Terms of Service
Terms of
Service Agreement
This Terms of
Service Agreement (this “Agreement”) constitutes a legally binding contract
between Lootcakes Inc., a Delaware corporation (“Lootcakes,” “we,” “us,”
“our”) and you with respect to your use of our services, APIs, websites, and/or
software (collectively the “Service”). It is important that you carefully read
and understand the terms and conditions of this Agreement. BY ACCESSING OR
USING THE SERVICE, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS
OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF
THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE. YOU MAY NOT ACCESS OR USE THE
SERVICE IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. If
you access or use the Service on behalf of a company, principal, or other
entity, you represent that you have authority to bind such entity and its
affiliates to this Agreement and that it is fully binding on them. In such
case, the term “you” will refer to such entity and its affiliates. If you do
not have authority, you may not access or use the Service. Be advised that this
Agreement contains disclaimers of warranties and limitations on liability that
may be applicable to you.
Notice Regarding Dispute Resolution: This
Agreement contains provisions that govern how claims you and Lootcakes have
against each other are resolved (see Section 12 (Limitation of Liability),
Section 13 (Release), Section 17 (Dispute Resolution), and Section 18 (Choice
of Law and Forum) below). It also contains an agreement to arbitrate, which
will, with limited exception, require you to submit claims you have against us
to binding and final arbitration, unless you opt-out of the agreement to
arbitrate in accordance with Section 17(D). Unless you opt-out: (A) you
will only be permitted to pursue claims against Lootcakes on an individual
basis, not as part of any class or representative action or proceeding and
(B) you will only be permitted to seek relief (including monetary,
injunctive, and declaratory relief) on an individual basis.
1. Changes to
this Agreement
We reserve
the right to, at any time, with or without cause:
·
change the
terms and conditions of this Agreement;
·
change the
Service, including eliminating or discontinuing any service or other feature of
the Service; or
·
deny or
terminate your use of and/or access to the Service.
Any changes
we make will be effective immediately upon our making such changes available on
the Service or otherwise providing notice thereof. You agree that your
continued use of the Service after such changes constitutes your acceptance of
such changes. Be sure to return to this page periodically to ensure familiarity
with the most current version of this Agreement.
2. Use of the
Service
Before using
the Service, you need to register with Lootcakes and create an account. We
reserve the right to decline to provide the Service to any person for any or no
reason. If and when you register with or provide information to Lootcakes, you
agree to (a) provide accurate, current, and complete information as
prompted (including your e-mail address) and (b) maintain and update your
information (including your e-mail address) to keep it accurate, current, and
complete. You agree to keep your account registration information up to date at
all times. You acknowledge that, if any information provided by you is
untrue, inaccurate, not current, or incomplete, we reserve the right to
terminate this Agreement and your use of the Service. By providing Lootcakes with
your e-mail address or other contact information, you consent to our use of
this information to send you Service-related notices and other administrative
notices, including any notices required by law.
You may
register for or log-in to a Lootcakes account via a third-party network, such
as Facebook or Google+. If you do so, you hereby authorize Lootcakes to
pre-populate the registration and other relevant information fields of your
Lootcakes account and/or to use such third-party network credentials to log you
into the Service. If you connect your Lootcakes account to a third-party
network, you agree to comply with the terms and conditions and policies
applicable to such network.
Operation of
the Service (including our ability to generate revenues and fund your rewards)
requires that Lootcakes detects and records your game-related purchases. We do
so by collecting the game-related purchase receipts sent to you via e-mail. In
order to efficiently collect these e-mailed receipts, to verify their
authenticity, and to mitigate the risk of e-mail spoofing, fraud or other
violations of the Lootcakes terms of service (the “E-mail Linkage Purpose”), we
require that you link at least one e-mail account to Lootcakes using one of the
methods we provide. To perform the E-mail Linkage Purpose, Lootcakes will only
search for and collect from your linked e-mail account(s) e-mails sent by:
(a) the operators of the games, game-related platforms, and/or
game-related devices that you report to us that you use, and (b) the
provider of your linked e-mail account (together, your “Approved Senders”). By
creating an account or by accessing or using the Service you hereby authorize
Lootcakes to access your linked e-mail account(s) and any associated
applications developed by your linked e-mail account provider(s) that contain
settings affecting the accessibility of your linked e-mail account(s) (together
the ”Linked E-Mail Accounts”) to: (1) collect e-mails from your Approved
Senders; (2) perform the E-mail Linkage Purpose; and (3) adjust your
Linked E-mail Account(s) settings to: (a) enable IMAP (which stands for
Internet Message Access Protocol and is a technology that enables e-mail access
via third party applications); and (b) enable signing in to your Linked E-mail
Accounts (using your Linked E-Mail Accounts credentials) from any third party
application (such setting in Gmail/Google called allowing “less secure apps”
access). You consent to our use of your Linked E-mail Accounts credentials
(including your e-mail address and password) to perform the aforementioned
actions. For the avoidance of doubt, any adjustments made to your Linked E-mail
Accounts settings will never include changing your password or disabling
two-factor authentication (also known as “2-Step Verification”). You also hereby
acknowledge that collected e-mails may include financial information, credit
card information, and pre-paid gift card information. If Lootcakes collects
information from your Linked E-mail Accounts that is deemed unnecessary to
perform the E-mail Linkage Purpose, Lootcakes will delete such information as
soon as reasonably practicable.
You are
solely responsible for the activity that occurs on your Lootcakes account. You
must keep your account credentials (including username and password) secure at
all times. You may not share your account with any third parties without
Lootcakes’s prior written consent unless such third party has separately
entered an agreement with Lootcakes permitting it to access your account. You
must notify Lootcakes immediately of any breach or suspected breach of security
or unauthorized use of your account. Lootcakes will not be liable for any
losses caused by any unauthorized use of your account.
You represent
and warrant that you have the full right, power, and authority to enter into
and perform this Agreement without the consent or approval of any third party.
3. User Content
You are
solely responsible for your conduct and any data, text, files, information,
usernames, images, graphics, photos, profiles, audio and video clips, sounds,
musical works, works of authorship, applications, links, and other content or
materials (collectively, “Customer Data”) that you submit, post or display on
or via the Service.
You represent
and warrant that: (i) you own the Customer Data posted by you on or
through the Service or otherwise have the right to grant the rights and
licenses set forth in this Agreement; (ii) the posting and use of your
Customer Data on or through the Service does not violate, misappropriate or
infringe on the rights of any third party, including, without limitation,
privacy rights, publicity rights, copyrights, trademark and/or other
intellectual property rights; (iii) you agree to pay for all royalties,
fees, and any other monies owed by reason of Customer Data you post on or
through the Service; and (iv) you have the legal right and capacity to
enter into these Terms in your jurisdiction.
Although it
is Lootcakes’s intention for the Service to be available as much as possible,
there will be occasions when the Service may be interrupted, including, without
limitation, for scheduled maintenance or upgrades, for emergency repairs, or
due to failure of telecommunications links and/or equipment. Also, Lootcakes
reserves the right to remove any Customer Data from the Service for any reason,
without prior notice. Customer Data removed from the Service may continue to be
stored by Lootcakes, including, without limitation, in order to comply with
certain legal obligations, but may not be retrievable without a valid court
order. Lootcakes will not be liable to you for any modification, suspension, or
discontinuation of the Services, or the loss of any Customer Data. You also
acknowledge that the Internet may be subject to breaches of security and that
the submission of Customer Data or other information may not be secure.
You agree
that Lootcakes is not responsible for, and does not endorse, Customer Data
posted within the Service. Lootcakes does not have any obligation to prescreen,
monitor, edit, or remove any Customer Data. If your Customer Data violates this
Agreement, you may bear legal responsibility for that Customer Data.
Except as
otherwise described in the Service’s Privacy Policy, available at www.lootcakes.com/Legal/PrivacyPolicy,
as between you and Lootcakes, any Customer Data will be non-confidential and
non-proprietary and we will not be liable for any use or disclosure of Customer
Data. You acknowledge and agree that your relationship with Lootcakes is not a
confidential, fiduciary, or other type of special relationship, and that your
decision to submit any Customer Data does not place Lootcakes in a position
that is any different from the position held by members of the general public,
including with regard to your Customer Data. None of your Customer Data will be
subject to any obligation of confidence on the part of Lootcakes, and Lootcakes
will not be liable for any use or disclosure of any Customer Data you provide.
4. Reporting
Copyright and Other IP Violations
The Digital
Millennium Copyright Act (the “DMCA”) provides recourse for copyright owners who
believe that material appearing on the Internet infringes their rights under
U.S. copyright law. Lootcakes also reviews claims of trademark infringement. If
you believe in good faith that materials hosted by Lootcakes infringe your
copyright or trademark rights, you (or your agent) may send us a notice
requesting that the material be removed, or access to it blocked. The notice
must include 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 copyrighted
work or trademark claimed to have been infringed (or, if multiple copyrighted
works or trademarks located on the Service are covered by a single notification,
a representative list of such works); (c) identification of the material
that is claimed to be infringing or the subject of infringing activity, and
information reasonably sufficient to allow Lootcakes to locate the material on
the Service; (d) the name, address, telephone number, and e-mail address
(if available) of 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 or trademark 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. Please be advised that Lootcakes will not respond to
complaints that do not meet these requirements. If Lootcakes determines that
the materials alleged to infringe your copyright or trademark rights do not
require removal, Lootcakes will remove those materials only pursuant to a court
order declaring the content or use of the materials unlawful.
If you
believe in good faith that a notice of copyright infringement has been wrongly
filed against you, the DMCA permits you to send us a counter-notice.
Counter-notices must include the following information: (a) your name,
address, and telephone number; (b) the source of the content that was
removed; (c) a statement under penalty of perjury that you have a
good-faith belief that the content was removed in error; (d) a statement
that you consent to the jurisdiction of Federal District Court for the judicial
district in which your address is located; or, if your address is outside of
the United States, for any judicial district in which Lootcakes may be found,
and that you will accept service of process from the person who provided the
original complaint; and (e) a physical or electronic signature (for
example, typing your full name).
Notices and
counter-notices with respect to the Service must meet the then-current statutory
requirements imposed by the DMCA (see http://copyright.gov/title17/92appb.html)
and should be sent to the agent identified below. We suggest that you consult
your legal advisor before filing a notice or counter-notice. Also, be aware
that there can be penalties for false claims under the DMCA.
Agent to
Receive Notices of Claimed Infringement
Lootcakes Inc.
175 Varick Street
New York, NY 10014
legal@lootcakes.com
(646) 583-0905
5. Rules
Governing Your Use of the Service
You may not
use the Service, or assist or encourage any other party, to engage in any of
the following prohibited activities:
·
Copying,
framing, or mirroring any part of the Service;
·
Accessing
the Service for purposes of monitoring its availability, performance, or
functionality;
·
Permitting
any third party to access the Service,
·
Using,
copying, modifying, creating a derivative work of, reverse engineering,
decompiling, or otherwise attempting to extract the source code of the software
underlying the Service or any part thereof, unless expressly permitted or
required by law, and in any case, without providing prior written notice to
Lootcakes;
·
Publishing,
transmitting, distributing, or storing content, material, information, or data
that (a) is illegal, obscene, defamatory, libelous, threatening,
harassing, abusive, or hateful, or that advocates violence or threatens the
health of others; (b) is harmful to or interferes with the Service or any
third party’s networks, equipment, applications, services, or websites (e.g.,
viruses, worms, Trojan horses, etc.); (c) infringes, dilutes,
misappropriates, or otherwise violates any privacy, intellectual property,
publicity, or other personal rights including, without limitation, copyrights,
patents, trademarks, trade secrets, or other proprietary information (including
unauthorized use of domain names); or (d) is fraudulent or contains false,
deceptive, or misleading statements, claims, or representations (such as “phishing”).
·
Attempting
to disrupt, degrade, impair, or violate the integrity or security of the
Service or the computers, services, accounts, or networks of any other party
(including, without limitation, “hacking,” “denial of service” attacks, etc.),
including any activity that typically precedes attempts to breach security such
as scanning, probing, or other testing or vulnerability assessment activity, or
engaging in or permitting any network or hosting activity that results in the
blacklisting or other blockage of Lootcakes internet protocol space;
·
Avoiding
incurring charges or otherwise being required to pay for the Service;
·
Copying,
distributing, or disclosing any part of the Service in any medium, including,
without limitation, by any automated or non-automated “scraping”;
·
Using any
automated system, including, without limitation, “robots,” “spiders,” “offline
readers,” etc., to access the Service in a manner that sends more request
messages to Lootcakes than a human can reasonably produce in the same period of
time by using a conventional on-line web browser;
·
Taking any
action that imposes, or may impose, at our sole discretion, an unreasonable or
disproportionately large load on our infrastructure;
·
Collecting
or harvesting any personally identifiable information, including account names,
from the Service;
·
Using the
Service for any commercial solicitation purposes;
·
Impersonating
another person or otherwise misrepresenting your affiliation with a person or
entity, conducting fraud, hiding or attempting to hide your identity;
·
Accessing
any content on the Service through any technology or means other than those
provided or authorized by the Service;
·
Submitting
to the Service or to Lootcakes any personally identifiable information, except
as necessary for the establishment and operation of your account;
·
Submitting
to the Service or to Lootcakes any information that may be protected under
HIPPA (“HIPAA” means the Health Insurance Portability and Accountability Act,
as amended and supplemented) or any other information that may be protected
from disclosure by applicable law;
·
Bypassing
the measures we may use to prevent or restrict access to the Service,
including, without limitation, features that prevent or restrict use or copying
of any content or enforce limitations on use of the Service or the content
therein;
·
Violating
any applicable law, statute, ordinance, or regulation, or encourage any conduct
that could constitute a criminal offense or give rise to civil liability;
·
Transmitting
any trade secret or other material, non-public information about any person,
company, or entity without the authorization to do so;
·
Removing any
copyright, trademark, or other proprietary rights notices contained in or on
the Service;
·
Sublicensing,
selling, renting, leasing, transferring, assigning, or conveying any rights
under this Agreement to any third party, except as expressly permitted herein;
·
Executing
any form of network monitoring or running a network analyzer or packet sniffer
or other technology to intercept, decode, mine, or display any packets used to
communicate between the Service’s servers or any data not intended for you;
and/or
·
Harvesting
or collecting information about any Service visitors or members without their
express consent.
Improper use
of the Service may result in termination of your access to and use of the
Service, and/or civil or criminal liabilities. You agree to use the Service in
accordance with all applicable laws.
6. Intellectual
Property
A. Your
Rights. Subject to the terms and conditions of this Agreement (including
any restrictions on any applicable authorization or order form), you are hereby
granted a non-exclusive, non-transferable, non-sublicensable, and revocable
license to access and use the Service solely for your own personal use.
Lootcakes reserves all rights not expressly granted herein in the Service.
B. Lootcakes
Rights.
Customer Data. You expressly grant, and
you represent and warrant that you have all rights necessary to grant, to
Lootcakes, a royalty-free, fully paid-up, sublicensable (through multiple tiers
of sublicensees), transferable, perpetual, irrevocable, non-exclusive,
worldwide license to use, distribute, modify, reproduce, publically display,
publically perform, and create derivative works of Customer Data for the
purposes of (a) providing the Service, or (b) developing,
maintaining, supporting, or improving the Service. You agree that Lootcakes may
store Customer Data in order to provide the Service. Lootcakes aggregates
Customer Data with other data and also collects technical information and data
about your use of the Service. You expressly agree that Lootcakes may use any
aggregated and anonymized data for any business purpose during or after the
term of this Agreement, including, without limitation, to develop and improve
the Service or other Lootcakes services and products.
Feedback and Improvements. You may
choose to or we may invite you to submit comments, suggestions, feedback, or
ideas about the Service, including, without limitation, about how to improve the
Service or our products (“Ideas”). By submitting any Idea, you agree that your
disclosure is gratuitous, unsolicited, and without restriction and that we are
free to use the Idea without any additional compensation to you, and/or to
disclose the Idea on a non-confidential basis or otherwise to anyone. You
further acknowledge that, by acceptance of your submission, Lootcakes does not
waive any rights to use similar or related ideas previously known to Lootcakes,
or developed by its employees, or obtained from sources other than you.
C. Proprietary
Rights. The Service is owned and operated by Lootcakes and its
licensors, and the Service (and any intellectual property and other rights
relating thereto) is and will remain the property of Lootcakes and its licensors
and suppliers. The Service is protected by U.S. and international copyright,
trademark, and other laws, and you acknowledge that these rights are valid and
enforceable. Except as set forth in this Agreement, you may not copy,
reproduce, modify, adapt, translate, republish, upload, post, transmit,
distribute, sub-license, sell, reverse engineer, decompile, or disassemble any
part of the Service without our prior written permission. The Service may be
used solely (a) to the extent permitted in this Agreement or (b) as
expressly authorized in writing by authorized representatives of Lootcakes or,
if so indicated in writing by Lootcakes, its licensors or suppliers. Use of the
Service for any other purpose is strictly prohibited. You acknowledge that you do
not acquire any ownership rights by using the Service. The trademarks, logos,
and service marks displayed on the Service (collectively, the “Lootcakes
Trademarks”) are the registered and unregistered trademarks of Lootcakes,
Lootcakes’s licensors and suppliers, and/or others. Nothing contained in this
Agreement or the Service should be construed as granting, by implication,
estoppel, or otherwise, any license or right to use any Lootcakes Trademark(s)
without the express written permission of Lootcakes, Lootcakes’s licensors or
suppliers, or the third-party owner of any such Lootcakes Trademark. Subject to
the rights granted to Lootcakes in this Agreement, as between you and
Lootcakes, you retain all right, title, and interest in and to your Customer Data.
7. Points and
Rewards
A. Basic
Terms. The Service may offer virtual currency or points that can be earned
by performing certain actions and tasks in association with the Service (the
“Points”). Points may be redeemed for certain items, such as digital gift cards
or codes, as specified by the Service from time to time (the “Rewards”).
Rewards may be changed by Lootcakes or a third party designated by Lootcakes
from time to time at Lootcakes’s sole discretion, without warning. Lootcakes
has the right to, and may, change at any given time the amount of Points
assigned to an action, task or Reward, how Points or Rewards are redeemed or
acquired, as well as limit the number of Points you can accumulate or maintain
in your account. Points do not have any monetary value and cannot be
transferred to other users or redeemed for money. You agree that you will be
solely responsible for paying any applicable taxes, if any, related to the
redemption of Points and/or acquisition of Rewards. You are solely responsible
for complying with the terms of any third party when acquiring Rewards and
verifying that the correct Rewards have been issued to you each time you
acquire Rewards through the Service. Points or Rewards may expire, so you must
redeem, activate or collect them (as the case may be) within the time specified
in your account, as posted on the Service, as communicated by a third party,
and/or as indicated on the Reward or its accompanying materials.
B. Redemption
Terms. Your redemption of Points does not ensure that you will receive your
designated Reward. Quantities are limited and subject to certain third parties
making such Rewards available. After you redeem your Points, Lootcakes reserves
the right to provide you alternative Rewards at Lootcakes’s sole discretion.
Lootcakes may change which Rewards are available through the Service at
Lootcakes’s sole discretion and at any time. Your acquisition of Rewards by
redeeming Points through the Service is subject to the terms and conditions of
any third party providing or issuing the Rewards, and you agree to abide by any
such third party’s terms and conditions in the acquisition, activation, use,
and disposition of such Rewards. Lootcakes is not required in any way to honor
non-earned points or actions due to outages of the Service. Any attempts to
harm, cheat or game the Service can result in account closure and permanent ban
from Lootcakes.
C. Rewards
Cannot be Resold. You may not sell or offer to sell any Rewards acquired
through the Service.
D. Account
Suspension. Lootcakes reserves the right to reduce, liquidate, deactivate,
suspend or terminate your account, Points and/or Rewards or access thereto if
Lootcakes suspects, after investigation, that you have used any aspect of the
Service to conduct any fraudulent or illegal activity, acquired the Points or
Rewards through unscrupulous or illegal means, or purchased or sold Points or
Rewards through the Service or otherwise.
8. Third-Party
Links
The Service
may contain links to other websites for your convenience. We do not control the
linked websites or the content provided through such websites, and we have not
reviewed, in their entirety, such websites. Your use of linked websites is
subject to the privacy practices and terms of use established by the specific
linked website, and we disclaim all liability for such use. The fact that we
offer such links does not indicate any approval or endorsement by us of any
linked website or any material contained on any linked website, and we disclaim
any such approval or endorsement.
9. No Use by
Children Under 13
You hereby
affirm that you are over the age of thirteen (13), as the Service is not
intended for children under 13. If you are under 13 years of age, then you may
not use the Service. You further affirm that you are fully able and competent
to enter into the terms, conditions, obligations, affirmations,
representations, and warranties set forth in this Agreement, and to abide by
and comply with this Agreement.
10. Term & Termination
This
Agreement is effective from the date on which you first access the Service or
submit any Customer Data to Lootcakes, whichever is earlier, and shall remain
effective until terminated in accordance with its terms. Lootcakes may
immediately terminate this Agreement, and/or your access to and use of the
Service, or any portion thereof, at any time and for any reason, with or
without cause, without prior notice. Lootcakes may also terminate this
Agreement immediately if you fail to comply with any term or provision of this
Agreement. Upon termination of this Agreement by either party, your right to
use the Service shall immediately cease. Upon termination or expiration of this
Agreement for any reason, Sections 1, 2, 3, 5, 6(B), 6(C), and 7–20 shall
survive.
We reserve
the right at any time and from time to time to modify or discontinue,
temporarily or permanently, the Service, or any part or portion thereof, with
or without notice to you. You agree that we shall not be liable to you or to
any third party for any modification, suspension, or discontinuance of the
Service, or any part or portion thereof. Nothing in this Agreement shall be
construed to obligate Lootcakes to maintain and support the Service, or any
part or portion thereof, during the term of this Agreement. You acknowledge and
agree that upon termination or expiration of this Agreement for any reason or
upon your deletion of your account, your accrued Points will automatically
expire and will not be redeemable by you at any time.
11. Disclaimers
THE SERVICE
IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND,
EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY,
COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES
THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF
TRADE, AND ANY WARRANTIES THAT THE SERVICE IS CURRENT AND/OR UP-TO-DATE ARE
HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE
LAW.
THERE IS NO
WARRANTY, REPRESENTATION, OR GUARANTEE THAT THE SERVICE, OR YOUR USE OF THE
SERVICE, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE,
ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE
SERVICE, OR ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM THE
SERVICE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT,
GUARANTEE, ENDORSE, OR MAKE ANY REPRESENTATION REGARDING CUSTOMER DATA OR THE
USE OF, OR THE RESULTS OF THE USE OF, THE SERVICE, AND YOU ASSUME ALL
RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICE AND YOUR RELIANCE THEREON.
THE LOOTCAKES
PARTIES (DEFINED BELOW) DO NOT ENDORSE CUSTOMER DATA AND SPECIFICALLY DISCLAIM
ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE
(WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM,
LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM
ANY CUSTOMER DATA.
YOU
ACKNOWLEDGE AND AGREE THAT: (A) YOU HAVE NO CLAIM, RIGHT, TITLE, OR PROPRIETARY
OR OWNERSHIP INTEREST IN ANY POINTS REGARDLESS OF ANY CONSIDERATION PROVIDED IN
EXCHANGE FOR THOSE POINTS; AND (B) LOOTCAKES SHALL NOT BE LIABLE IN ANY MANNER
FOR THE DESTRUCTION, DELETION, MODIFICATION, IMPAIRMENT, HACKING OF OR ANY
OTHER DAMAGE OR LOSS OF ANY KIND CAUSED TO ANY POINTS, INCLUDING, BUT NOT
LIMITED TO, DELETION OF POINTS UPON THE TERMINATION OR EXPIRATION OF YOUR
ACCOUNT OR CHANGES TO THE SERVICE.
12. Limitation of Liability
NOTWITHSTANDING
THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER
LOOTCAKES NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS,
NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER
REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES
(INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF
DATA) OR LIABILITIES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER
THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SERVICE, CUSTOMER DATA,
AND/OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE
POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. LOOTCAKES’S MAXIMUM AGGREGATE
LIABILITY SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). NEITHER LOOTCAKES NOR
ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR
THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES
WILL HAVE ANY LIABILITY TO YOU FOR ANY DAMAGES, EXPENSES, OR OTHER LIABILITY
INCURRED BY YOU AS A RESULT OF ANY INACCURACY, INCOMPLETENESS, OR
MISREPRESENTATION OF ANY INFORMATION, CONTENT, POSTINGS, OR SUBMISSIONS
PROVIDED OR POSTED ON THE SERVICE BY THIRD PARTIES.
YOU AGREE
THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF
LOOTCAKES’S 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 ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED
OR CONTROLLED BY THE LOOTCAKES PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN
OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION
OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT
OWNED OR CONTROLLED BY THE LOOTCAKES PARTIES.
LOOTCAKES IS
NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD
PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS
FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
SOME STATES
DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR
LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO
YOU.
13. Release
IF YOU HAVE A
DISPUTE WITH ONE OR MORE OTHER USERS OF THE SERVICE, YOU AGREE TO RELEASE THE
LOOTCAKES PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, AND/OR DAMAGES (ACTUAL AND
CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR
IN ANY WAY CONNECTED WITH SUCH DISPUTE. IN ENTERING INTO THIS RELEASE, 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.”
14. Indemnification
You (and also
any third party for whom you operate an account on the Service) agree to fully
indemnify, defend (at Lootcakes’s request), and hold Lootcakes, our licensors,
suppliers, agents, successors, and assigns, and our and their directors,
officers, employees, consultants, and other representatives (the “Lootcakes
Parties”) harmless from and against any and all claims, liabilities, damages,
losses, costs (including reasonable attorneys’ fees), and other expenses that
arise directly or indirectly out of or from: (a) your breach of this
Agreement, including, without limitation, any of your representations and
warranties hereunder; (b) any allegation that any Customer Data or other
materials you submit to us or transmit to the Service infringe, misappropriate,
or otherwise violate the copyright, patent, trademark, trade secret, or other
intellectual property or other rights of any third party; (c) your Customer
Data or your activities in connection with the Service or other websites to
which the Service is linked; (d) your negligence or willful misconduct;
(e) your use of the results, content, data, or information provided via
the Service; (f) any service or product offered by you in connection with
or related to your use of the Service; and/or (g) your violation of any
laws, rules, regulations, codes, statutes, ordinances, or orders of any
governmental and quasi-governmental authorities, including, without limitation,
all regulatory, administrative and legislative authorities. You will cooperate
as fully required by Lootcakes in the defense of any claim. Lootcakes reserves
the right to assume the exclusive defense and control of any matter subject to
indemnification by you, and you will not in any event settle any claim without
the prior written consent of Lootcakes.
15. Jurisdictional Issues
Lootcakes
makes no representation that the Service operates (or is legally permitted to
operate) in all geographic areas, or that the Service is appropriate or
available for use in other locations. Accessing the Service from territories
where the Service or any content or functionality of the Service or portion
thereof is illegal is expressly prohibited. If you choose to access the
Service, you agree and acknowledge that you do so on your own initiative and at
your own risk, and that you are solely responsible for compliance with all
applicable laws. The Service is operated from the United States. If you are located
outside of the United States and choose to use the Service or provide your
Customer Data to us, your Customer Data will be transferred, processed, and
stored in the United States. U.S. privacy laws may not be as protective as
those in your jurisdiction. Your agreement to the terms of this Agreement
followed by your submission of your Customer Data in connection with the
Service represents your agreement to this practice. If you do not want your
Customer Data transferred to, processed, or stored in the United States, you
should not use the Service. Use of the Service by users outside of the United
States is at your own risk.
16. Notice for California Users
Under
California Civil Code Section 1789.3, California Service users are entitled to
the following specific consumer rights notice: The Complaint Assistance Unit of
the Division of Consumer Services of the California Department of Consumer
Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112,
Sacramento, California 95834, or by telephone at (800) 952-5210.
17. Dispute Resolution
A. Arbitration.
The parties shall use their best efforts to settle any dispute, claim,
question, or disagreement directly through good-faith negotiations, which shall
be a precondition to either party initiating a lawsuit or arbitration. Except
for disputes relating to Lootcakes’s intellectual property (such as trademarks,
trade dress, domain names, trade secrets, copyrights, and patents) or if you
opt out of this agreement to arbitrate, all claims arising out of or relating
to this Agreement and your use of the Service shall be finally settled by
binding arbitration administered by the American Arbitration Association
(“AAA”) in accordance with the provisions of its Commercial Arbitration Rules
and of its supplementary procedures for consumer-related disputes, excluding
any rules or procedures governing or permitting class actions. The arbitrator,
and not any court or agency, shall have exclusive authority to resolve all
disputes arising out of or relating to this Agreement, including, but not
limited to, any claim that all or any part of this Agreement is void or
voidable. The arbitrator shall be empowered to grant whatever relief would be
available in a court; provided, however, that the arbitrator will not
have authority to award damages, remedies, or awards that conflict with this
Agreement. The arbitrator’s award shall be binding on the parties and may be
entered as a judgment in any court of competent jurisdiction. To the extent the
filing fee for the arbitration exceeds the cost of filing a lawsuit, Lootcakes
will pay the additional cost. You and Lootcakes hereby expressly waive trial by
jury. You also agree not to participate in claims brought in a private attorney
general or representative capacity, or consolidated claims involving another
person’s account, if Lootcakes is a party to the proceeding. This dispute
resolution provision will be governed by the Federal Arbitration Act.
The parties
understand that, absent this mandatory provision, they would have the right to
sue in court and have a jury trial. They further understand that, in some
instances, the costs of arbitration could exceed the costs of litigation and
that the right to discovery may be more limited in arbitration than in court.
B. Class-Action
Waiver. The parties further agree that any arbitration shall be conducted
in their individual capacities only, and not as a class action or other
representative action. If any court or arbitrator determines that the
class-action waiver set forth in this section is void or unenforceable for any
reason, or that an arbitration can proceed on a class basis, then the
arbitration provision set forth above shall be deemed null and void in its
entirety and the parties shall be deemed to have not agreed to arbitrate
disputes.
C. Exception—Litigation
of Small-Claims-Court Claims. Notwithstanding the parties’ decision to
resolve all disputes through arbitration, either party may also seek relief in
a small claims court for disputes or claims within the scope of that court’s
jurisdiction.
D. Thirty-Day
Right to Opt Out. You have the right to opt out and not be bound by the
arbitration- and class-action-waiver provisions set forth in this section by
sending written notice of your decision to opt out to the following address:
Lootcakes Inc., 175 Varick Street, New York, NY 10014. The notice must be
sent within 30 days of registering to use the Service; otherwise, you shall be
bound to arbitrate disputes in accordance with this Agreement. If you opt out
of these arbitration provisions, Lootcakes also will not be bound by them. In
addition, if you elect to opt out of these arbitration provisions, Lootcakes
may terminate your use of the Service.
E. Time
Limitation on Claims. You agree that any claim you may have arising out of
or related to your relationship with Lootcakes and this Agreement must be filed
within one year after such claim arose; otherwise, your claim is permanently
barred.
18. Choice of Law and Forum
This
Agreement and your relationship with the Lootcakes Parties shall be governed
by, and construed and interpreted in accordance with, the laws of the State of
New York without regard to its conflict of laws principles AND WILL
SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR
THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to Section
17, the parties irrevocably consent to bring any action to enforce this
Agreement in the federal or state courts located in New York, New York. You
consent to the exclusive jurisdiction of the federal or state courts located in
New York, New York.
19. U.S. Government Restricted
Rights
The Service
shall be deemed “commercial computer software” pursuant to DFAR Section
227.7202 and FAR Section 12.212, as applicable. Any use, modification,
reproduction, release, performance, display, or disclosure of the Service by
the U.S. Government will be governed solely by the terms of this Agreement and
will be prohibited except to the extent expressly permitted by the terms of
this Agreement.
20. Miscellaneous
If any
provision of this Agreement is found to be unlawful, void, or for any reason
unenforceable, then that provision shall be deemed severable from this
Agreement and shall not affect the validity and enforceability of any remaining
provisions. This is the entire Agreement between you and us relating to the
subject matter herein and supersedes any and all prior or contemporaneous
written or oral agreements between you and us with respect to such subject
matter. This Agreement may not be changed, waived, or modified except by
Lootcakes as provided herein or otherwise by written instrument signed by
Lootcakes. Employees of Lootcakes are not authorized to modify the terms of
this Agreement, either orally or in writing. If any employee of Lootcakes
offers to modify this Agreement, he or she is not acting as an agent for
Lootcakes or speaking on Lootcakes’s behalf. You may not rely, and should not
act in reliance on, any statement or communication from an employee of
Lootcakes or anyone else purporting to act on Lootcakes’s behalf. This
Agreement is between you and Lootcakes; there are no third-party beneficiaries.
You are responsible for compliance with all applicable laws and regulations,
including, but not limited to, United States export and import regulations. You
may not use the Service if you are a resident of a country embargoed by the
United States, or are a foreign person or entity blocked or denied by the
United States government. No agency, partnership, joint venture,
employee-employer, or franchiser-franchisee relationship is intended or created
by this Agreement. Neither this Agreement nor any right, obligation, or remedy
hereunder is assignable, transferable, delegable, or sublicensable by you
except with Lootcakes’s prior written consent, and any attempted assignment,
transfer, delegation, or sublicense shall be null and void. Lootcakes may
assign, transfer, or delegate this Agreement or any right or obligation or
remedy hereunder in its sole discretion. No waiver by either party of any
breach or default hereunder shall be deemed to be a waiver of any preceding or
subsequent breach or default. Except as explicitly stated otherwise, legal
notices shall be served on Lootcakes at legal@lootcakes.com (in the case
of Lootcakes) or to the e-mail address you have designated on your account (in
your case). Notice to you shall be deemed given 24 hours after the e‑mail is
sent. Any heading, caption, or section title contained in this Agreement is
inserted only as a matter of convenience, and in no way defines or explains any
section or provision hereof.
The Service is
Operated By
Lootcakes Inc.
Effective September 4, 2019
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