonetheless assumes no responsibility for User Postings (as hereafter defined), assumes no obligation to modify or remove any User Postings, and no responsibility for the conduct of any user. In addition to all rights and remedies that Insticator has under these Terms and at law, Insticator reserves the right to delete and/or disable any User Account, cancel or withdraw Redemption Points, investigate and take appropriate legal action against anyone who, in Insticator’s sole discretion, violates, or is suspected of violating, these Terms, including this Section 7, including, without limitation, reporting you to law enforcement authorities.
Our Services may provide you with an opportunity to submit, post, email or otherwise make available comments, data, text, sound, photographs, graphics, messages, reviews and feedback via our Services (collectively, “User Postings”). We do not acquire any ownership rights in the User Postings, however, by submitting User Postings, you hereby grant Insticator a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Postings in connection with the Service and Insticator’s business. You also represent that you own the User Posting posted by you or otherwise have the right to grant the rights, licenses and privileges described in these Terms. You acknowledge that we may use them throughout the world for any purpose, in any form or format, on or through any media or now known or hereafter developed, including the right to modify, edit, create derivative works and translate such User Postings. We may do so without notice to you and without paying any compensation to you. All User Postings are and will be considered non-confidential and non-proprietary. User Postings do not reflect the views of Insticator, and you understand that by using our Services, you may be exposed to other people’s User Postings that could be offensive, indecent or objectionable and, as such, Insticator does not guarantee the accuracy, integrity, quality or content of any User Postings. We have the right, but not the obligation, to review any User Posting and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason. Under no circumstances shall Insticator be liable in any way for User Postings, including, without limitation, errors or omissions in any User Postings, or any loss or damage of any kind incurred as a result of any User Postings made available.
From time to time, you may choose to communicate with, interact with, or obtain Third Party Services from our publishers, advertisers, clients, sponsors, or other promotional partners (collectively, “Advertisers”) found on or through our Services (including with the Widget) or via a hyperlinked website, service or platform. All such communication, interaction and participation is strictly and solely between you and such Advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertisers or any goods or services you may purchase or obtain from any Advertiser).
PAYMENT, PRICING, AND RELATED TERMS.
We may make available certain fee-based transactions, content and other e-commerce services, including, without limitation, purchase goods and services on and/or in connection with our Services (“Fee-Based Services”). Certain Fee-Based Services may utilize third party service providers (e.g., Apple, Tango Card etc.), and all purchases made through these third party service providers are subject to their respective terms and conditions, and in the event of a conflict between such third party’s terms and conditions and these Terms, the terms and conditions of the third party service provider shall govern and control. Insticator is not responsible and has no liability whatsoever for goods or services you obtain through our third party service providers or other web sites or web pages. We encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online transaction with any of these third parties. You agree to pay in full the prices for any purchases made using the User Account registered to you, including all applicable taxes and exchange fees.
Payments and Use of Redemption Points
Our Services or certain features or functions within the Services may accept Redemption Points as a method of payment. If we allow you to make certain purchases with Redemption Points (e.g., in-game purchases), you are representing and warranting that you are the holder of the applicable amount of Redemption Points and not using such Redemption Points for fraudulent or illegal purposes. Insticator reserves the right to change any and all Redemption Points values for any features, functions or services at any time, for any reason. YOU ACKNOWLEDGE AND AGREE THAT REDEMPTION POINTS ARE NOT REAL CURRENCY OR ANY TYPE OF FINANCIAL INSTRUMENT AND IS NOT REDEEMABLE FOR ANY SUM OF MONEY FROM INSTICATOR OR ANY OTHER PARTY AT ANY TIME, RATHER IT IS MEASUREMENT OF THE EXTENT OF YOUR LIMITED LICENSE. YOU AGREE THAT INSTICATOR HAS THE RIGHT TO MANAGE, REGULATE, CONTROL, AND/OR MODIFY THE LICENSE RIGHTS UNDERLYING SUCH REDEMPTION POINTS AS IT SEES FIT AND THAT INSTICATOR WILL HAVE NO LIABILITY TO YOU BASED ON OUR EXERCISE OF THIS RIGHT. INSTICATOR MAKES NO GUARANTEE AS TO THE NATURE, QUALITY OR VALUE OF THE FEATURES OF THE SERVICE THAT WILL BE ACCESSIBLE THROUGH THE USE OF REDEMPTION POINTS, OR THE AVAILABILITY OR SUPPLY OF REDEMPTION POINTS. YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED REDEMPTION POINTS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
Payment Method and Terms
Our Services may accept certain methods of payment which will be indicated at the time of purchase as forms of payment or redemption, including Redemption Points (each, an “Authorized Payment Method”), subject to certain restrictions, including, without limitation, territory restrictions, bank/payment card restrictions, redemption restrictions, spending limits, third party service provider restrictions or otherwise, which may prevent the processing of your order. If a transaction has been declined online due to payment card issues, please ensure all data is correct and resubmit. If the transaction is not accepted online, you will be unable to use that card for your transaction and should use another Authorized Payment Method. If a payment card company is being used for a transaction, Insticator may obtain a pre-approval from the applicable payment card company for an amount up to the amount of the order. All purchases and redemptions are final once you click the “Submit”, “Confirm” or similar button/link and billing to your payment card occurs at such time or shortly thereafter. If payment is not received by us from your credit card issuer, you agree to promptly pay all amounts due upon demand by us. Insticator reserves the right to change any and all prices or values for any products or services at any time, for any reason. Additional Terms and Conditions
Insticator may revise any or all of the fees and prices associated with the Fee-Based Services at any time for any or no reason. Further, while we try to be as accurate as possible when describing and displaying our products, Insticator does not guarantee that product descriptions or other content and products will be available, accurate, complete, reliable, current or error-free. Descriptions and images of, and references to, products or services on or in connection with the Fee-Based Services do not imply Insticator’s endorsement of such products or services. Despite our best efforts, some products or services may be mispriced. If the correct price of a product or service sold by Insticator is higher than our stated price or value, we will, at our discretion, either contact you for instructions before shipping or finalizing your reservation, or cancel your order or reservation and notify you of such cancellation.
Insticator and its third party operational service providers reserve the right to change product descriptions, images, and references, and to limit the available quantity of any product. Further, if Insticator terminates your use of or registration to our Services because you have breached these Terms, you shall not be entitled to a refund of any unused portion of any fees, payments or other consideration.
Support If you have a complaint or dispute about a certain charge, or about a certain feature or product made available on or in connection with the Fee-Based Services, you must promptly notify Insticator customer service of such complaint or dispute by sending a detailed email to [email protected].
THIRD PARTY PRODUCTS AND SERVICES
WE ARE NOT RESPONSIBLE AND HAVE NO LIABILITY WHATSOEVER FOR GOODS OR SERVICES YOU OBTAIN THROUGH THIRD PARTY SERVICE PROVIDERS OR OTHER WEB SITES, WEB PAGES, APPLICATIONS AND PLATFORMS (EVEN IF ACCESSED WITHIN, THROUGH OR IN CONNECTION WITH THE SERVICES), AND ANY SUCH PURCHASES ARE SUBJECT TO THEIR RESPECTIVE TERMS AND CONDITIONS OF USE. YOU ACKNOWLEDGE AND AGREE THAT PRODUCT/SERVICE SPECIFICATIONS AND OTHER INFORMATION HAVE EITHER BEEN PROVIDED BY THE APPLICABLE THIRD PARTY VENDORS OR COLLECTED FROM PUBLICLY AVAILABLE SOURCES AND WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR RELIABILITY OF ANY SUCH INFORMATION. ACCORDINGLY WE ENCOURAGE YOU TO MAKE WHATEVER INVESTIGATION YOU FEEL NECESSARY OR APPROPRIATE BEFORE PROCEEDING WITH ANY TRANSACTION WITH ANY OF THESE THIRD PARTIES AS SAME IS CONDUCTED AT YOUR SOLE RISK. FURTHER, WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE SECURITY OF ANY INFORMATION (INCLUDING, WITHOUT LIMITATION, CREDIT CARD AND OTHER PERSONAL INFORMATION) YOU MIGHT BE REQUESTED TO GIVE ANY SUCH THIRD PARTY, AND YOU IRREVOCABLY WAIVE ANY CLAIM AGAINST US OR OUR AFFILIATES WITH RESPECT TO ANY SUCH TRANSACTION. WE ARE NOT RESPONSIBLE FOR ASSISTING YOU IN CORRECTING ANY PROBLEM YOU MAY EXPERIENCE WITH GOODS AND SERVICES PURCHASED THROUGH A THIRD PARTY SERVICE PROVIDER, EVEN IF THE GOODS OR SERVICES ARE ACCESSED WITHIN, THROUGH OR IN CONNECTION WITH THE SERVICES. WE CANNOT ENSURE THAT YOU WILL BE SATISFIED WITH ANY PRODUCTS OR SERVICES THAT YOU PURCHASE FROM ANY THIRD-PARTY OPERATIONAL SERVICE PROVIDER AS THOSE ARE OWNED AND OPERATED BY INDEPENDENT ENTITIES. CUSTOMER SERVICE ISSUES RELATED TO GOODS OR SERVICES SHOULD BE DIRECTED TO THE RELEVANT THIRD PARTY OPERATIONAL SERVICE PROVIDER.
DATA AND WIRELESS ACCESS CHARGES.
Certain of our Services may require data access, and the provider of data access (e.g., network operator, wireless carrier, etc.) for your Device may charge you data access fees in connection with your use of such including, without limitation, wireless carrier messaging and other communication, messaging and data fees and charges. Insticator will not be responsible for any such data access fees and charges in connection with your use of any Services. Further, the use or availability of certain Services may be prohibited or restricted by your wireless carrier and/or data access provider, and not all Services may work with all wireless carriers, networks, platforms, services or devices
These Terms, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by us without restriction, notice or other obligation to you.
These Terms shall remain in full force and effect while you use or are registered to use any of our Services. You may terminate your use of or registration for our Services at any time, for any reason, and Insticator may terminate your use of or registration to the Services at any time, for any or no reason, with or without prior notice or explanation, and without liability or obligation to you or any third party.
You agree to indemnify, defend and hold Insticator and its affiliates and their respective successors and assigns, present and former directors, officers, employees, representatives, agents, licensors, advertisers, partners, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees), arising in any way out of or in connection with (a) your use of our Services, (b) your breach or violation these Terms or (c) your User Postings. Insticator reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you and all negotiations for its settlement or compromise, and you agree to fully cooperate with us upon our request.
We may modify these Terms from time to time, and at any time, without notice to you, for any reason, in our sole discretion. We may post or display notices of material changes on our Services and/or notify you via other electronic means. The form of such notice is at our discretion. Once we post or make them available on our Services, these changes become effective immediately and if you use our Services after they become effective it will signify your agreement to be bound by the changes. We recommend that you check back frequently and review these Terms regularly so you are aware of the most current rights and obligations that apply to you.
DISCLAIMER AND LIMITATIONS OF LIABILITY.
THE SERVICES, AND ALL CONTENT, PRODUCTS, REDEMPTION POINTS, SERVICES AND USER POSTINGS MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND INSTICATOR, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, PRESENT AND FORMER OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, PARTNERS, SERVICE PROVIDERS, PUBLISHERS, ADVERTISERS AND SUPPLIERS DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THE SERVICES WILL BE AVAILABLE FOR USE, OR THAT ANY PRODUCTS, FEATURES, FUNCTIONS, SERVICES OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED. WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS, OR OMISSIONS ARISING OUT OF YOUR USE OF THE SERVICES. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, INSTICATOR, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, PRESENT AND FORMER OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, PARTNERS, SERVICE PROVIDERS, PUBLISHERS, ADVERTISERS AND SUPPLIERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SERVICES OR FROM THESE TERMS, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES. TO THE EXTENT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, LIMIT OUR LIABILITIES, THE EXTENT OF OUR LIABILITY SHALL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THE CAPACITY OF THE SERVICES, IN THE AGGREGATE AND FOR EACH USER, IS LIMITED. CONSEQUENTLY, SOME MESSAGES, CONTENT AND TRANSMISSIONS, INCLUDING, WITHOUT LIMITATION, USER POSTINGS, MAY NOT BE PROCESSED IN A TIMELY FASHION OR AT ALL, AND SOME FEATURES OR FUNCTIONS MAY BE RESTRICTED OR DELAYED OR BECOME COMPLETELY INOPERABLE. AS A RESULT, YOU ACKNOWLEDGE AND AGREE THAT WE ASSUME NO LIABILITY, RESPONSIBILITY OR OBLIGATION TO TRANSMIT, PROCESS, STORE, RECEIVE OR DELIVER TRANSACTIONS, REDEMPTION POINTS OR USER POSTINGS OR FOR ANY FAILURE OR DELAY ASSOCIATED WITH ANY USER POSTINGS OR REDEMPTION POINTS AND YOU ARE HEREBY EXPRESSLY ADVISED NOT TO RELY UPON THE TIMELINESS OR PERFORMANCE OF THE SERVICES FOR ANY TRANSACTIONS, REDEMPTION POINTS OR USER POSTINGS. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES OR CERTAIN LIMITATIONS ON DAMAGES AND REMEDIES, ACCORDINGLY SOME OF THE EXCLUSIONS AND LIMITATIONS DESCRIBED IN THIS AGREEMENT MAY NOT APPLY TO YOU.
- CUSTOMER SUPPORT. For assistance with technical issues or customer support inquiries, please send an email to [email protected].
GOVERNING LAW; MISCELLANEOUS.
- These Terms contains the entire understanding and agreement between you and Insticator concerning our Services and supersedes any and all prior or inconsistent understandings relating to our Services and your use thereof. These Terms cannot be changed orally. If any provision of these Terms is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and these Terms shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of these Terms; however, no action arising out of these Terms or your use of our Services, regardless of form or the basis of the claim, may be brought by you more than one year after the cause of action has arisen (or if multiple causes, from the date the first such case arose). The failure of Insticator to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision.
- These Terms and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of New York, exclusive of conflict or choice of law rules. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in New York County, New York before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). In any arbitration arising out of or related to these Terms, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. Each of you and Insticator agree to adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of these Terms) with respect to any final award in an arbitration arising out of or related to these Terms.
- TO THE EXTENT ALLOWED BY LAW, EACH OF YOU AND INSTICATOR WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASS WIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY ARBITRATION.
- To the extent that there is a conflict between these Terms and the Additional Terms, the Additional Terms shall govern. To the extent that there is a conflict between these Terms and the specific Rules for the activity in which you choose to participate, the Rules shall govern. To the extent that there is a conflict among these Terms, the Additional Terms and/or the Rules, the following order of precedence shall apply: first, the Rules, second, the Additional Terms, and third, these Terms.
- The Services are controlled by Insticator from its offices in the U.S. Insticator makes no representation or warranty that our Services or Content contained on or made available in connection therewith is legal, appropriate or available for use in other locations. Those who choose to access our Services from other locations do so at their own risk and are responsible for compliance with any and all local laws, rules and regulation, if and to the extent local laws, rules and regulations are applicable. No software made available in connection with our Services may be downloaded, exported or re-exported into (or to a national or resident of) any countries that are subject to U.S. export restrictions.
These Terms were last modified on the date indicated above and are effective as of August 2018.
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