SWIZL
Inmar

SWIZL™ Terms of Use

Last Updated September 25, 2018

Welcome, and thank you for your interest in SWIZL, which is offered through Inmar Services, LLC (“Inmar,” “SWIZL,” or, as applicable, “we,” “us” or “our”).  These Terms of Use (“Terms”) are a legally binding contract between you and Inmar regarding your use of all SWIZL-branded websites (our “Sites”), SWIZL-branded mobile applications (each, an “App” or “Application”), SWIZL-branded social media pages (our “Social Media Pages”), SWIZL direct communications via mobile text (SMS/MMS), and the features and services that we offer through those Sites, Applications, Social Media Pages, and Direct Communications (collectively referred to as the “Service” or “Service Channels”).

PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY EXPRESSING THAT YOU “ACCEPT,” BY REGISTERING FOR AN ACCOUNT, OR BY ACCESSING, BROWSING, OR OTHERWISE USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS

If you do not agree to all of the Terms, or if you are not eligible for the Service (as explained below), then please do not use the Service.

ARBITRATION NOTICE. UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THE TERMS BY FOLLOWING THE OPT-OUT PROCEDURES SPECIFIED IN SECTION 22 BELOW, AND EXCEPT FOR CERTAIN KINDS OF DISPUTES DESCRIBED IN SECTION 22, YOU AGREE THAT DISPUTES ARISING UNDER THESE TERMS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND, BY ACCEPTING THESE TERMS, YOU AND INMAR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THESE TERMS (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. (SEE SECTION 22.)

  1. Eligibility.  By agreeing to the Terms, you represent and warrant to us: (i) that you are at least twenty one (21) years old; (ii) that you have not previously been suspended, removed or deactivated from the Service; (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations; and (iv) that neither you nor anyone in your immediate family (parent, sibling, child or spouse) holds an interest in an alcoholic beverage license by any state or federal alcoholic beverage regulatory agency.
  2. Privacy Policy and Supplemental Terms.
    1. Privacy Policy. The Inmar Privacy Policy is an integral part of these Terms.  By agreeing to these Terms, you acknowledge and agree to Inmar’s practices regarding collection, use, processing and disclosure of your personal information, as described in the Inmar Privacy Policy.  Please read the Inmar Privacy Policy carefully.
    2. Supplemental Terms. We may offer certain features of the Service that are subject to different or additional terms and conditions that supplement these Terms.  We refer to such different or additional terms as “Supplemental Terms.”   Your use of the Service is subject to any such Supplemental Terms, when applicable, and such Supplemental Terms are considered an integral part of these Terms.  In the event of a conflict between any Supplemental Terms and the remainder of these Terms, the Supplemental Terms will govern, but only with respect to the features of the Service to which the Supplemental Terms apply.
  3. Modification of the Terms. We reserve the right, at our discretion, to change the Terms on a going forward basis at any time. Please check the Terms periodically for changes. Your continued use of the Service after the changes become effective constitutes your binding acceptance of such changes. Modifications are effective upon publication.
  4. Accounts and Registration. Certain Service Channels require you to register for an account (“SWIZL Account”) to access most features of the Service.  When you register for a SWIZL Account, you may be required to provide us with some information about yourself (such as your e-mail address or other contact information). You represent to us that the information you provide to us is and will be accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your SWIZL Account and password. You agree to accept responsibility for all activities that occur under your SWIZL Account. If you have reason to believe that your SWIZL Account is no longer secure for any reason (for example, in the event of a loss, theft or unauthorized disclosure or use of your password), then you agree to notify us immediately by email to swizlsupport@inmar.com.
  5. Location Data. Some features of the Service enable us to tailor your experience on the Service based on your location. If you decline to provide location information, or in our judgment, we cannot verify your location, you will be unable to utilize some or all features of the Service.
  6. User Rewards.
    1. User Rewards (“Rewards”) Generally. Through the Service, Inmar makes available offers on certain third-party products and services (each an “Offer”). When you successfully redeem an Offer through the Service, you will receive Rewards. Each Offer may be subject to Supplemental Terms and may be discontinued by Inmar at any time. At any time and in Inmar’s sole discretion, Inmar may: (i) determine whether or not you are eligible to redeem an Offer; (ii) determine whether or not you have earned Rewards; or (iii) adjust your Rewards total. Prior to distribution, Rewards have no monetary value and you may not obtain any cash, money, or anything of value in exchange for your Rewards total except as made available by Inmar.  Inmar may, at its sole discretion, limit the amount of Rewards that you can distribute in any given period of time.
    2. Required Minimum Rewards.  For some Service Channels, Inmar may impose a Required Minimum Rewards amount that must accrue in your SWIZL Account before you may elect to have Inmar distribute your Rewards. For other Service Channels, Inmar may allow immediate distribution of Rewards without a Required Minimum Rewards amount.  Any Required Minimum Rewards amounts will be displayed within the SWIZL Service Channel and are subject to change.  If you elect to close your SWIZL Account and you have undistributed Rewards that meet or exceed any Required Minimum Rewards threshold, you will be expected to distribute such Rewards prior to closing your SWIZL Account, even if this means you must distribute your Rewards in the payout option with the lowest minimum distribution amount. If your SWIZL Account is terminated by Inmar, if you fail to properly distribute your Rewards when closing your SWIZL Account, or if at the time of closing you have less than the minimum Rewards threshold in your SWIZL Account, any rights you have to the Rewards in your SWIZL Account will terminate and you will no longer be eligible to receive a distribution of such Rewards.
    3. Reward Distribution Options. In some cases, you may be able to elect to have Inmar distribute your Rewards via one or more distribution options made available through the Service (“Reward Distribution Options”).  The available Reward Distribution Options are subject to change without notice to you, and you have no vested right to any particular form or method of distribution.
    4. Third-Party Reward Distribution Services.  Inmar may engage Third-Party Reward Distribution Service providers to provide certain Reward Distribution Options made available through the Service.  Such Third-Party Reward Distribution Services are subject to additional terms and conditions, and you agree to be bound by any applicable terms and conditions as the same may be modified from time to time.  For example, Inmar may use third party providers of gift card Reward Distribution Options (electronic or physical) and/or certain Payment Providers, such as PayPal, Inc.  When you elect to distribute Rewards through a Third-Party Reward Distribution Service, you are instructing Inmar to distribute the Rewards to the Third-Party Reward Distribution Service on your behalf and you agree that you are bound by the Third-Party Reward Distribution Service’s terms of service.  It is your responsibility to access and review the terms of service of any Third-Party Reward Distribution Service.
    5. Taxes. Depending on applicable federal, state, and local tax laws, your distribution of Rewards may be subject to taxes. You will be solely responsible for any and all tax liability arising out of your receipt of Rewards and you agree to provide Inmar with information requested in connection with applicable federal, state, and local tax laws. You are solely responsible for any tax liability (including fees, penalties or fines) incurred by Inmar as a result of your action or inaction in connection with the foregoing (including your failure to provide Inmar with information). Inmar is further authorized to offset such tax liability from your Rewards.
    6. Inactivity Fee. If a Service Channel requires you to maintain a SWIZL Account, it is your responsibility to keep your SWIZL Account active. If you fail to redeem an Offer within your SWIZL Account for twelve (12) consecutive months, your SWIZL Account will be considered “inactive.” While your SWIZL Account is inactive and, to the extent permitted under the laws of your state, Inmar may deduct an amount from your accumulated Rewards every month prior to reactivation (“Inactivity Fee”); this amount is subject to change. Should Inmar charge an Inactivity Fee, Inmar will attempt to notify you that your SWIZL Account is approaching inactive status and provide information about the Inactivity Fee including the current fee amount before your SWIZL Account becomes inactive by sending you an email to the address we have on file for you. Subject to Inmar’s right to terminate your SWIZL Account under these Terms, you may reactivate your SWIZL Account by logging in to your SWIZL Account and redeeming at least one Offer.
  7. User Content.
    1. User Content Generally. Certain features of the Service may permit users and third parties to post content (“User Content”), including links to other Web sites or resources, messages, reviews, photos, images, folders, data, text, and other types of works.
    2. Limited License Grant to Inmar. By posting User Content, you grant Inmar and its affiliates a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, perpetual, irrevocable right and license to use, reproduce, publicly display or perform, modify, edit, adapt, sublicense, publish, translate, creative derivative works based upon (in whole or in part), transmit, digitally transmit and otherwise exploit your User Content, in whole or in part, without attribution, in any media formats and through any media channels (now known or hereafter developed). You also permit any other user to access, view, store, reproduce, or in any other way use as necessary for the use of the Service, the material for that user’s personal use through the functionality of the Service and under the Terms.  Except as otherwise expressed in these Terms, you retain any copyright or other proprietary rights you hold in the User Content that you post to the Service.
    3. User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting and publishing User Content, you affirm, represent, and warrant that:
      • You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize Inmar and users of the Service to exercise the licenses granted by you in this Section 7 and in the manner contemplated by Inmar and the Terms;
      • Your User Content, and the use thereof as contemplated herein, does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (c) contain any viruses, adware, spyware, worms, or other malicious code; or (d) violate any applicable law or regulation.
    4. User Content Disclaimer. We are under no obligation to edit or control User Content and will not be in any way responsible or liable for User Content. You understand that when using the Service, you may be exposed to content from a variety of sources and acknowledge that the content may be inaccurate, offensive, indecent or objectionable. Inmar has no editorial control over User Content, and any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including content providers, or any other users are those of the respective author(s) or distributor(s) and not of Inmar.  You therefore use the Service and the content at your own risk and agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Inmar with respect thereto. We expressly disclaim any and all liability in connection with User Content. If we are notified that User Content does not conform to the Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Inmar does not permit copyright infringing activities on the Service.
  8. Monitoring Content. Inmar does not control and does not have any obligations to monitor: (a) User Content or (b) the use of the Service by its users. Notwithstanding the foregoing, you acknowledge and agree that Inmar reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes, and Inmar reserves the right to remove User Content for any reason or terminate your access and use of the Service. If at any time Inmar chooses to monitor User Content, Inmar still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.
  9. Electronic Communications.
    1. By using the Service, you consent to receiving certain electronic communications from us (e.g., by e-mail or SMS). You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. In accordance with this Section 9, we may also communicate with you via SMS.
    2. Some electronic communications are necessary for performance of the Service and you may not opt out of such communications (“Service Related Communications”).  You may, however, receive other electronic communications that are promotions, advertisements, or informational and not necessary for the performance of the Service (“Optional Communications”).  You may opt out of receiving Optional Communications by following the “unsubscribe” link in the e-mail communication or by texting “STOP” to SWIZL or 79495 in the case of SMS
    3. If at any time you forget what keywords are supported, text “HELP” to SWIZL or 79495. After you send the SMS message “HELP” to us, we will respond with instructions on how to use our service as well as how to unsubscribe.
    4. As always, message and data rates may apply for any messages sent to you from us and to us from you. Message frequency depends on the user’s interaction. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
  10. Digital Millennium Copyright Act.
    1. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material posted on the Service, you may contact our Designated Agent at the following address:

      Inmar Services, LLC
      635 Vine Street
      Winston-Salem, NC 27101
      c/o DMCA Agent
      Attn: General Counsel

      Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:

      1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
      2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
      3. a description of the material that you claim is infringing and where it is located on the Service;
      4. your address, telephone number, and email address;
      5. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
      6. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
  11. Third-party Services and Websites. Inmar may provide tools through the Service that enable you to export information to third-party services, including through use of an API or by linking your SWIZL Account with an account on a service offered by a third-party, such as Twitter, Facebook or qualified retailer loyalty program account. By using these tools, you agree that we may transfer such User Content and information to the applicable third-party service. Such third-party services are not under our control, and we are not responsible for the contents of the third-party service or the use of your User Content or information by the third-party service. The Service, including our websites, may also contain links to third-party websites. The linked sites are not under our control, and we are not responsible for the contents of any linked site. We provide these links as a convenience only, and a link does not imply our endorsement of, sponsorship of, or affiliation with the linked site. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third-party services or websites.
  12. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Inmar an unrestricted, perpetual, irrevocable, non-exclusive, fully paid, royalty free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
  13. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO (and such conduct, “Prohibited Conduct”):
    1. submit purchase information that is false, inaccurate, fabricated, counterfeited, tampered with, adjusted, or otherwise artificial or inauthentic for the purpose of seeking to redeem Offers;
    2. redeem, or attempt to redeem, Offers for products that have not actually been purchased and retained, or for products that have been purchased but returned to a store or online vendor, following purchase;
    3. upload receipts that have already been uploaded by you or another user, for the purpose of earning Rewards for purchasing products that you did not actually purchase;
    4. upload receipts that reflect purchases that took place more than one (1) week prior to the date on which the receipt is uploaded;
    5. upload receipts that reflect purchases that took place prior to the launch date of a retailer’s Offer or campaign except where expressly permitted in the Offer details;
    6. attempt to obscure the date on a receipt;
    7. extract information from SWIZL’s web or mobile applications for the purpose of using said information in conjunction with another service, web or mobile application;
    8. rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials (as defined below);
    9. post, upload, or distribute any defamatory, libelous, or inaccurate User Content or other content;
    10. post, upload, or distribute any User Content or other content that is unlawful or that a reasonable person could deem to be objectionable, profane, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
    11. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the SWIZL Accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Service, or perform any other similar fraudulent activity;
    12. infringe the copyright or other proprietary rights on the Service or of any User Content;
    13. make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the Service. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
    14. use the Service for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy, or the collection, storage, transmission, or access of educational records;
    15. defame, harass, abuse, threaten or defraud users of the Service, or collect, or attempt to collect, personal information about users or third parties without their consent;
    16. use the Service for any commercial purpose;
    17. remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service or User Content, features that prevent or restrict use or copying of any content accessible through the Service, or features that enforce limitations on the use of the Service or User Content;
    18. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service or any part thereof (including any App), except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
    19. modify, adapt, translate or create derivative works based upon the Service or any part thereof, except and only to the extent the foregoing restriction is expressly prohibited by applicable law; or
    20. intentionally interfere with or damage operation of the Service or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
    21. Redeem any Reward or participate in any Offer if you are (i) under the age of twenty-one (21); (ii) the holder of an alcoholic beverage license issued by any U.S. state alcohol regulatory agency; or (iii) an immediate family member (parent, sibling, child or spouse) of an alcoholic beverage licensee.
  14. Limitations on User Accounts. A user may not create more than one (1) SWIZL Account. Each SWIZL Account may be associated with a maximum of two (2) unique and active mobile devices. Each unique mobile device may not be associated with more than two (2) SWIZL Accounts.
  15. Term. These Terms are effective beginning when you accept the Terms or first download, install, access or use the Service and ending when terminated as described in Section 16.
  16. Termination; Discontinuation and Modification of the Service. Notwithstanding anything herein to the contrary, Inmar shall have the right, exercisable in its absolute and sole discretion, to terminate the Terms and block your access to the Service at any time and for any reason.  If you engage in Prohibited Conduct, post User Content that Inmar determines in its sole discretion to be a terminable offense, or otherwise violate any of the Terms, your permission to use the Service will automatically terminate, any rights you have to the Rewards in your SWIZL Account will terminate, and you will no longer be eligible to receive a distribution of such Rewards. We also reserve the right to modify the Service at any time without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or revocation of your access to or use of the Service. You may terminate the Terms at any time by discontinuing the use of the Service.
  17. Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease use of the Service; (b) you will no longer be authorized to access your SWIZL Account or the Service; and (c) Sections 7.2, 12, 16, and 17-26 and any other Sections which, by its nature or express terms should survive will survive.
  18. Ownership; Proprietary Rights; User License. The Service, including the Materials as defined below, are the exclusive property of Inmar or are used with the express permission of the copyright and/or trademark owner. Subject to the Terms, Inmar hereby grants you a limited, revocable, non-exclusive, non-transferable license to install, access and use the Service, including the Materials as defined below, solely for your personal use in compliance with the Terms and as intended through the normal functionality of the Service. Except for the limited license to use the Service set forth in the preceding sentences, when you use the Service you are not receiving a license or any other rights, including but not limited to any intellectual property or other proprietary rights of Inmar or any of our users. YOU UNDERSTAND THAT YOU HAVE NO RIGHTS TO THE SERVICE OR ANY INMAR PROPERTY EXCEPT AS WE INDICATE IN THE TERMS. We reserve all rights not expressly granted in the Terms, in and to the Service and Materials. The visual interfaces, graphics, design, compilation, information, content, text, photos, video, sounds, computer code (including source code or object code), products, software, services, mobile  and web based applications, and all other elements of the Service provided by Inmar (the “Materials”) are protected by state or United States federal intellectual property and proprietary rights, including but not limited to trade secret, copyright, trade dress, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any User Content that is provided and owned by users of the Service, all Materials contained in the Service are the property of Inmar or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Inmar or its affiliates and/or third-party licensors. Except as expressly authorized by Inmar, you agree not to sell, license, distribute, copy, post, link, deep link, modify, publicly perform or display, transmit, publish, edit, adapt, decompile, disassemble, reverse engineer, create derivative works from, or otherwise make unauthorized use of the Materials without express written permission of Inmar.  You further agree to use no less than a reasonable standard of care to prevent unauthorized access to or disclosure of the Service and Materials described above.  Any violation hereof may result in a copyright, trademark or other intellectual property right infringement that may subject you to civil and/or criminal liabilities.
  19. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you agree to defend, indemnify and hold harmless Inmar and its officers, directors, employees, consultants, contractors, affiliates, third-party content providers, licensors, and agents (collectively, the “Inmar Entities”) from and against any and all claims, liabilities, damages, losses, costs and expenses of any kind, including reasonable attorneys’ and accounting fees and costs, arising out of or in any way related to (i) your access to, use of or alleged use of the Service; (ii) your use of products or services provided by third-parties, such as Merchants or Brand Companies; (iii) your violation of the Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iv) any fraud or manipulation by you; (v) your violation of any applicable law or the rights of any third-party, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (vi) any disputes or issues between you and any third-party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.  This defense and indemnification obligation will survive the termination of the Agreement and your use of the Service.

    Inmar is not responsible for products and services offered by third parties and is not responsible for any costs, harm, or damages that occur as a result of, either directly or indirectly, third-party products and services.  You release the Inmar Entities from any claim or liability arising out of or related to (i) any third-party product or service and (ii) any acts or omissions by users, including users’ failure to comply with applicable law and/or a third-party’s failure to provide a product or service as described in good faith by Inmar (collectively, (i) and (ii) are referred to as the “Released Products Claims”). You also agree to defend, indemnify and hold harmless each of the Inmar Entities from and against all claims and liability, including attorneys’ fees, arising out of or related to the Released Products Claims.

  20. Disclaimers; No Warranties. YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE INMAR ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, QUIET ENJOYMENT OR NON-INFRINGEMENT; (ii) ANY WARRANTIES ARISING OUT OF COURSE-OF-DEALING, COURSE-OF-PERFORMANCE, OR TRADE USAGE; (iii) ANY WARRANTIES THAT THE INFORMATION, SERVICE, OR RESULTS PROVIDED IN, OR THAT MAY BE OBTAINED FROM USE OF, THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE ACCURATE, RELIABLE, COMPLETE, OR UP-TO-DATE; (iv) ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE; (v) ANY WARRANTIES OF TITLE AND (iv) ANY WARRANTIES WHATSOEVER REGARDING ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ADVERTISED, MADE AVAILABLE, OR REFERRED TO YOU THROUGH THE SERVICE. YOU ASSUME ALL RISK FOR ALL DAMAGES, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE OR LOSS OF DATA THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE. ANY CONTENT, MATERIALS, INFORMATION OR SOFTWARE DOWNLOADED, USED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK.
    THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. INMAR DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT INMAR IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
  21. Limitation of Liability. IN NO EVENT SHALL THE INMAR ENTITIES NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OPERATING OR DELIVERING THE SERVICE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH THE SERVICE AND/OR THESE TERMS, WITHOUT REGARD TO THE THEORY OF LIABILITY (WHETHER BASED ON WARRANTY, CONTRACT, OR TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR BASED ON STATUTE OR ANY OTHER LEGAL THEORY), WITHOUT REGARD TO WHETHER THE INMAR ENTITIES KNEW OR SHOULD HAVE KNOW THAT SUCH DAMAGES WERE POSSIBLE, AND WITHOUT REGARDING TO WHETHER SUCH DAMAGES RESULT FROM: (i) YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICE, OR (ii) ANY PURCHASE OF A THIRD-PARTY PRODUCT OR SERVICE BASED ON INFORMATION CONTAINED IN THE SWIZL SERVICE, INCLUDING THE AVAILABILITY OF A COUPON. YOU SPECIFICALLY ACKNOWLEDGE THAT THE INMAR ENTITIES ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, THE INMAR ENTITIES WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD-PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THROUGH THE SERVICE.

    THIRD-PARTY REWARD DISTRIBUTION SERVICES AND MERCHANTS AND BRAND COMPANIES WHO OFFER AND ADVERTISE PRODUCTS THROUGH THE SERVICE ARE NOT AFFILIATES, AGENTS, OR EMPLOYEES OF INMAR.  THE INMAR ENTITIES DISCLAIM LIABILITY FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY MERCHANTS OR BRAND COMPANIES OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM.

    IN ADDITION TO THE TERMS SET FORTH ABOVE, THE INMAR ENTITIES SHALL NOT BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR INAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN THE SERVICE CHANNELS OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO YOU, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING WITHOUT LIMITATION LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES.

    EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 21 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  22. Dispute Resolution and Arbitration.
    1. Generally. In the interest of resolving disputes between you and Inmar in the most expedient and cost-effective manner, you and Inmar agree that any and all disputes arising out of or relating to the Terms, or the breach, termination, enforcement, interpretation or validity thereof or the use of the Service (collectively, “Disputes”) shall be resolved by binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Our agreement to arbitrate disputes includes, but is not limited to, all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and Inmar are each waiving the right to a trial by jury or to participate in a class action.
    2. Exceptions. Notwithstanding subsection 22.1, we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Inmar with written notice of your desire to do so by regular mail at Inmar Services, LLC, 635 Vine Street, Winston Salem, NC 27101, Attn: General Counsel within thirty (30) days following the date you first agree to the Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Inmar with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Inmar with an Arbitration Opt-out Notice, will be the state courts located in Forsyth County in the State of North Carolina or the United States District Court for the Middle District of North Carolina and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Inmar with an Arbitration Opt-out Notice, you acknowledge and agree that you and Inmar are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Inmar otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of the Terms.
    3. Arbitrator. Any arbitration between you and Inmar will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Inmar.
    4. Notice; Process. A party who intends to seek arbitration must first send a written Demand for Arbitration to the other, by certified mail, Federal Express (signature required), or in the event that we do not have a physical address on file for you, we may send notice to you by electronic mail (“Notice”). Demands for Arbitration may be sent to Inmar Services, LLC, 635 Vine Street, Winston-Salem, NC 27101, Attn: General Counsel. The Demand must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. During the arbitration, the amount of any settlement offer made by you or Inmar shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
    5. Fees. In the event that you commence arbitration in accordance with these Terms, Inmar will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in North Carolina, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Inmar for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
    6. No class actions. YOU AND INMAR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Inmar agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
    7. Modifications. In the event that Inmar makes any future change to this arbitration provision (other than a change to the Inmar’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Inmar’s address for Notice, in which case your SWIZL Account shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
    8. Enforceability If only Subsection 22.6 is found to be unenforceable or the entirety of this Section 22 is found to be unenforceable, then the entirety of this Section 22 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Sections 22 and 23 shall govern any action arising out of or related to these Terms.
  23. Governing Law; Venue. These Terms, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of North Carolina as they apply to agreements entered into and to be performed entirely within North Carolina by North Carolina residents, and without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Inmar agree to submit to the personal and exclusive jurisdiction of the state courts of Forsyth County, North Carolina or the United States District Court for the Middle District of North Carolina for the purpose of litigating all such claims or disputes. The Service is intended for individual users located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
  24. General. The Terms, including any addendums, the Inmar Privacy Policy and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and Inmar regarding your use of and access to the Service, and except as expressly permitted above may only be amended by a written agreement signed by authorized representatives of the parties. The right to use the Service is personal to you and is not transferable to any other individual or entity.  You may not assign or transfer the Terms or your rights and obligations hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent.  Any assignment attempted to be made in violation of the Agreement shall be void. We may assign the Terms at any time without notice. The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of the Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of paragraph headers in the Terms is for convenience only and shall not have any impact on the interpretation of particular provisions.  Except as otherwise expressly provided herein, no agency, partnership, joint venture, or employment is created as a result of the Terms, and you do not have the authority of any kind to bind Inmar in any respect whatsoever.  In the event that any part of the Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.
  25. Contact Information. If you have any questions regarding Inmar, the Service, or the Terms please email swizlsupport@inmar.com. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
  26. No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.

 

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