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