Effective Date: August 4, 2021
IMPORTANT. READ THIS ENTIRE AGREEMENT CAREFULLY
A Summary and Table of Contents are provided for convenience.
These Terms of Service (“Agreement“) apply to all InMarket Media, LLC web sites, including www.inmarket.com, www.checkpoints.com, www.listbliss.com, www.shoppinglistapp.com, www.keyringapp.com, the InMarket applications for Apple iOS and/or Google’s Android Operating System known as CheckPoints, List Ease, and Key Ring, any other InMarket sites or mobile device applications that link to or include this Agreement, and other web-based or interactive features, downloads, applications and widgets available through such sites or apps that post a link to this Agreement, regardless of whether accessed via computer, mobile device or otherwise (collectively and individually, “Site/App”), and any and all support services related thereto. The Site/App is owned and controlled by InMarket Media LLC (“InMarket,” “we,” “our,” or “us“).
This Agreement sets forth the terms and conditions governing your use of the Site/App. If you are accessing the Site/App via our application available within Apple Inc.’s (“Apple“) App Store (“Apple Platform”), you and InMarket acknowledge that this Agreement is entered into between you and InMarket and that Apple is not a party to this Agreement. If you are accessing the Site/App via our application available within the Google Play Store (“Google Platform”), you and InMarket acknowledge that this Agreement is entered into between you and InMarket and that Google is not a party to this Agreement. Neither Apple nor Google is a sponsor of any InMarket sweepstakes, nor do they endorse this service or sponsor any prize redemptions.
By accessing or using the Site/App, you accept and agree to be legally bound by this Agreement. If you do not agree with this Agreement, do not install, access, or use the Site/App and delete the App from your devices.
We may post additional terms or agreements that apply to certain features we offer on the Site/App (“Additional Terms”), and you may be subject to such Additional Terms when you access those features. If there is a conflict between this Agreement and any Additional Terms, the Additional Terms will control unless they expressly provide otherwise.
OUR SITE/APP MAY USE LOCATION SERVICES TO LOCATE YOU IF YOU ENABLE SUCH LOCATION SERVICES. IF YOU CHOOSE TO USE SUCH A SITE/APP, YOU CONSENT TO INMARKET AND ITS THIRD PARTY PROVIDER DETERMINING YOUR LOCATION. IF YOU DO NOT WANT TO CONTINUE LOCATION-BASED SERVICES YOU CAN UNINSTALL THE SITE/APP. THE LOCATION-BASED SERVICES FEATURES ARE FOR INDIVIDUAL USE ONLY AND SHOULD NOT BE USED OR RELIED ON AS AN EMERGENCY LOCATOR SYSTEM, USED WHILE DRIVING OR OPERATING VEHICLES, USED IN CONNECTION WITH ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, OR ANY OTHER SITUATION IN WHICH THE FAILURE OR INACCURACY OF THE LOCATION-BASED SERVICES COULD LEAD TO DEATH, PERSONAL INJURY OR PROPERTY DAMAGE. THE LOCATION-BASED SERVICES ARE NOT SUITED OR INTENDED FOR FAMILY-FINDING PURPOSES, FLEET TRACKING, OR ANY TYPE OF BUSINESS OR ENTERPRISE USE – OTHER PRODUCTS EXIST TODAY THAT MAY BE USED SPECIFICALLY FOR THESE PURPOSES.
SUMMARY OF KEY POINTS
- You agree to use the Site/App legitimately, honestly and in accordance with this Agreement and any Additional Terms. You understand that your account, points and any other rewards or potential rewards accumulated (if any) may (in our sole discretion) be terminated or forfeited without any liability to you if you use the Site/App in a fraudulent manner or do not use the Site/App legitimately, honestly and in accordance with this Agreement and any Additional Terms. We reserve the right to review your activity in connection with the Site/App to identify such actions.
- If you discuss, publish, or share any information or opinion about InMarket or the Site/App or any element thereof (including, without limitation, an InMarket referral program), you agree to only do so in an honest manner that reflects your actual experiences with the Site/App and disclose any rewards or value you may be receiving from us. Regardless, except if done in strict accordance with written rules and instructions provided by InMarket in connection with an Activity (defined below), you must not discuss or promote the Site/App or InMarket on third party sites that prohibit such activity, including, without limitation, the Apple App Store, or falsely advertise or disseminate any information regarding InMarket or the Site/App.
- You agree to grant InMarket a broad license to use the content that you submit through the Site/App (such as images and written comments). See Section 3(a).
- You agree to indemnify InMarket for claims arising from your breach of this Agreement or arising from the content you submit through the Site/App, among other types of claims. See Section 12.
- YOU AGREE TO ARBITRATE DISPUTES RATHER THAN GOING TO COURT. See Section 15.
- Your use of the Site/App is AS IS, without warranty and will result in no liability to us. See Sections 10 and 11.
- You understand that if you share or give access to your content those persons can further share it and your ability to change share settings may be limited.
TABLE OF CONTENTS
1……… REWARDS PROGRAMS
2……… THE SITE/APP
3……… USER COMMENTS AND POSTINGS & SHARED USER CONTENT
4……… ACCEPTABLE USE
5……… ACCOUNTS, OPERATIONS, USERNAMES & TERMINATION
6……… PUSH MESSAGES; TEXT MESSAGES
7……… THIRD PARTY LINKS
8……… SWEEPSTAKES, CONTESTS, AND PROMOTIONS
9……… COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY AND RELATED COMPLAINTS
10……. DISCLAIMER OF WARRANTIES
11……. LIMITATION OF LIABILITY
13……. TERMINATION, MODIFICATION OR SUSPENSION OF THE SITE/APP OR PROGRAM
14……. JURISDICTION / LOCATION
15……. DISPUTE RESOLUTION / ARBITRATION
16……. SEVERABILITY OF AGREEMENT
17……. APPLICABLE LAW
18……. THIRD PARTY BENEFICIARY & INTELLECTUAL PROPERTY
19……. MODIFICATIONS TO THIS AGREEMENT
20……. CONTACT INFORMATION
- REWARDS PROGRAMS
Overview. InMarket may offer rewards programs under which you may earn points that can be redeemed for rewards (each a “Program”). Not all of our Site/Apps include a rewards program, and Programs may include Additional Terms. To participate a Program, you must be a legal resident of the 50 United States or the District of Columbia (or a resident of a jurisdiction where your participation is legal pursuant to the terms hereof and does not create any liability or registration, bonding, tax or other affirmative obligation for us), and agree to this Agreement. All Programs are void where prohibited by law. Additional Terms may apply to your participation in activities allowing you to earn points (“Activities”). InMarket may limit or restrict your ability to participate in a Program in its sole discretion and may void your points and any rewards or potential rewards you have accumulated in a Program if you do not comply with the Agreement or any applicable Additional Terms. You agree to abide by the final and binding decisions of InMarket regarding a Program and your participation in it. InMarket may change, suspend or cancel a Program at any time without notice including any points you may have accrued. InMarket further has the right to end a Program by providing 6 months notice to the e-mail address you provided when you registered for a Program or last updated your account.
Registration. To participate in a Program and redeem points, you must register with the applicable Site/App. Only one account is permitted per person. To redeem and receive rewards, you may be required to provide your real name, phone number, mailing address, e-mail address, Social Security number for tax purposes and other information. Other personal information may be needed for certain rewards such as airline mileage account numbers for an airline miles reward. InMarket reserves the right to verify this information and suspend any account with fraudulent or multiple registered accounts per person. You are responsible for keeping your personal information current.
Earning Points. You can earn points in a Program by participating in Activities. For example, an Activity may require you to visit a particular store. If you choose to participate and follow the instructions associated with the Activity, you will be awarded the points associated with completing that Activity. Another activity may require you to scan a barcode on a particular product in a store. If you scan the product and follow the instructions associated with the Activity, you will be awarded the points associated with completing the activity. However, there may be limitations on Activities and rewards. For example, InMarket may at any point during a Program:
- change or limit your ability to participate in certain Activities,
- change or limit the allowable frequency of Activities,
- change or limit the number of points you can earn for an Activity,
- change or limit the number of total points you can earn per time period, or
- change the Activities and rewards that are available or the number of points required for a particular reward.
You must use the applicable Site/App to participate in Activities and earn points. Any Activities requiring barcode scanning and/or being physically located in a certain place must be bona fide scans of the actual product in that place and must occur in the specific place, as applicable. You must not use any method to scan or transmit an artificial scan or to falsify your location in order to attempt to meet the requirements of the Activity. You must not use any “bot,” simulator, macro, cheat code or other automated means of participating in Activities or a Program or to earn points. You may not use the program with any device that has been jailbroken, rooted, hacked, or otherwise do not have original equipment manufacturers’ operating systems. You may not register or use more than one account for any reason such as to avoid restrictions or other limitations on Activities, points, rewards or a Program. InMarket reserves the right to withhold points and rewards and/or terminate the account of any user suspected of activities that violate this Agreement or are unlawful. Points earned are only valid for redemption within a Program.
Redeeming Your Points for Rewards / Point Restrictions. Points that you have earned can be redeemed for rewards offered in a Program pursuant to its terms. If there is a particular reward offered that you would like to receive, you should redeem your points for that reward as soon as possible because supplies may be limited and the Program may be discontinued at any time in our sole discretion. Rewards are awarded on a first-come, first-served and while-supplies-last basis. In addition, your current balance of points and any rewards or potential rewards expire if, for a 45 day period, you do not successfully complete an Activity or redeem points for a reward. If you redeem your points for a reward and InMarket determines that the reward was out of stock or unavailable for whatever reason, InMarket will “refund” the points that you exchanged for the reward, and this “refund” will constitute an event in connection with your account, resetting the 45 period during which you have to successfully complete an Activity or redeem points for a reward (or else your points will expire).
You agree to sign an affidavit, release of liability, publicity release or similar agreement if requested by InMarket prior to receiving your reward. Rewards are provided “as is” with no warranty or guarantee, either express or implied by InMarket (see “Disclaimer of Warranties” below). Points are not your personal property, and are not descendible, may not be inherited, bartered or sold to any third party. You cannot transfer points or have rewards sent to any third party (except for Charitable Donations – defined and described below). Points may not be redeemed with InMarket for money or exchanged with any third party for money. The only way to use points is to redeem them for Program rewards to be sent to yourself, or to make a Charitable Donation of your points (see below). Products made available as rewards may be refurbished products. You agree that you will not re-sell any rewards. Once you order a reward, it cannot be cancelled by you nor can you return your reward for a refund of points. You are solely responsible for all federal, state and local taxes and any other costs or expenses of accepting and using the reward, unless InMarket specifically states otherwise in writing in connection with the reward. Some rewards may have age eligibility requirements. InMarket reserves the right to verify your eligibility qualifications prior to fulfilling a reward.
Delivery of Rewards. Rewards will be e-mailed to your e-mail address or mailed to your U.S. postal address, as applicable, that you provided when you registered for a Program or last updated your Program account. No rewards will be shipped to P.O. Boxes, APO (Army Post Office) or FPO (Fleet Post Office) addresses, or destinations outside the 50 United States or District of Columbia. E-mailed rewards are sent within approximately 7 days from the date your order is processed, unless the Site/App states a different schedule or the particular reward you ordered is limited in quantity, backordered, or out of stock. For users on the Android platform, each user must have the ability to receive SMS text messages to verify the account (and will be responsible for any carrier charges for such SMS text messages) for account registration points, referral points, and reward redemptions. Rewards shipped via postal mail will be shipped within approximately 8 to 12 weeks from the date your order is processed, unless the Site/App states a different schedule or the particular reward you ordered is limited in quantity, backordered, or out of stock. InMarket is not liable for any damages to, losses of or delays in any shipments. Rewards that are undeliverable for whatever reason (including because your Program account information is incorrect) will not be re-sent and are forfeited, and the points will not be refunded. After ordering a reward, you may receive a confirmation e-mail with an order number, which you should retain for your records. If you contact InMarket in the future about your reward order, you may be required to provide your order number.
Charitable Donations. You may choose to contribute your points to a charity, in which case InMarket will convert your points to a cash value determined by InMarket at that time (“Charitable Donation”) and transfer it to the charity as part of an annual transfer (see below). InMarket will donate a minimum of $100 annually to each charity listed in the reward program schedule of rewards regardless of total points contributed. You agree not to request or obtain any money in exchange for your donation. After you make a Charitable Donation, it cannot be cancelled or refunded. InMarket’s corresponding payment to the charity are made based on the total points contributed from all users from September 1st through August 31st of each year, and will be transferred to the charity by October 30th. If the charity you choose is no longer available at the time the transfer is scheduled to take place, or if the donation is undeliverable then your Charitable Donation will be transferred to a charity of InMarket’s choosing. The InMarket Parties (as defined below) are not liable for any losses or delays of any payments to charities.
Third Party Trademarks. The names of individuals, groups, companies, products and services related to a Program and Program rewards are used for identification purposes only and may be protected by the intellectual property rights, such as trademarks and copyrights, of their respective owners. The mention of any individual, group or company, or the inclusion of a product or service within a Program or as a Program reward does not imply any association with or endorsement by such individual, group or company or the manufacturer or distributor of such product or service and, except as otherwise indicated, no association or endorsement is intended or should be inferred.
- THE SITE/APP
Each Site/App contains a variety of (1) copyrighted material, such as information, articles, opinions, directories, guides, graphics, photographs, illustrations, images, video and audio clips, advertising and promotional materials, data, software, compilations, designs, and graphical interfaces, and (2) logos and trade identities, including the names of participating stores and brands, whether registered or unregistered, and (3) other forms of intellectual property (all of the foregoing collectively and individually are referred to as “Content”).
Ownership. Each Site/App (including past, present and future versions) and its Content are owned by InMarket or its licensors. All right, title, and interest in and to the Content is the property of InMarket or its licensors, and is protected by U.S. and international copyright, trademark, patent, or other proprietary rights and laws. Except to the minimum extent otherwise permitted under applicable law or this Agreement, no copying or other exploitation of Content is permitted without the express prior written permission of InMarket or the applicable owner of the Content regardless of the appearance or omission of a copyright or trademark notice on the Content.
License. Subject to your compliance with this Agreement, we grant you a non-exclusive, non-transferable, revocable, limited license to view, download and use a single copy of the Content retrieved from the Site/App for your personal, non-commercial use only and, when used on an Apple Platform, as permitted by the Usage Rules set forth in the App Store Terms of Service. If you are using the Site/App via the Apple Platform, you acknowledge that InMarket, and not Apple, is responsible for the Site/App and Content. You may not remove or obscure any copyright notice, trademark notice, or other proprietary rights notice displayed on or in connection with the Content. Except to the minimum extent otherwise permitted under applicable law, you may not use any Content available in any other manner or for any other purpose without the prior express written permission of InMarket or its licensor, as applicable.
Prohibited Activities. You agree that you will not: (a) use any robot, spider, rover, scraper, or any other data mining or information extraction technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy or distribute the Content, nor will you (b) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Content in any way for any public or commercial purpose except as specifically permitted by this Agreement (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Site/App or its Content (d) reverse engineer, disassemble, decompile, decode, or adapt the Site/App, or attempt to derive or gain access to the source code of the Site/App, in whole or in part, (e) bypass or breach any security device or protection used for or contained in the Site/App, (f) use the Site/App in any manner or for any purpose that infringes, misappropriates, or otherwise violates any right or privilege (including an intellectual property right or privacy right) of any person, or that violates any applicable law, statute, or regulation, or any judicial or administrative order, rule, or judgment, (g) use the Site/App for purposes of benchmarking or competitive analysis of the Site/App, developing, using, or providing a competing product or service; or, any other purpose that is to our detriment or commercial disadvantage, (h) use the Site/App on any device or equipment not permitted by the Site/App’s technical specifications, or (i) access or use the Site/App in any manner that is inconsistent with the Agreement.
Title. Title to any Content that you download or print is not transferred to you. You may own the medium on which the Content is recorded or printed, but we or our licensor retain all right, title, and interest in and to such Content, and all intellectual property rights in the Content. All rights not expressly granted in this Agreement are expressly reserved to InMarket or its licensors.
Separately Licensed Content. In some instances, certain Content that you download from the Site/App is subject to a separate license agreement or other Additional Terms, which will be provided at the time you download or view the Content.
Third Party Application; Open Source Licenses. The Site/App may include components that are provided by a third party (“Third Party Application”) or that are subject to an open source license agreement, including components available under the GNU Affero General Public License, GNU General Public License, GNU Lesser General Public License, Mozilla Public License, Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative (each individually, or collectively, referred to as an “Open Source Component”). Any use of a Third Party Application or an Open Source Component shall be solely governed by the terms and conditions of the applicable Third Party Application license or open source license(s) and not by the terms of this Agreement. When appropriate, the applicable licenses shall be set forth in the readme or about files of the Site/App or otherwise made available by InMarket.
Updates. InMarket may, from time to time and in its sole discretion, develop and provide updates to the Site/App, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Site/App. You agree that InMarket has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of any Site/App. Based on your device’s settings, when the device is connected to the internet either: (i) the Site/App will automatically download and install all available Updates, or (ii) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and you hereby acknowledge and agree that the Site/App or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Site/App and be subject to all terms and conditions of this Agreement.
- USER COMMENTS AND POSTINGS & SHARED USER CONTENT
We may provide user comment areas, message boards, product identification, product reviews, or other interactive areas on the Site/App (“User Forums”) to give users of the Site/App a forum to community edit content, express their opinions, or share their ideas, information, materials, and other user-generated content (each, a “Submission”). In addition, we may provide tools that enable you to share user content, such as lists, with others (“Shared Content”).
Rights You Grant to Us. Whenever you send, post, upload, or otherwise make available (collectively, “Submit”) a Submission to a User Forum or some other aspect of the Site/App or directly to InMarket (including by e-mail or text message) you: (1) grant to InMarket an irrevocable, worldwide, nonexclusive, perpetual, fully sub-licensable and assignable, royalty-free license to use, exploit, reproduce, modify, translate, incorporate in other works, create derivative works from, publish, broadcast and perform your Submission and your user name, first and last name, profile picture, likeness and other identifying information in connection with your Submission via any media now known or later developed, without any compensation or other obligations (e.g., attribution) to you, and (2) waive all of your moral rights in each Submission, even if your Submission is altered or changed in a manner not agreeable to you.
No Responsibility. We are not responsible for, and we do not endorse, the Submissions posted in User Forums or Shared Content.
No Obligation to Prescreen. We do not have, and do not undertake, any obligation to prescreen, monitor, edit, or remove any Submission or Shared Content. It is user content for which we are not responsible, so beware that it may not be appropriate or accurate. However, we retain the right (but not the obligation), in our sole discretion and for any reason, to prescreen, monitor, edit, refuse to accept, post, remove, or move any Submission or Shared Content to enforce this Agreement, including the Rules (defined below). If your Submission or Shared Content contains offensive, indecent, or otherwise objectionable content, or infringes on the rights of any third parties, you bear legal responsibility for your objectionable or infringing content.
Representations You Make to Us. You are solely responsible for all of your Submissions and Shared Content. By Submitting a Submission or sharing Shared Content, you represent and warrant to InMarket that each Submission and Shared Content: (1) is not confidential and that you have all necessary permission to Submit such Submission or share such Shared Content; and (2) does not infringe upon, misappropriate or violate the rights of any third parties, including, without limitation, any intellectual property rights, rights of publicity or privacy, or any other proprietary rights.
No Obligation to Use. You agree and understand that we are not obligated to post, keep, transmit, make available or use your Submissions or Shared Content.
(g) Shared Content Cannot be Unshared. Just like e-mails, once you agree to share Shared Content that cannot be undone and recipients can further share it with others. You can create new content with different sharing, but you cannot remove access to someone on content for which you previously gave them access, even if that content continues to exist.
- ACCEPTABLE USE
These rules set forth in this section (“Rules”) are to help you understand the conduct expected of people who interact with the Site/App. You may use the Site/App only for lawful purposes, and you agree that you will at all times comply with all applicable laws, rules and regulations. Your participation in the User Forums AND SHARING OF Shared Content is subject to this Agreement, including these Rules. If you are using the Site/App on an Apple Platform, you acknowledge and agree that your use of the Site/App is also subject to Apple’s Usage Rules as set forth in the iTunes Store Terms of Service.
Submissions and Shared Content must be yours. All Submissions and Shared Content must be original with you, not copied from someone else’s work, and you must have all rights in the Submissions and Shared Content; OR, all persons who contributed in any way or have any rights to your Submissions and Shared Content, or otherwise appear in the Submissions and Shared Content, have given you permission to Submit the Submissions on the Site/App and elsewhere and to share the Shared Content. Your Submissions and Shared Content may not contain any trademarks (including trademarked phrases), copyrighted materials or any other content that is not original to you or in the public domain. Do not Submit any Submissions, or share any Shared Content, that belongs to other people or companies and pass it off as your own. This includes any content that you have found elsewhere on the Internet.
Please act appropriately. Express yourself with non-offensive, individual self-expression. Be respectful of others’ opinions and comments so we can continue to build User Forums for everyone to enjoy. If you think your Submission or Shared Content might offend someone or embarrass someone, it doesn’t belong on the User Forums and should not be shared via our Site/App. Cursing, flaming, harassing, stalking, posting insulting comments, personal attacks, gossip or similar conduct are prohibited. Your Submissions and Shared Content should not threaten, abuse or harm others. Your Submissions and Shared Content should not include any negative comments that are connected to race, religion, national origin, gender, sexual preference or physical handicap or that are defamatory, slanderous, indecent, obscene, pornographic or sexually explicit. If you discover content that violates this Agreement, you may report such abuse to feedback@InMarket.com.
Do not use the User Forums for your commercial purposes. Your Submissions may not advertise or promote your own product or service unless your relationship is disclosed to and approved by us in advance in writing. You may not use your Submissions or Shared Content for a pyramid or other multi-tiered marketing scheme.
Do not Submit Submissions or share Shared Content that is/are inappropriate or illegal. Your Submissions and Shared Content must not promote any illegal activity. If someone could go to jail for taking action suggested by your Submissions or Shared Content, don’t Submit or share it. If you do Submit Submissions, or share Shared Content, that is/are illegal or in violation of applicable law, we reserve the right to take action that we deem appropriate, in our sole discretion, including reporting you to the proper governmental authorities.
No violence. Your Submissions and Shared Content may not promote violence or describe how to perform a violent act.
Be honest and do not misrepresent yourself. Do not impersonate any other person, user or company or upload or Submit Submissions, or share Shared Content, that you know are false, fraudulent, deceptive, inaccurate, misleading or that misrepresents your identity or affiliation with a person or company.
Others are watching. We hope that you will use the User Forums to exchange information and content and have discussions with other people. However, please remember that the User Forums are public and Submissions that you Submit to the User Forums will be accessible and viewable by others. Do not Submit personal information (e.g., first and last name, password, phone number, address, e-mail address or other personally identifiable information or contact information). Remember that Shared Content cannot be unshared.
Don’t share other people’s personal information. Your Submissions may not reveal another person’s address, phone number, e-mail address, credit card number or any information that may be used to track, contact, or impersonate that individual or that is personal in nature. Do not include personal information of others in Shared Content you do not have authorization to so share.
Don’t damage the Site/App or anyone’s mobile devices. Do not Submit viruses, Trojan horses, spyware or any other technologies that could impact the operation of the Site/App, any mobile device or computer system.
If you discuss, publish, or share any information or opinion about InMarket or the Site/App or any element thereof (including, without limitation, a InMarket referral program), you agree to only do so in an honest manner that reflects your actual experiences with the Site/App and disclose any rewards or value you may be receiving from us. Regardless, except if done in strict accordance with written rules and instructions provided by InMarket in connection with an Activity (defined below), you must not discuss or promote the Site/App or InMarket on third party sites that prohibit such activity, including, without limitation, the Apple App Store, or falsely advertise or disseminate any information regarding InMarket or the Site/App.
- ACCOUNTS, OPERATIONS, USERNAMES & TERMINATION
Certain areas of a Site/App may require registration or may otherwise ask you to provide information to participate in certain features, such as to participate in a Program. If you register for any feature that requires a username, you will select your own username at the time of registration. You may not use a username that is already being used by someone else; that may impersonate another person or entity; that violates the intellectual property or other rights of any person or entity; that is vulgar or otherwise offensive; or that we reject for any other reason in our sole discretion.
If you register with a Site/App, you agree to accept responsibility for all activities that occur under your account. You are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your mobile device so that others may not access the password protected portion of the Site/App using your account. You agree to immediately notify us of any unauthorized use of your account or any other breach of security. We will not be liable for any loss or damage arising from lost or stolen passwords or rewards, your negligence, or failure to comply with any of the foregoing obligations.
If you register with a Site/App, you agree to provide true, accurate, current, and complete information about yourself, and, as permitted, to maintain and update it continuously and promptly to keep it true, accurate, current and complete. You agree that if any information you provide, or if we have reasonable grounds to suspect that any information you provide, is false, inaccurate, outdated, or incomplete, we may terminate your account.
You acknowledge and agree that the Site/App may access and use your computer or device and may set or change settings on your computer or device in connection with the Site/App’s operation.
We reserve the right to terminate an account and/or deny access to the entire Site/App or any portion of the Site/App to any person, in our sole discretion, for any or no reason.
Site/App removal is via the standard application deletion process. Please contact or see instructions from your device manufacturer, carrier, or applicable platform provider for deletion. You may terminate your account by submitting a request at support.CheckPoints.com. Please specify the Site/App and your user information.
- PUSH MESSAGES; TEXT MESSAGES
As part of the Site/App, you may receive push notifications, text messages (SMS), MMS messages or other types of messages directly sent to you outside or inside the Site/App (collectively, “Push Messages”). You may control the Push Messages in your phone’s settings and/or via your account except certain important service announcements. Some of the Push Messages may be related to your location or to preferences pertaining to a Program or Activities. Standard messaging, data and other fees may be charged by your carrier. For users on the Android platform, each user must have the ability to receive SMS text messages to verify the account (and will be responsible for any carrier charges for such SMS text messages) for account registration points, referral points, and reward redemptions. Fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Push Messages and certain Push Messages may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues. As applicable, instructions regarding how to opt-out of Push Messages will be disclosed in connection with Push Messages (typically requiring you to respond with certain keywords such as “STOP,” “CANCEL,” “END,” “UNSUBSCRIBE” or “QUIT,”). In the case of Apple iOS Push Messages, they can be discontinued in your device’s settings or by deleting the Site/App. We may collect information related to your use of Push Messages. If you have registered for Push Messages, you agree to notify InMarket of any changes to your mobile number, as applicable, and update your account on the Site/App to reflect this change.
- THIRD PARTY LINKS
- SWEEPSTAKES, CONTESTS, AND PROMOTIONS
Any sweepstakes, contests or other promotions (collectively, “Promotions”) that may be offered via any Site/App may be governed by a separate set of rules that may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the Promotion, use of Submissions, and disclosures about how your personal information may be used. It is your responsibility to read these rules to determine whether or not you want to and are eligible to participate, register and/or enter, and to determine the applicable terms and conditions of the Promotion. By participating in a Promotion, you will be subject to those official rules, and you agree to comply with and abide by such rules and the decisions of the sponsor(s) identified therein.
- COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY AND RELATED COMPLAINTS
You may not use a Site/App for any purpose or in any manner that infringes the rights of any third party. InMarket encourages you to report any content on a Site/App that you believe infringes your rights. Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good faith belief that content on a Site/App infringes your copyright, trademark, or other intellectual property rights, please follow the procedures set forth below.
In accordance with the Digital Millennium Copyright Act of 1998 (the “DMCA”), InMarket has a designated agent for receiving notices of copyright infringement and InMarket follows the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide InMarket’s copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. § 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement that the complaining party has 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 (f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
InMarket’s copyright agent for notice of claims of copyright infringement on or regarding the Site/App can be reached as follows:
Name: DMCA Agent Charlie Bean
Mailing address: 1530 P B Ln #P5446, Wichita Falls, TX 76302-2612
Phone number: (310) 986-2303
E-mail address: legal@InMarket.com
If you believe that any content on the Site/App contains content that violates your rights other than copyrights, please provide InMarket at least the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (c) an explanation of what rights you own/have and why you believe the content infringes your rights sufficient for us to evaluate your complaint; and (d) accurate contact information for you. Please send your complaint regarding content on the Site/App to InMarket Legal at the contact information listed above.
We have a policy of terminating the accounts of users who (in our reasonable discretion) are repeat infringers.
InMarket will provide you with notice if your materials have been removed based on a third party complaint of alleged infringement of the third party’s intellectual property rights.
- DISCLAIMER OF WARRANTIES
EACH SITE/APP, ANY AND ALL SUPPORT SERVICES PROVIDED IN CONNECTION WITH THE SITE/APP, EACH PROGRAM AND ALL REWARDS (INCLUDING, WITHOUT LIMITATION, ALL CONTENT, LINKS, MESSAGES, PRODUCTS, SERVICES, DOWNLOADS, WIDGETS AND OTHER MATERIALS CONTAINED ON AND/OR OBTAINED THROUGH THE SITE/APP) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, INMARKET AND ITS AFFILIATES AND THEIR RESPECTIVE MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, RETAILERS, ADVERTISING AND PROMOTION AGENCIES, AND OTHER REPRESENTATIVES (COLLECTIVELY THE “INMARKET PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND UNDERTAKINGS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, THE INMARKET PARTIES DO NOT WARRANT THAT THE SITE/APP WILL BE AVAILABLE OR THAT YOUR USE OF THE SITE/APP WILL BE TIMELY, UNINTERRUPTED, ERROR-FREE, OR SECURE, THAT DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SITE/APP (OR THE SERVER THAT MAKES IT AVAILABLE) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
You understands, acknowledge, and agree, that access to certain features within the Site/App, including but not limited to registration of the Site/App, requires an Internet connection for which you are solely responsible AND You are solely responsible for payment of any third party fees associated with your Internet connection, including but not limited to Internet service provider or airtime charges. Operation of the Site/App may be limited or restricted depending on the capabilities, bandwidth or technical limitations of your Internet connection and service. You understand, acknowledge and agree that Internet connectivity in relation to the Site/App is provided by third parties over which InMarket has no control, and is governed by the respective terms of such third parties. The provision, quality, availability and security of such Internet connectivity, software and services are the sole responsibility of such third party. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL MOBILE DEVICE HARDWARE, SOFTWARE AND DATA PLANS NEEDED TO ACCESS AND USE THE SITE/APP, AND FOR PAYING ALL RELATED CHARGES. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE/APP. NO OPINION, ADVICE, OR STATEMENT OF ANY INMARKET PARTY, WHETHER MADE ON THE SITE/APP OR OTHERWISE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
THE INMARKET PARTIES DO NOT WARRANT THAT YOUR ACTIVITIES OR USE OF THE SITE/APP IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, THE INMARKET PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE SITE/APP, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN THE JURISDICTION WHERE YOU ACCESS OR USE THE SITE/APP.
APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW APPLIES TO THIS AGREEMENT.
IN THE EVENT OF ANY FAILURE OF THE SITE/APP TO CONFORM TO ANY WARRANTY NOT EFFECTIVELY DISCLAIMED IN THIS AGREEMENT, YOU MAY, IF YOU ARE USING THE SITE/APP ON THE APPLE PLATFORM, NOTIFY APPLE, AND APPLE WILL REFUND THE PURCHASE PRICE FOR THE SITE/APP TO YOU (IF ANY); AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE AND INMARKET WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE SITE/APP, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO A WARRANTY NOT EFFECTIVELY DISCLAIMED IN THIS AGREEMENT WILL BE INMARKET’S SOLE RESPONSIBILITY. NOTWITHSTANDING THE FOREGOING, INMARKET AND YOU ACKNOWLEDGE THAT APPLE (IF YOU ARE USING THE SITE/APP ON THE APPLE PLATFORM), HAS NO OBLIGATION TO FURNISH ANY MAINTENANCE AND SUPPORT SERVICES WITH RESPECT TO THE SITE/APP.
IF YOU ARE USING THE SITE/APP ON THE APPLE PLATFORM, THEN NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND SUBJECT TO THIS AGREEMENT, INMARKET AND YOU ACKNOWLEDGE THAT AS BETWEEN APPLE AND INMARKET, INMARKET IS RESPONSIBLE FOR ADDRESSING ANY CLAIMS YOU MAY HAVE RELATING TO THE SITE/APP OR YOUR POSSESSION AND/OR USE OF THE SITE/APP, INCLUDING, BUT NOT LIMITED TO: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE SITE/APP FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.
IN THE EVENT OF ANY FAILURE OF THE SITE/APP TO CONFORM TO ANY WARRANTY NOT EFFECTIVELY DISCLAIMED IN THIS AGREEMENT, YOU MAY, IF YOU ARE USING THE SITE/APP ON THE GOOGLE PLATFORM, NOTIFY GOOGLE, AND GOOGLE WILL REFUND THE PURCHASE PRICE FOR THE SITE/APP TO YOU (IF ANY); AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GOOGLE AND INMARKET WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE SITE/APP, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO A WARRANTY NOT EFFECTIVELY DISCLAIMED IN THIS AGREEMENT WILL BE INMARKET’S SOLE RESPONSIBILITY. NOTWITHSTANDING THE FOREGOING, INMARKET AND YOU ACKNOWLEDGE THAT GOOGLE (IF YOU ARE USING THE SITE/APP ON THE GOOGLE PLATFORM), HAS NO OBLIGATION TO FURNISH ANY MAINTENANCE AND SUPPORT SERVICES WITH RESPECT TO THE SITE/APP.
IF YOU ARE USING THE SITE/APP ON THE GOOGLE PLATFORM, THEN NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND SUBJECT TO THIS AGREEMENT, INMARKET AND YOU ACKNOWLEDGE THAT AS BETWEEN GOOGLE AND INMARKET, INMARKET IS RESPONSIBLE FOR ADDRESSING ANY CLAIMS YOU MAY HAVE RELATING TO THE SITE/APP OR YOUR POSSESSION AND/OR USE OF THE SITE/APP, INCLUDING, BUT NOT LIMITED TO: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE SITE/APP FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.
- LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL THE INMARKET PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, ECONOMIC, EXEMPLARY OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH OR RELATING TO A PROGRAM, YOUR USE OF THE SITE/APP OR YOUR INABILITY TO USE THE SITE/APP, OR FOR ANY INFORMATION, CONTENT, WIDGETS, PRODUCTS, AND/OR SERVICES OBTAINED THROUGH THE SITE/APP OR PROGRAM, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE/APP OR PARTICIPATION IN A PROGRAM, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF THE INMARKET PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO EVENT WILL THE INMARKET PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED TEN U.S. DOLLARS ($10.00). THE INMARKET PARTIES ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR MOBILE DEVICE OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION.
YOUR ACCESS TO AND USE OF THE SITE/APP IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE SITE/APP OR ANY OF THE CONTENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SITE/APP OR THE CONTENT.
YOU ACKNOWLEDGE THAT IF YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF OUR ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF THE SITE/APP OR OTHER WEB SITE OR SITE/APP OWNED OR CONTROLLED BY US OR OUR LICENSORS, OR ANY OTHER EQUITABLE REMEDY, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF THE SITE/APP OR OTHER WEB SITE OR OTHER SITE/APP.
BY ACCESSING THE SITE/APP, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
You agree to indemnify, defend and hold the InMarket Parties harmless from and against any and all claims, demands, damages, losses, investigations, liabilities, judgments, settlements, costs (including attorneys’ fees), or other expenses that directly or indirectly arise from or are otherwise directly or indirectly connected to: (a) your breach or alleged breach of this Agreement; (b) your use of the Site/App or activities in connection with the Site/App including, without limitation, your participation in a Program; (c) your Submissions or Shared Content; (d) your violation of any law, rule or regulation; or (e) your use of the Site/App to meet another User in-person, via telephone, or through other means, or to locate, organize, and/or attend any offline place or event. You will cooperate as required by the InMarket Parties in the defense of any claim. InMarket reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of InMarket.
- TERMINATION, MODIFICATION OR SUSPENSION OF THE SITE/APP OR PROGRAM
We reserve the right, at any time and without notice to you, to modify, add, suspend, or discontinue, temporarily or permanently, any Site/App or Program or any portion of any Site/App or Program, in our sole discretion. This includes the right to modify, discontinue or remove any Content, Submissions, postings, links, pages, services, or other materials at any time and for any reason. You agree that we will not be liable to you for any modification, general suspension or discontinuance of any aspect of the Site/App. We may, in our sole discretion, refuse or restrict anyone from access to the entire Site/App or any portion of the Site/App at any time for any reason.
You understand and agree that we will determine your compliance with this Agreement in our sole discretion. Any violation of this Agreement may be referred to law enforcement authorities.
Communications. You hereby agree that InMarket may, as we deem appropriate, communicate with you electronically, including by Push Messages, email to any email address that you provide to us (including through the Site/App), or by posting notices on the Site/App, and you acknowledge and agree that all such communications (i) satisfy any and all legal requirements that such communications by us be in writing and (ii) are considered to be delivered to you and received by you on the date InMarket undertakes and completes the same. You further agree to provide notice, in writing, to InMarket if your email address changes. In the event you provide InMarket with a telephone number, you hereby agree that InMarket may contact you at such telephone number about your use of the Site/App, about any of our other services or offerings, or for general informational purposes. You represent to InMarket that you are the owner or licensee of any such telephone number you provide to InMarket, you have the full right and authority to provide any such telephone number to InMarket for the purposes described herein, and you will provide notice, in writing, to InMarket in the event you no longer own or license the telephone number that was provided to InMarket.
- JURISDICTION / LOCATION
Unless otherwise specified, the Site/App and its Content are made available for use in the United States. We control and operate the Site/App from within the United States and make no representation or warranty that the Site/App, or any Content or other materials available on the Site/App, are appropriate or available for use in other locations. Those who choose to access the Site/App from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) that you are not listed on any U.S. Government list of prohibited or restricted parties.
- DISPUTE RESOLUTION / ARBITRATION
Certain portions of this section are deemed to be a “written agreement to arbitrate” under the Federal Arbitration Act. You and InMarket agree that this section satisfies the “writing” requirement of the Federal Arbitration Act.
Try to Resolve Disputes and Excluded Disputes. Except for InMarket’s rights to limit, suspend or terminate your account as set forth in this Agreement, if any controversy, allegation, or claim arises out of or relates to the Site/App, Content, your Submissions, or this Agreement (a “Dispute”), or to any of InMarket’s actual or alleged intellectual property rights including those actions set forth in subsection (E) (an “Excluded Dispute”), then you and we agree to send a written notice to the other party providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provided under your account. If no such information exists or if such information is not current, then we have no obligation under this subsection (A). Your notice to us must be sent via fax, email, or registered mail to:
Name: InMarket Media LLC, Attention: Legal
Mailing address: 1530 P B Ln #P5446, Wichita Falls, TX 76302-2612
E-mail address: legal@InMarket.com
For a period of 60 days from the date of receipt of notice from the other party, InMarket and you will attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or InMarket to resolve the Dispute or Excluded Dispute on terms that you and InMarket, in each of our sole discretion, are not comfortable.
Forums for Alternative Dispute Resolution. If we cannot resolve a Dispute as set forth in subsection (A) within 60 days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration in accordance with this subsection (B). If we cannot resolve an Excluded Dispute as set forth in subsection (A) within 60 days of receipt of the notice, then either you or we may submit the excluded dispute to formal arbitration only if you and InMarket consent, in a writing signed by you and InMarket, to have that Excluded Dispute subject to arbitration, in which case (and only in such a case), that Excluded Dispute will be deemed a “Dispute” for the remainder of this subsection (B).
Upon expiration of the applicable 60-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If the Dispute has a claimed value of less than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than 15 years’ experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with, if applicable, the AAA’s Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if InMarket elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three-member panel, with one member selected by each party and the third (who will chair the panel) selected by the two party-appointed members or by the AAA in accordance with the AAA Commercial Arbitration Rules. The arbitrator or arbitration panel, as applicable, will apply applicable law and the provisions of this Agreement, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If you and InMarket do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph, then this paragraph and the remainder of this subsection (B) will not apply to the Excluded Dispute.
If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within 60 days of the filing of a demand for arbitration, then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ Streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and InMarket consents to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.
You can obtain AAA and JAMS procedures, rules, and fee information as follows:
AAA: 800.778.7879 (http://www.adr.org)
JAMS: 949.224.1810 (http://www.jamsadr.com)
Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of this Agreement and can award the prevailing party damages and other relief (including attorneys’ fees). HOWEVER, WITH ARBITRATION: (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require InMarket to pay a greater portion or all of such fees and costs in order for this subsection to be enforceable, then InMarket will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SUBSECTION (A)) WITHIN ONE YEAR AFTER THE EVENTS GIVING RISE TO THE DISPUTE — OR IT WILL BE FOREVER BARRED.
Injunctive Relief. The foregoing provisions of this subsection will not apply to any legal action taken by InMarket to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site/App, any Content, your Submissions and/or InMarket’s intellectual property rights, InMarket’s operations, and/or InMarket’s products or services.
Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring a qualifying claim of Disputes (but not Excluded Disputes) in small claims court.
No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to subsection (B) holds that this restriction is unconscionable or unenforceable, then our agreement in subsection (B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to subsection (H).
Federal and State Courts in Los Angeles. Except to the extent that arbitration is required in subsection (B), and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Los Angeles County, California. Accordingly, you and InMarket consent to the exclusive personal jurisdiction and venue of such courts for such matters.
- SEVERABILITY OF AGREEMENT
If any provision of this Agreement is found by a court or other binding authority to be invalid, you agree that every attempt will be made to give effect to the parties’ intentions as reflected in that provision, and the remaining provisions contained in this Agreement will continue in full force and effect.
- APPLICABLE LAW
This Agreement and the resolution of any dispute related to this Agreement or the Site/App will be governed by and construed in accordance with the laws of the State of California and the United States of America without giving effect to any principles of conflicts of law.
- THIRD PARTY BENEFICIARY & INTELLECTUAL PROPERTY
If you are using the Site/App on the Apple Platform, you acknowledge and agree that Apple, and Apple’s subsidiaries and affiliates, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of the Agreement. If you are using the Site/App on the Apple Platform, you agree that if the Site/App or your possession and use of the Site/App infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
If you are using the Site/App on the Google Platform, you acknowledge and agree that Google, and Google’s subsidiaries and affiliates, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Google will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of the Agreement. If you are using the Site/App on the Google Platform, you agree that if the Site/App or your possession and use of the Site/App infringes on a third party’s intellectual property rights, you will not hold Google responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
- MODIFICATIONS TO THIS AGREEMENT
InMarket reserves the right to modify or add to this Agreement at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by making them available via the Site/App, and that your use of the Site/App after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review this Agreement before using the Site/App. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Site/App from that point forward.
- CONTACT INFORMATION
If you have any questions or concerns with this Agreement or the Site/App you may contact us by e-mail or registered mail at:
Name: InMarket Media, LLC
Mailing address: 1530 P B Ln #P5446, Wichita Falls, TX 76302-2612
E-mail address: legal@InMarket.com