THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
By registering for, accessing and/or using the Service or AppCard Properties in any manner whatsoever, you agree to be bound by these Terms of Service and all other applicable operating rules, policies and/or procedures that may be published by us from time to time on the Website or Smartphone App, each of which is incorporated by reference and each of which may be updated from time to time without notice to you. In these Terms of Service, "Member", "user" or "you" means any person accessing or using the Service or any of the AppCard Properties.
1. The AppCard Service. The AppCard service (the "Service") provides Members the opportunity to: (1) enroll in one or more loyalty and/or coupon programs ("Loyalty Programs") offered by third party merchants, restaurants and service providers (each, a "Merchant"), (2) receive special offers, coupons, discounts and other promotions from Merchants, (3) receive, store, access and maintain Member's Merchant receipts on certain AppCard Properties, and (4) access and use innovative software, applications, tools and content designed to assist Members with managing his/her Merchant interactions and overall spending activities. In addition, the Service may include other features, information and interactivity, such as information and advertising from Merchants, and the ability for Members to provide comments, reviews, photos, feedback and other content to AppCard and/or our Merchants through the Service or the App Card Properties in compliance with these Terms of Service. Members may also receive email, push notifications, or other communications on your device or through the AppCard Properties from us or our Merchants, which may include administrative, marketing, promotional, and other content and information.
Members can access and use the Service through the AppCard Properties or by providing the Member's telephone number to the cashier at a Merchant store location. Elements of the Service may be subject to additional terms and conditions specified by us or Merchants from time to time. Your use of the Service is subject to those additional terms and conditions, which are incorporated into these Terms of Service by reference. These Terms of Service apply to all users of the Service and AppCard Properties, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.
2. Eligibility. The Service and AppCard Properties are available only to individuals who are 13 years of age or older. By accessing the AppCard Properties and/or using the Service you represent and warrant that you are at least 13 years of age and your use of the AppCard Properties and/or Service does not violate any applicable law or regulation. If you are under 13 years of age, you may not, under any circumstances or for any reason, use the AppCard Properties or the Service. We may, in our sole discretion, refuse to offer the Service to any person or change eligibility criteria for the Service at any time. You are solely responsible for ensuring that your use of the Service and the AppCard Properties are in compliance with these Terms of Service and all laws, rules and regulations which are applicable to you. Your right to access and use the Service or AppCard Properties is revoked where use of the Service is prohibited or to the extent any Loyalty Program, Reward or incentive violates any law, rule or regulation applicable to you. Except as otherwise expressly permitted by these Terms of Service, the Service is provided only for your personal use, and not for commercial use or for the benefit of any third party. Corporate or business Accounts are permitted but must be through an individual authorized representative. Reward and Offers may not be transferred, repurposed or sold. The Smartphone App is provided free from AppCard but charges from your carrier for text and/or data usage may apply and you are responsible for all such charges.
3. Registration. Although you may use parts of the Service without first creating a registered Account, to access all of the benefits of the Service, including the Website or Smartphone App, you will be required to register for an account (an "Account"). You must provide true, accurate and complete information as required, and you must keep your Account information up to date at all times. You may not create an Account using another person's name or information, including email address and/or phone number, and you shall not, if applicable, create a username with the intent to impersonate another person, or which is subject to any rights of a person or entity other than you without appropriate authorization, or which is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account and for keeping your Account password secure. You may never use another person's Account or registration information to access the Service without permission. You must notify us immediately of any breach of security or unauthorized use of your Account. You may not publish, distribute or post login information for your Account. You shall have the ability to delete your Account by emailing firstname.lastname@example.org.
4. Merchant Loyalty Programs. Loyalty Programs are offered by Merchants and provide Members the opportunity to receive from the Merchant issuing the Loyalty Program, certain credits, awards, coupons, cash back, discounts and/or other promotional offers to use towards Merchant goods and services as described herein.
a. The Merchant is the sole and exclusive offerer, issuer and provider of the Merchant's Loyalty Program, including all the Loyalty Program's awards, gifts, cash-back, rebates, loyalty tier awards, and other rewards ("Rewards") and its promotional offers, discounts, events and incentives ("Offers"), whether exclusive to Member or otherwise. Although certain Rewards or Offers may be processed by AppCard, AppCard is not a provider or issuer of any Loyalty Program, Reward or Offer. Each Loyalty Program is specific to the Merchant that issues it, and any corresponding Rewards and incentives may not be used for goods or services from any other Merchant (unless specified by the issuing Merchant). The issuing Merchant is solely responsible for its Loyalty Program, including for the quality of the goods and services obtained through the Loyalty Program, for ensuring that all Offers and Rewards, including redemption of Rewards, are in compliance with all Federal, State or local laws applicable to Loyalty Programs, Rewards, and Offers, and for any liabilities, injuries, losses or damages Member may suffer in connection with use of the Merchant's Loyalty Program. You hereby expressly agree that AppCard is not responsible for any Merchant Loyalty Program, Reward, or Offer, or for any other matter relating to a Merchant's Loyalty Program and that AppCard is not responsible for redemption or fulfillment of any Merchant Loyalty Program Reward or Offer. Merchant may, in its sole and absolute discretion, cancel, change, suspend or modify any aspect of its Loyalty Program, including the Rewards and/or Offers offered or available, at any time.
b. Unless expressly allowed by the Merchant, Rewards and Offers cannot be combined with any other offers, certificates or promotions. Additional eligibility requirements may apply for certain Rewards and/or Offers, at the discretion of Merchant, and you agree not to use any Reward or Offer if you do not meet all the eligibility criteria specified by the Merchant. The Merchant is solely responsible for compliance with all applicable laws and accepted practices with respect to offering, issuing, advertising, and/or redeeming Rewards and Offers.
c. Rewards and Offers may only be applied to goods or services sold by the Merchant issuing the Reward or Offer, unless otherwise stated in the offer. Rewards may not be applied to delivery, processing or handling fees. If the Merchant is a restaurant, Rewards may not be applied to gratuities, tax, or, unless expressly permitted by the Merchant, to alcoholic beverages. If the Merchant is a restaurant and issues Offers for or that include alcoholic beverages, or permits use of Rewards for alcoholic beverages, the laws in certain states or counties may restrict or limit redemption of Rewards and usage of Offers for alcoholic beverages.
d. Rewards and Offers are only available as specified by the Merchant and may be limited or restricted by conditions imposed by the Merchant, including, but not limited to, time of use restrictions (such as day of week and hours of day), expiration dates, number of times you can use an Offer, total number of available Offers, etc. Unless otherwise specified by the Merchant, Offers do not apply to tax, gratuities, shipping and handling charges, and the purchase of gift cards. Members that have not established an Account may only access the Service using a Plastic Card at a Merchant retail location, and are only be eligible to receive loyalty tier awards for purchases from that Merchant.
e. Unless otherwise specified by the Merchant, there is no limit to the amount of Rewards you can earn in a calendar year. Rewards earned, but not redeemed, will expire 24 months after your last purchase with the associated Merchant recorded by the Service, unless the Merchant specifies an expiration date, or unless otherwise required by applicable state law, as described below. A Reward is only available until the applicable expiration date for that Reward and any Rewards that remain unused after such date will be deemed as expired. Certain states may require that Rewards be valid for a certain minimum period of time or require that Rewards not expire. If those laws apply, the Merchant is obligated to honor your Reward redemption beyond the expiration date specified as required by law. If you have a partially redeemed Reward and applicable law entitles you to a credit or refund for the unredeemed stated value of the Reward, the Merchant is obligated to provide you with a credit or refund to the extent required by applicable law. If the Merchant refuses to provide you with the credit, please contact AppCard by emailing us at email@example.com. We will endeavor to resolve the dispute, however, we cannot and do not guarantee redemption or the issuance of any credits or refunds.
f. When redeeming a Reward, the value of your purchase must be greater than the value of the Reward. Rewards cannot be redeemed for cash equivalent, applied to past purchases, or used for purchasing gift cards. A Merchant may enforce limitations on the amount of Rewards that will be used in a single transaction or day by any one Member, including but not limited to a minimum on the amount of Rewards used, a maximum on the amount of Rewards used, whether Rewards can be redeemed only in absolute amounts (e.g., $10.00) and/or in fractional amounts (e.g., $10.35). Employees of the Merchant cannot combine Rewards with any applicable employee program unless specified differently by the Merchant.
g. Merchant may determine at its sole discretion how long it will take from the time Member is entitled to a Reward until Member's account is actually credited with the Rewards.
h. Unless otherwise specified by the Merchant, membership tier levels are calculated based on annual spend not including tax, gratuities, shipping and handling charges, and the purchase of gift cards. Merchant may determine at its sole discretion how often membership tier levels are calculated.
i. If you return goods that you purchased using Rewards, the Rewards used to purchase those goods will be credited back to your Account. If you return goods that you purchased as part of a purchase that was partially paid with Rewards, the applicable Merchant may decide to first credit your account with Rewards and only if there is a balance left to be credited back to you, credit the balance with other means. Partial or no credit may be given for partial, incomplete or damaged returns. Furthermore, AppCard's obligation to issue you a Reward credit is conditional on the Merchant processing the return so that it is properly recorded by the Service. If you close your Account, Rewards will not be credited back to you, unless required by law. Returns are also subject to the Merchant's own policies. Furthermore, if you are issued or receive a Reward from the purchase of goods, which goods you later return, the applicable Reward will be debited from your Account.
j. The Merchant is the seller of the goods and services which you purchase from Merchant, and is the sole issuer and obligor of the Loyalty Program, Rewards and Offers. As such, the Merchant is fully responsible for any and all loss or damage of any kind, including financial injury, personal injury or death, (whether in tort, contract, or strict liability) arising out of or related to your redemption, in whole or in part, of any Reward or Offer and any goods or services acquired. You hereby expressly waive and release AppCard and its officers, directors, stockholders, affiliates, employees, agents, and successors from any liability for any damages or losses arising out of or otherwise incurred in connection with Loyalty Programs, including your redemption or attempted redemption, in whole or in part, of any Rewards or Offers.
k. A Merchant may modify the Loyalty Program terms, Rewards and Offers available to you at any time.
I. AppCard and Merchants are not responsible for lost or stolen Plastic Cards or Account passwords or information, or for any damage incurred as a result of such incident. In the event of such loss or damage, you are required to immediately notify AppCard at firstname.lastname@example.org in order to disable your Account. You can also disable the usage of a Plastic Card through the Smartphone App or Website.
5. AppCard Content.
a. The Service and the AppCard Properties are the exclusive property of AppCard. Without limitation of the foregoing, other than the Member Content (as defined below), all the text, copy, words, images, photos, videos, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and all other content on the Website and Smartphone App (collectively, the "AppCard Content"), and except as provided in the next sentence, all software embodied in the AppCard Properties or otherwise used by AppCard to deliver the Service ("Software") is proprietary to, and owned by, AppCard, our affiliates or our licensors, and are protected by copyright, trademark, service mark, patents, trade secrets and other proprietary rights and intellectual property rights and laws. Portions of the Software are based in part on the open-source libraries redistributed under Apache 2.0 license, which may be viewed at the website http://www.apache.org/licenses/LICENSE-2.0. Except as otherwise expressly permitted by these Terms of Service, any use, exploitation, copying, making derivative works, transmitting, posting, linking, deep linking, redistribution, sale, decompilation, modification, reverse engineering, translation or disassembly of the Software, AppCard Content or AppCard Properties is strictly prohibited. You may be subject to criminal or civil penalties for violation of this paragraph.
b. The mark "AppCard" and the AppCard logo are registered or unregistered trademarks of AppCard, and they may not be used in connection with any service or products other than those provided by AppCard, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits AppCard. The Service also features the trademarks, service marks, and logos of Merchants and other third parties, and each owner retains all rights in such marks. Any use of such marks, or any others displayed on the Service, will inure solely to the benefit of their respective owners.
c. Subject to these Terms of Service, we grant each user of the Service and AppCard Properties a limited, worldwide, non-exclusive, non-sublicensable, revocable and non-transferable license to use (i.e., to download and display locally) the AppCard Properties and AppCard Content solely for personal, non-commercial purposes and solely in connection with the Service. Use, reproduction, modification, distribution or storage of any AppCard Content for other than personal, noncommercial use and in connection with the Service is expressly prohibited without prior written permission from us or from the copyright holder identified in such content's copyright notice. You shall not sell, license, rent, or otherwise use or exploit any AppCard Content for commercial use, for non-commercial use other than in connection with the Service, or in any way that violates our rights or any third party rights.
6. Member Content and License
a. All content added, created, uploaded, submitted, distributed, or posted to the Service and/or AppCard Properties by you, whether publicly posted or privately transmitted, is your sole responsibility. You are solely responsible for your Account, password, profile, messages, feedback, reviews, notes, text, information, opinions, ideas and any other content you post, upload, submit, distribute, publish, or display on or through the Website or Smartphone App, or transmit to or share with other users of the Service or AppCard Properties (collectively, the "Member Content") and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. Any Member Content that is posted will not be treated as confidential. AppCard has the right, but not the obligation, to monitor and decline, edit, or remove (without notice) all or any portion of any Member Content for any reason or no reason. If AppCard chooses at any time, in its sole discretion, to monitor Member Content, it still has no responsibility for the Member Content or for the conduct of the Member posting Member Content or to edit or remove any Member Content, except in compliance with a valid copyright takedown request as detailed in Section 14 below. If you are involved in a dispute with one or more Members, you hereby expressly release AppCard (including its officers, directors, stockholders, affiliates, agents and employees) from all claims, demands, and damages (actual and consequential) of every kind arising out of or in any way connected to any dispute. You may delete or remove your Member Content, either yourself or through a request made to AppCard. When your Member Content is deleted, it will be removed from the Service and AppCard Properties; however, you acknowledge that any removed Member Content may persist in backup copies for a reasonable period of time (but will not following removal be shared with others).
b. When you post or otherwise make available any Member Content for inclusion on any part of the Service, Website or Smartphone App, you are hereby granting AppCard an irrevocable, perpetual, non-exclusive, transferable, royalty-free, worldwide license (with the right to sublicense) to use, copy, transmit, reproduce, adapt, modify, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), create collective works and distribute such Member Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Service or the promotion thereof, in any media or distribution method (now known or later developed), to prepare derivative works of, or incorporate into other works, such Member Content, and to grant and authorize sublicenses of the foregoing. You represent and warrant that you have all rights to grant such licenses to us and other users without violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights and that you will not provide or otherwise make available any Member Content to which you do not have the full right to grant the license specified in this paragraph. You waive all moral rights in the Member Content which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant to us that AppCard is free to exercise its rights to and/or implement your Member Content if it so desires, without obtaining permission or license from any third party and without reference to you or any other person. For clarity, the foregoing license grants to us and our users do not affect your other ownership or license rights in your Member Content, including the right to grant additional licenses to your Member Content, unless otherwise agreed in writing.
UNDER NO CIRCUMSTANCE SHALL ANY DISCLOSURE OF ANY MEMBER CONTENT TO APPCARD BE SUBJECT TO ANY OBLIGATION OF CONFIDENTIALITY OR EXPECTATION OF COMPENSATION OR ATTRIBUTION. BY SUBMITTING MEMBER CONTENT TO OR THROUGH THE SERVICE OR APPCARD PROPERTIES, YOU REPRESENT AND WARRANT THAT YOUR MEMBER CONTENT WILL NOT VIOLATE ANY RIGHT OF ANY THIRD PARTY, INCLUDING COPYRIGHT, TRADEMARK, PRIVACY, OR OTHER PERSONAL OR PROPRIETARY RIGHTS. YOU REPRESENT AND WARRANT THAT NO MEMBER CONTENT WILL BE OR CONTAIN LIBELOUS OR OTHERWISE UNLAWFUL, ABUSIVE, OR OBSCENE MATERIAL. YOU ARE AND SHALL REMAIN SOLELY RESPONSIBLE FOR YOUR MEMBER CONTENT. YOU REPRESENT AND WARRANT TO APPCARD THAT WE ARE FREE TO USE THE MEMBER CONTENT AND IMPLEMENT ANY SUGGESTIONS CONTAINED THEREIN, IF WE SO DESIRE, AS PROVIDED OR AS MODIFIED BY APPCARD, WITHOUT OBTAINING PERMISSION OR LICENSE FROM ANY THIRD PARTY AND WITHOUT ANY FURTHER PERMISSION FROM YOU OR COMPENSATION TO YOU.
7. Rules of Conduct.
a. You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Service or AppCard Properties, including without limitation any AppCard Content or Member Content, that:
b. You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers') infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or AppCard Properties, any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services or AppCard Properties (or other accounts, computer systems or networks connected to the Service); (iv) run any form of auto-responder or "spam" on the Service or AppCard Properties; (v) use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Website; (vi) harvest or scrape any content from the Service or AppCard Properties; or (vii) otherwise take any action in violation of our guidelines and policies.
c. You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service or AppCard Properties, except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Service or AppCard Properties, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
d. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
8. Text Messages
a. To protect your privacy and security, we take reasonable steps (such as SMS authentication in certain cases) to verify your identity before registering your mobile phone number and granting you access to the AppCard Service.
b. When you opt-in to the AppCard Service, either through web-registration or in-store signup, we will send you an SMS message to confirm your enrollment.
c. You acknowledge that the SMS messages received will be marketing, informative or administrative messages. The frequency of the SMS will be subject to your interaction and may vary from time to time.
d. You can cancel the SMS alerts at any time. Just text "STOP" to 87573, After you send the SMS message "STOP" to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again.
e. If at any time you forget what keywords are supported, just text "HELP" to 87573 After you send the SMS message "HELP" to us, we will respond with instructions on how to use our service as well as how to unsubscribe.
f. We are able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile (T-Mobile is not liable for delayed or undelivered messages), MetroPCS, U.S. Cellular, Alltel, Boost Mobile and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless).
g. Standard text message and data rates may apply for any messages sent to you from us and to us from you. Message frequency depends on the user's interaction. If you have any questions about your text plan or data plan, it is best to contact your wireless provider. For all questions about the services provided by this short code, you can send an email to email@example.com
9. Accuracy of Content. Excluding Member Content, the information provided through the Service and AppCard Properties is believed to be complete and reliable; however, the information may contain typographical errors, pricing errors, and other errors or inaccuracies. We will use reasonable efforts to correct errors as soon as practicable. In the event of such inaccuracy, we reserve the right to: (i) revoke any Merchant advertising, Reward or Offer; (ii) correct any errors, inaccuracies, or omission; and (iii) make changes to prices, content, promotion offers, product descriptions or specifications, or other information without obligation to issue any notice of such changes (including after an order has been submitted, acknowledged, shipped, or received, except as prohibited by law). The inclusion of any Merchant products, services, Rewards or Offers on the Website or Smartphone App at a particular time does not guarantee that such products, services, Rewards or Offers will be available to you.
10. Third Party Websites/Non-Endorsement. The Website and Smartphone App may contain links to third-party websites. The linked websites are not under our control, and we are not responsible for the contents of any linked website. We provide these links as a convenience only, and a link does not imply endorsement of, sponsorship of, or affiliation with the linked website by AppCard. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties.
12. Warranty Exclusions and Limitations of Liability. To the maximum extent permitted by law, AppCard does not warrant that the Service or AppCard Properties will operate error-free or without downtime. AppCard may pause or interrupt the Service or any of the AppCard Properties at any time, and users should expect periodic downtime for updates to the Service or applicable AppCard Properties. Because we do not control the security of the Internet, mobile networks, or other networks you use to access the Service or AppCard Properties, AppCard is, to the fullest extent permitted by law, not responsible for the security of information that you choose to communicate using the Service or with any of the AppCard Properties while it is being transmitted. Additionally, to the fullest extent permitted by law, AppCard is not responsible for any data lost during transmission. To the fullest extent permitted by law, your sole and exclusive remedy, and AppCard's sole and exclusive liability, for any breach of these Terms of Service or for any other cause of action shall be (at AppCard's option) to use commercially reasonable efforts to attempt to remedy the failure or to give a credit to you in the amount owed for an unused Reward under a Loyalty Program.
TO THE FULLEST EXTENT PERMITTED BY LAW, APPCARD EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; (ii) THAT THE SERVICE, OFFERS, REWARDS AND APPCARD PROPERTIES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, (iii) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE SERVICE OR APPCARD PROPERTIES, AND (iv) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM OR THROUGH THE SERVICE OR APPCARD PROPERTIES. No advice or information, whether oral or written, obtained by you from AppCard or through the Service or AppCard Properties will create any warranty not expressly stated herein.
TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM APPCARD OR ANY MERCHANT ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE ARISING FROM OR RELATING TO THE SERVICES, THE METHOD, APPCARD PROPERTY, ANY OFFERS OR REWARDS OR ANY GOODS AND SERVICES PURCHASED WITH OFFERS OR REWARDS, EVEN IF APPCARD OR SUCH MERCHANT HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE FULLEST EXTENT PERMITTED BY LAW, APPCARD'S MAXIMUM LIABILITY TO YOU FOR ANY DAMAGES OR LIABILITY ARISING IN CONNECTION WITH A LOYALTY PROGRAM, REWARD OR OFFER, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL BE A CREDIT OF THE AMOUNT OWED FOR THE OFFER OR REWARD. IN ANY EVENT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE MAXIMUM AGGREGATE LIABILITY OF APPCARD FOR ANY AND ALL DAMAGES ARISING FROM THE SERVICE, THE APPCARD PROPERTIES AND ALL LOYALTY PROGRAMS SHALL NOT EXCEED THE AMOUNT OWED BY A MERCHANT FOR ALL OFFERS OR REWARDS AVAILABLE TO YOU IN THE THREE (3) MONTHS BEFORE THE CLAIM AROSE, OR FIVE HUNDRED DOLLARS, WHICHEVER IS LESS, REGARDLESS OF WHETHER THE CLAIM AROSE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL ONLY APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
13. Indemnification. You hereby agree to defend, indemnify, and hold harmless AppCard, our affiliates and each of our and their respective employees, officers, directors, stockholders, suppliers, affiliates, contractors, agents and successors, from all liabilities, claims and expenses, including reasonable attorneys' fees which are brought by a third party, that arise from or relate to your use or misuse of, or access to, the Service, AppCard Properties, AppCard Content, or otherwise from your Member Content, violation of these Terms of Service, or violation by you or any third party using your Account or identity in the Service, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
14. Copyright Infringement; Notice and Take Down Procedures. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that any materials on the Website or Smartphone App infringe your copyright, you may request that they be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative, and must: (a) identify the allegedly infringing materials; (b) indicate where on the Website the infringing materials are located; (c) provide your name and contact information; (d) state that you have a good faith belief that the materials are infringing; (e) state that the information in your claim is accurate; and (f) indicate that "under penalty of perjury" you are the lawful copyright owner or are authorized to act on the owner's behalf. If you believe that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send AppCard a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for further information. Our contact for copyright issues relating to the Website and Smartphone App (including the notices and counter-notices) is: Copyright Agent, AppCard Inc., 1209 Orange Street, Wilmington, New Castle, Delaware, United States, 19801, 1.800.388.8433 and firstname.lastname@example.org. Please note that there are penalties for false claims under the DMCA.
15. Resolution of Disputes/Arbitration.
a. These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, including its conflicts of law rules. While we will make reasonable efforts to resolve any disagreements you may have with AppCard, if these efforts fail you agree that all claims, disputes or controversies against AppCard, its parent companies, subsidiaries, divisions, or affiliates or their respective officers, directors, employees, agents, or successors arising out of these Terms Of Service, the Service, the AppCard Properties, the purchase, sale and/or redemption of any Merchant goods or services, Rewards or Offers, or the content, display or disclosure of any Rewards or Offers ("Claims") are subject to fixed and binding arbitration (except for matters that may be taken to small claims court), no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third- party claims, interpleaders or otherwise; and Claims made independently or with other claims.
b. CLASS ACTION WAIVER: YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND APPCARD ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND. CLAIMS AND REMEDIES SOUGHT AS PART OF A CLASS ACTION, PRIVATE ATTORNEY GENERAL OR OTHER REPRESENTATIVE ACTION ARE SUBJECT TO ARBITRATION ONLY ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS, AND THE ARBITRATOR MAY AWARD RELIEF ONLY ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS.
c. The party filing an arbitration must submit Claims to the American Arbitration Association and follow its rules and procedures for initiating and pursuing an arbitration. Any arbitration hearing that you attend will be held at a place chosen by the American Arbitration Association in the same city as the U.S. District Court closest to your then current residential address, or at some other place to which you and AppCard agree in writing, and the arbitrator shall apply New York law consistent with the Federal Arbitration Act. You shall not be entitled to join or consolidate Claims in arbitration by or against other users or to arbitrate any Claim as a representative or member of a class or in a private attorney general capacity. You may obtain copies of the current rules, and forms and instructions for initiating an arbitration by contacting the American Arbitration Association at using the contact information noted below.
American Arbitration Association
d. A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten (10) years’ experience or a retired or former judge, selected in accordance with the rules of the American Arbitration Association. The arbitration will follow the procedures and rules of the American Arbitration Association which are in effect on the date the arbitration is filed unless those procedures and rules are inconsistent with these Terms of Service, in which case these Terms of Service will prevail. Those procedures and rules may limit the discovery available to you or us. The arbitrator will take reasonable steps to protect your customer account information and other confidential information if requested to do so by you or us. Each party to the arbitration will bear the expense of that party's attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines. The arbitrator's award is final and binding on the parties unless we or you appeal it in writing to the arbitration firm within fifteen (15) days of notice of the award. The appeal must request a new arbitration before a panel of three neutral arbitrators designated by the American Arbitration Association. An award by a panel is final and binding on the parties after fifteen (15) days has passed. Any Claim you have must be commenced within one (1) year after the date the Claim arises. As noted above, you and AppCard hereby voluntarily and knowingly waive any right either may have to a jury trial.
e. Your Right to Go To Small Claims Court. We will not choose to arbitrate any Claim you bring in small claims court. However, if such a Claim is transferred, removed or appealed to a different court, we may then choose to arbitrate.
f. Fees. If you wish to begin arbitration against us but you cannot afford to pay the organization’s or arbitrator’s costs, we will pay those costs if you ask us in writing. Any request like this should be sent to 1209 Orange Street, Wilmington, New Castle, Delaware, United States, 19801. If you lose the arbitration, the arbitrator will decide whether you must reimburse us for money we advanced for you for the arbitration. If you win the arbitration, we will not ask for reimbursement of money we advanced.
16. Suspension, Modifications and Termination. AppCard reserves the right to suspend your Account or access to the Service or AppCard Properties at any time if we believe you are in breach of these Terms of Service. AppCard reserves the right to terminate or modify these Terms of Service, terminate the Service or modify any features or aspects of the Service or AppCard Properties, or modify its policies at any time, with or without notice to you. Any such termination will not affect any Rewards you have earned prior to termination. If you earn a Reward or use the Service, you shall be bound by the version of these Terms of Service in effect at the time of your purchase. If we make changes that materially affect your use of a Loyalty Program or the Service, we will post a notice of the change on the Website and Smartphone App. You are under an obligation to review the current version of this Agreement and other published AppCard policies before using the Service. Sections 4-8, 10-12, 14-15 and any accrued rights and remedies hereunder, and any other provisions that by their nature require survival in order to be effective, shall survive the termination or expiration of these Terms of Service.
a. Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
b. Assignment. These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
c. Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
d. Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and sent to:
If by electronic notice to: email@example.com
If by personal delivery or certified or registered mail or by recognized overnight delivery service to:
Notices Agent, AppCard Inc., 1209 Orange Street, Wilmington, New Castle, Delaware, United States, 19801
e. No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
f. Headings. The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.