SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS

 

If you are a resident of the United Kingdom, you can find the UK Terms of Service here.

Feastables (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy https://feastables.com/policies/privacy-policy.html (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

1. User Opt-In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method, you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive auto-dialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.

2. User Opt-Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt-out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that Feastables and its service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

3. Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery, and sale of products and services. Messages may include checkout reminders. 

4. Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

5. Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at privacy@feastables.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt-outs must be submitted in accordance with the procedures set forth above.

6. MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

7. Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage, or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages.

8. Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with a text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text-messaging instructions.

9. Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18), and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

10. Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:

- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;

- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;

- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;

- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;

- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and

- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

 

11. Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in New York, New York before one arbitrator.

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Feastable’s principal place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration.

THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. 

Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

12. Florida Law: We endeavor to comply with the Florida Telemarketing Act and Florida Do Not Call Act as applicable to Florida residents.  For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code.  You agree that the requirements of the Florida Telemarketing Act and Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us.  Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests, and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.

13. Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates, or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.

 

Website Terms of Use

 

Last Updated: January 29, 2022

 

Your use of the websites, services, platforms, and apps on which these terms reside, including each of their features (collectively, the “Platform”), is subject to these Website Terms of Use (“Terms”). Please read these Terms carefully before using this Platform. The Platform is owned or controlled by Feastables Inc. (“Company”). The Platform is intended for use by those who are 18 years of age or older, or the age of majority or older in their jurisdiction of residence. TO THE FULLEST EXTENT PERMITTED UNDER LAW, BY ACCESSING THIS PLATFORM IN ANY WAY, INCLUDING, WITHOUT LIMITATION, BROWSING THIS PLATFORM, USING ANY INFORMATION, AND/OR SUBMITTING INFORMATION TO COMPANY, YOU AGREE TO COMPLY WITH APPLICABLE LAWS AND FURTHER AGREE TO BE BOUND BY THE TERMS, CONDITIONS, POLICIES AND NOTICES CONTAINED UNDER THESE TERMS, INCLUDING, BUT NOT LIMITED TO, TERMS RELATED TO CONDUCTING THIS TRANSACTION ELECTRONICALLY, DISCLAIMERS OF WARRANTIES, DAMAGE AND REMEDY EXCLUSIONS AND LIMITATIONS, AND A CHOICE OF ILLINOIS LAW (EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY SET FORTH HEREIN).

 

From time to time, and at any time, Company may update this Platform and all or any portion of these Terms. Your use of this Platform after Company posts any changes to these Terms constitutes your agreement to those changes from the date of such changes. You agree to review these Terms periodically to ensure that you are familiar with the most recent version.   

 

Unless otherwise prohibited by applicable law, Company may, in its sole discretion, and at any time, discontinue this Platform or any part thereof, with or without notice, or may prevent your use of this Platform with or without notice to you. You agree that you do not have any rights in this Platform and that Company will have no liability to you if this Platform is discontinued or your ability to access the Platform or any content you may have posted on the Platform is terminated. In addition, when using particular services, your transactions or services may be subject to additional terms and conditions applicable to such services which may be posted from time to time, and are incorporated into these Terms by reference. This may include promotions, sweepstakes, contests, and loyalty and rewards programs, as well as return policies for certain transactions. This also includes our Mobile Messaging Terms and Conditions. In the event of a conflict between such more specific terms and conditions applicable to such services and these Terms, the more specific terms and conditions shall control solely to the extent of such conflict solely in connection with such services. 

 

1. Company Content

 

Content on this Platform that is provided by Company or its licensors, including certain graphics, photographs, images, screen shots, text, digitally downloadable files, trademarks, logos, product and program names, slogans, articles, data, code, videos and the compilation of the foregoing (“Company Content”) is the property of Company and its licensors, and is protected in the United States and internationally under trademark, copyright, and other intellectual property laws. 

 

You agree not to download, display, reproduce or use any Company Content located for use in any publications, in public performances, on websites other than this Platform for any commercial purpose, in connection with products or services that are not those of Company, in any other manner that is likely to cause confusion, that disparages or discredits Company and/or its licensors, that dilutes the strength of Company’ or its licensor’s property, or that otherwise infringes Company’ or its licensors’ intellectual property rights. You further agree to in no other way misuse any Company Content or third party content that appears on this Platform. 

 

2. Use of the Platform and Posting and Linking Policies

 

The following requirements apply to your use of the Platform, including any submission of written posts or other materials provided by you (“User Content”): (a) you will not use any electronic communication feature of the Platform for any purpose that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, hateful or in violation of these Terms or any other rules (e.g., promotional rules) Company may provide you from time to time; (b) you will not upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights; (c) you will not collect or store personal information about other users or any other third party; (d) you will not use the Platform for any commercial purpose not expressly approved by Company in writing; (e) you will not upload, post, email, or otherwise transmit any advertising or promotional materials or any other form of solicitation or unauthorized communication; (f) you will not upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment, including but not limited to interference with the services or servers or networks connected to the Internet; and (g) you will not use the Platform for fraudulent purposes.

 

Subject to these Terms, you further understand and agree that you have no ownership rights in or to any account you may have with Company, or other access to the Platform or features therein. Company may suspend, cancel your account and delete all User Content associated with your account at any time, and without notice, if Company determines that you have violated these Terms or a relevant law, or for any other reason. Company assumes no liability for any content or materials of any third parties (including you or any other users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. Without limiting the foregoing, the Company will have the right (but not the obligation) to remove any content that violates these Terms or is deemed by us, in our sole discretion, to be otherwise objectionable, and reserves the right to permanently restrict access to the Platform or a user account.

 

By displaying, publishing, or otherwise posting any User Content on or through the Platform, you hereby grant to Company a non-exclusive, sub-licensable, worldwide, fully-paid, perpetual and irrevocable, and royalty free license to use, modify, publicly perform, publicly display, remove, delete, reproduce, and distribute such User Content in any and all media now known or hereinafter developed without the requirement to make payment to you or to any third party or the need to seek any third party permission. This license includes the right to host, index, cache, distribute, and tag any User Content, as well as the right to sublicense User Content to third parties, including other users, for use on other media or platforms known or hereinafter developed, such as for use on mobile phones, in video or music software computer programs. In addition, you waive all moral rights in and to all User Content that you display, publish, or otherwise post on or through the Platform in favor of Company. You continue to retain all of your ownership rights in your User Content, and you continue to have any right to use your User Content in any way you choose, subject to these Terms and the license described herein. You represent and warrant that you own the content submitted, displayed, published or posted by you on the Platform and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any content you submit, and Company’ use thereof does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity. 

 

You agree to indemnify and hold Company, its parents, subsidiaries, and their respective affiliates, officers, directors, employees, shopping center owners, and website contractors and each of their officers, employees and agents harmless from any claims, damages and expenses, including reasonable attorneys’ fees and costs, related to your use of the Platform, your violation of these Terms, including the posting policy above, or which arise from the use of User Content you submitted, posted, or otherwise provided to Company or this Platform. 

 

The use of the Platform on a mobile device requires use of a mobile device and wireless mobile data service, which must be obtained from your wireless carrier, and may require internet access, which must be obtained from your service provider. You are responsible for obtaining and paying for such additional services and obtaining a suitable device, including without limitation all usage charges related thereto. You may be required to send and receive, at your cost, electronic communications related to the Platform, including without limitation administrative messages, service announcements, diagnostic data reports, and Platform updates, from Company, your wireless service provider or third party service providers. If you do not have an unlimited wireless mobile data plan, you may incur additional charges from your wireless service provider in connection with your use of the Platform. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the Platform, including but not limited to payment of all third party fees associated therewith, including fees for information sent to or through the Platform. Company may make available for download certain Platform updates or upgrades to the Platform to update, enhance, modify, or further develop the Platform (“Platform Updates”). Company may, at its discretion, automatically upload Platform Updates to your device. You agree to accept these Platform Updates, and to pay for any additional costs associated with receiving them. The Platform and Platform Updates are subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Platform and Platform Updates. These laws include restrictions on destinations, end users, and end use.

 

3. Copyright Infringement

 

If you are a trademark or copyright owner, believe in in good faith that materials on the Platform violate your trademark or copyright rights, please send us a notification to copright@feastables.com, requesting that Feastables remove such material or block access to it. Please include the following information, as required by the Digital Millennium Copyright Act (the “DMCA”)

 

• - Identify the copyrighted work(s) you claim is infringed.

 

• - Identify the material you claim is infringing the copyright(s), and provide enough information for us to reasonably locate that material.

 

• - Include a physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner’s behalf (the “Claimant”).

 

• - Include the Claimant’s name, address, and telephone number(s), and email address (if available).

 

• - Include a statement that the Claimant has a good faith belief that use of the disputed material is not authorized by the copyright owner or their agent or law.

 

• - Include a statement, under penalty of perjury, that the information in the notification of copyright infringement is accurate and that the Claimant is authorized to act on behalf of the copyright owner.

 

You acknowledge that if you fail to provide substantially all of the information listed above, your notification may not be valid. Upon receipt of your written notice, we will investigate the allegation and remove or disable access to the complained-of material at our sole discretion. 

We also will take reasonable steps to promptly notify the person who posted the subject material. We will give them the opportunity to send a counter-notification. A counter-notification must include the following, to be effective under the DMCA:

 

• - A physical or electronic signature of the person submitting the counter-notification;

 

• - Identification of the material that was removed or to which access was disabled and the location at which the material appeared before it was removed or access to it was disabled;

 

• - A statement under penalty of perjury that the material was removed or disabled due to mistake or misidentification of the material removed or disabled;

 

• - The name, address, email address and telephone number of the person submitting the counter-notification;

 

• - A statement that the person submitting the counter-notification consents to the jurisdiction of Federal District Court for his judicial district, or if the person is outside the United States, for any judicial district in which Feastables may be found, and that the person will accept service of process from the person who submitted the DMCA claim or his agent.

 

4. Accounts, Passwords, and Security

 

Certain areas of the Platform may require registration or otherwise ask you to provide information to participate in certain features or access certain content. If you elect not to provide such information, you may not be able to access certain content or participate in certain features of the Platform, or any features at all. 

 

If the Platform requires you to create an account or otherwise submit information, you must complete the specified process by providing us with current, complete, and accurate information as requested by the applicable registration form. It is your responsibility to maintain the currency, completeness, and accuracy of your registration data, and any loss caused by your failure to do so is your responsibility. During the registration process, you may be asked to enter your name and valid e-mail address and choose a sufficiently strong password. It is your responsibility to select a secure password, and to maintain the confidentiality of your password and account. Additionally, you are entirely responsible for any and all activities that occur under your account. You agree to notify Company immediately of any unauthorized use of your account. You further agree not to email, post, or otherwise disseminate any user ID, password, or other information which provides you access to the Platform. Company is not liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. If you suspect your login credentials have been compromised, please notify us immediately. Company is not responsible for any delay in shutting down your account after you have reported a breach of security to us. 

 

5. Site Transactions

 

If you choose to purchase any product, service, or merchandise that is made available through the Platform (each, a "Transaction"), you will be asked to provide certain information relevant to your Transaction (e.g., your name, credit card number, billing address, expiration date, delivery or shipping information, etc.). You represent and warrant that you (i) have the legal right to use any credit card, debit card or other payment method that you use in connection with the Transaction and (ii) are either eighteen (18) years of age or older or have a parent or legal guardian with you to make the Transaction on your behalf. By submitting Transaction information, you grant us or the third party collecting that information on our behalf the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any transaction. You understand and agree that you are charged at the time you place your order for products or services. You agree to pay all charges incurred by you, on your behalf, or by your account through the Platform, at the price in effect when such charges are incurred. You are solely responsible for any taxes applicable to your transaction. 

 

All descriptions, images, features, specifications, products, and prices of products or services are subject to change at any time without notice in our sole discretion. The inclusion of any products or services on the Platform does not imply or warrant that these products or services will be available. The ability to purchase products and services may vary based on your location, and such restrictions may change without notice. We reserve the right, in our sole discretion, to refuse or cancel any order you place with us. Some instances that may result in your order being canceled include, but are not limited to, where a product has been mispriced; when payment or billing information cannot be confirmed; or where the product is no longer in our inventory or that of our third party fulfillment provider. In the event that we cancel an order, we will attempt to notify you by contacting the email, billing address and/or phone number provided at the time you placed the order. We reserve the right to limit the available quantity of or discontinue any product or service; impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; bar you from making or completing any or all transactions; or refuse to provide you with any product or service.

 

6. Disclaimer, Representations, and Limitations of Liability

 

COMPANY MAKES NO REPRESENTATIONS ABOUT THE RELIABILITY OF THE FEATURES OF THIS PLATFORM, THE COMPANY CONTENT, USER CONTENT, OR ANY OTHER PLATFORM FEATURE, AND DISCLAIMS ALL LIABILITY IN THE EVENT OF ANY SERVICE FAILURE. THE MATERIALS AND INFORMATION ON THE PLATFORM ARE FOR INFORMATIONAL PURPOSES ONLY. Company does not endorse, verify, evaluate or guarantee any information provided by users and nothing shall be considered as an endorsement, verification or guarantee of any User Content. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which contain or suggest an endorsement by Company without the prior review and written approval of Company. 

 

The Internet may be subject to breaches of security. Company is not responsible for any resulting damage to any user’s device or computer from any such security breach, or from any virus, bugs, tampering, unauthorized intervention, fraud, error, omission, interruption, deletion, defect, delay in operation or transmission, computer line failure or any other technical or other malfunction. You should also be aware that e-mail and other submissions over the Internet may not be secure, and you should consider this before e-mailing Company any information or posting information to the Platform. Company makes no representation or warranty whatsoever regarding the suitability, functionality, performance, availability or operation of the Platform. This Platform may be temporarily unavailable due to maintenance or malfunction of computer equipment.

 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THIS PLATFORM OR ANY INFORMATION OR SOFTWARE THEREIN. TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES AND CONDITIONS THAT WOULD OTHERWISE BE IMPLIED BY STATUTE, CUSTOM OR COMMON LAW ARE EXPRESSLY EXCLUDED FROM THESE TERMS, AND DO NOT APPLY WITH RESPECT TO THE PLATFORM AND ANY INFORMATION OR SOFTWARE CONTAINED THEREIN. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGES (COLLECTIVELY, “DAMAGES”) THAT RESULT FROM THE USE OF OR INABILITY TO USE THIS PLATFORM, NOR SHALL COMPANY BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND COMPANY’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THIS PLATFORM’S RECORDS, PROGRAMS, OR SERVICES. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL COMPANY OR ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DAMAGES OF ANY KIND THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE PLATFORM, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION OF DAMAGES MAY NOT APPLY TO YOU AND THE FOREGOING PARAGRAPH SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENT ARE THE RESULT OF COMPANY’S NEGLIGENT, FRAUDULENT OR RECKLESS ACT(S) OR INTENTIONAL MISCONDUCT.

 

ANY PRODUCTS DESCRIBED ON THE PLATFORM ARE OFFERED IN JURISDICTIONS WHERE THEY MAY BE LEGALLY OFFERED FOR SALE. THE INFORMATION ON THE PLATFORM IS NOT AN OFFER OR SOLICITATION BY ANYONE TO ANYONE IN ANY JURISDICTION IN WHICH AN OFFER OR SOLICITATION CANNOT LEGALLY BE MADE, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE A SOLICITATION.

 

7. Third Party Websites, Applications, and Services

 

This Platform may hyperlink to other third-party services, websites, applications, software, and other content from third-party providers such as social media partners, wireless carriers, and third-party software application developers (“Third-Party Services”). Third-Party Services are not maintained by or related to Company. Hyperlinks are provided as a convenience to users and are not sponsored by or affiliated with this Platform or Company, and Company makes no representations or warranties about the content, completeness, or accuracy of those Third-Party Services. Company is not responsible for the availability of such Third-Party Services, and does not endorse nor is responsible or liable for any content or other materials on or available from such Third-Party Services. Your use of the Third-Party Services may be subject to additional terms, including software license terms, of those third parties. 

 

Information you submit through a Third-Party Service is subject to the terms of that Third-Party Service’s privacy policy, and Company has no control over how information through a Third-Party Service is collected, used, or otherwise handled. Users who utilize Third-Party Services should be aware that account and other personal information held by those third parties may be transmitted through and stored on servers and/or applications located in the United States and elsewhere. You understand and agree that the companies that provide the Third-Party Services may access, use and share certain information about you, if you use the Third-Party Services. You understand and agree Company is not responsible for these companies, or their use of any of the information you submit through a Third-Party Service. Your use of the Third-Party Services is at your own risk.

 

8. Additional Terms Applicable to Third Party Providers

 

The following additional terms and conditions are applicable with respect to your use of a third party platform to access and download the Platform or any subsequent updates thereto, such as Apple, Inc., Amazon.com, Inc., Google, Inc., or any other similar third party “app store” or platform (each a “Provider”):

 

1.    You acknowledge and agree that (A) these Terms are binding between you and Company only, and the Providers are not a party to these Terms, and (B) as between Company and such Provider, it is Company that is responsible for the mobile application and the content thereof. You must use the Provider’s mobile application only on such Provider-branded product that runs the third party platform. Your use of the mobile application must comply with the terms of use applicable to the Provider source from which you obtain it. You acknowledge that the Provider has no obligation to furnish you with any maintenance and support services with respect to the mobile application.

 

2.    You acknowledge that the Provider is not responsible for addressing any claims you have or any claims of any third party relating to the mobile application or your possession and use of the mobile application, including, but not limited to: (A) product warranty or liability claims; (B) any claim that the mobile application fails to conform to any applicable legal or regulatory requirement; (C) claims arising under consumer protection or similar legislation; or (D) claims that the mobile application infringes a third party’s intellectual property rights, such that you will not hold such Provider responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.

 

3.    In the event of any failure of the Provider version of the mobile application to conform to any applicable warranty that has not been effectively disclaimed by these Terms, you may notify such Provider, and such Provider will refund the purchase price for the mobile application (if any) to you; to the maximum extent permitted by applicable law, such Provider will have no other warranty obligation whatsoever with respect to the mobile application, and, as between such Provider and Company, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Company’ responsibility, but only to the extent provided by these Terms. Please read the entire Terms, as other sections of these Terms limit Company’s liability in this regard.

 

4.    The Providers are third-party beneficiaries of these Terms. Upon your acceptance of the Terms, such Providers will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third party beneficiary thereof. There are no other third-party beneficiaries of the Terms.

 

9. Miscellaneous

 

Both you and Company acknowledge and agree that no partnership, joint venture or agency is formed and neither of you nor Company has the power or the authority to obligate or bind the other. 

 

These Terms will be governed by and construed in accordance with the internal laws of Illinois without regard to conflicts of laws principles. Except as otherwise provided herein, by using this Platform, you agree that any litigation shall be subject to the exclusive jurisdiction of the state or federal courts located in New York, New York. YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THIS PLATFORM AND/OR THESE TERMS WILL BE RESOLVED WITHOUT RESORT TO ANY FORM OF CLASS ACTION. These Terms operate to the fullest extent permissible by law. 

 

You agree, to the extent permissible by law, that any claim or cause of action arising of your use of the Platform must be filed within one (1) year after such claim or cause of action arose or be forever barred.

 

On certain areas of the Platform, you may be given the ability to provide us with personal information. The use of information you have provided to Company, or that Company have collected and retained relating to your use of the Platform, is governed by our Privacy Policy. By using the Platform, you acknowledge you have read and understood the Company Privacy Policy. Please read the Privacy Policy for more information about Company’s information collection and use practices. To view Company’s Privacy Policy, click here.

 

The failure of Company to comply with these Terms because of an act of God, pandemics/epidemics, war, fire, riot, terrorism, earthquake, actions of federal, state, provincial/territorial, or local governmental authorities or for any other reason beyond the reasonable control of Company, shall not be deemed a breach of these Terms. 

 

Company may refer potential violations of law(s) or regulation(s) to authorities or other persons or entities that it deems appropriate, may cooperate in the investigation of any suspected criminal or civil wrongdoing, and will cooperate with authorities when required to do so by law, subpoena, or when the public and/or Company’ safety or rights are implicated. Company assumes no obligation to inform you that your information has been disclosed to any law enforcement or government agency or authority. If Company fails to act with respect to your breach or anyone else’s breach on any occasion, Company is not waiving its right to act with respect to future or similar breaches. 

 

If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

 

These Terms constitute a binding agreement between you and Company, accepted by you upon your use of the Platform. Except as otherwise indicated in this Terms, these Terms constitute the entire agreement between you and Company regarding the use of the Platform. By using the Platform you represent that you are capable of entering into a binding agreement.