TERMS OF SERVICE
TERMS OF SERVICE AGREEMENT
Last updated: July 10, 2018
TERMS OF SERVICE AGREEMENT
Effective Date: 07/10/18
IMPORTANT NOTICE TO USER: PLEASE READ THIS DOCUMENT CAREFULLY. This Terms of Service (“Agreement”) is a legal agreement between you (referred to herein as “you” or “your”) and PINCHme Group, Inc. (“PINCHme,” “we”, “our”, or “us”) for access to and use of our website with a homepage available at http://www.PINCHme.com (the “Site”) and other related software, interactive features, and/or services operated by us that post a link to this Agreement (collectively, the “Service”).
As part of the Service, you may be able to receive, at no charge, promotional samples of certain third party products or services that are provided by our third party brand partners solely for personal, non-commercial sampling and evaluation purposes. These third party products or services are not owned or controlled by us, and we are not responsible with respect to them or the actions of our third party brand partners. For further information on third party products or services and third party brand partners, please see Section 10 below (“PRODUCTS AND BRAND PARTNERS”).
YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BE BOUND BY ITS TERMS.
1. USE OF THE SERVICE BY YOU
We provide the Service for non-commercial, personal purposes only unless expressly stated otherwise. You may not rely on any information or opinions expressed on the Service for any other purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of Content (defined below). We do not endorse or warrant, and are not responsible for, the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement made on the Service by anyone other than our authorized employees or spokespersons while acting in their official capacities.
The Service may contain links to other websites or services maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on third-party websites or services. You assume sole responsibility for your use of third-party links, websites, products and services.
You agree that (i) you will use the Service solely for your own, non-commercial, personal use in accordance with this Agreement and in accordance with any specific rules or usage provisions specified by us on the Service (“Additional Terms”), (ii) all information supplied by you to us will be true, accurate, current and complete, and (iii) you will review the latest version of this Agreement posted on the Service from time to time to check for amendments that may apply to you (as more fully described below). We retain the right at our sole discretion to deny or suspend access to the Service to anyone, at any time and for any reason, without liability. To the extent there is a conflict between this Agreement and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
You acknowledge and understand that (i) you are not guaranteed to receive anything in return for using the Service, including but not limited to complimentary products, samples and/or any other promotions or giveaways, (ii) we offer complimentary products, samples, promotions and giveaways to select individuals that meet specific requirements including but not limited to those set by our clients, which we may or may not disclose to you at our complete discretion, and which you may not meet based on the information that you have provided, and (iii) these requirements are determined solely by us and may change at our discretion at any time.
You acknowledge and agree that your use of the Service, including, without limitation, the storage of any data, files, information and/or other materials on a server owned or under our control or in any way connected to the Service, shall be at your sole risk and responsibility and we shall have no obligation to back-up such data, files, information and/or other materials. We expressly reserve the right to limit storage capacity and to remove and/or delete any data, files, and/or other information stored or used in connection with the Service for any reason including, without limitation, if we deem, in our sole discretion, such data to be in violation of this Agreement and/or any rule or policy of ours and/or any local, state, or federal law or regulation. This provision does not apply to the extent it conflicts with applicable law.
You are solely responsible for any breach of your obligations under this Agreement and for the consequences (including, without limitation, any loss or damage which anyone may suffer) of any such breach.
We cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings, or other interruptions. Except as required by applicable law, we cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or settings.
Please remember that you are solely responsible for your interactions with other users of the Service. We reserve the right, but have no obligation, to monitor disputes between you and any other user of the Service, or any user’s action or inaction.
You agree that you will abide by the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising that can be found at FTC Endorsement Guides. We believe in full transparency and in full, fair and effective disclosures of material facts relating to your relationship with us and our clients. Per the FTC’s Endorsement Guides, if you are receiving free products, services, payment or other in-kind compensation in exchange for your participation in this Service or in return for promoting one of our clients or its products/services, you must disclose your connection to us and/or that client. This disclosure should appear in close proximity to any statements you make (including but not limited to product reviews) about any complimentary products, samples and/or any other promotions or giveaways that you receive through use of the Service.
You represent, warrant, and agree that you will not:
(i) use the Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement and/or any and all applicable local, state, national and international laws and regulations and treaties;
(ii) use the Service for the distribution, housing, processing, propagation, storage, or other handling of, any Content or other material prohibited by this Agreement, or any material that may create a risk of any loss or damage to any person or property, or any other material (including, without limitation, links to such material) that we deem, in our sole discretion, to be objectionable whether or not such material is unlawful;
(iii) permit or otherwise enable unauthorized users to access and/or use the Service;
(iv) use the Service to export software or data in violation of applicable U.S. laws or regulations;
(v) sell, copy, duplicate, rent, lease, loan, distribute, transfer, or sublicense the Service, or otherwise permit any third party to use or have access to the Service for any purpose (except as expressly permitted by us in writing) or decompile, reverse engineer, disassemble, modify, create a derivative work of, display in human readable form, attempt to discover any source code, or otherwise use any software that enables or comprises any part of the Service;
(vi) remove any copyright, trademark, patent or other proprietary notices from the Service or any Content on the Service;
(vii) distribute, publish, exhibit, or otherwise use the Service, in any manner and for any purpose not expressly permitted under this Agreement;
(viii) frame or utilize framing techniques to enclose the Service, or any portion thereof;
(ix) exploit the Service or collect any data incorporated in the Service in any automated manner through the use of bots, metaspiders, crawlers or any other automated means;
(x) register as a user of the Service by providing false, inaccurate, or misleading information;
(xi) post hyperlinks to commercial services or websites;
(xii) impersonate any person or entity, including, without limitation, an employee of ours, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(xiii) collect personally identifiable information about other users of the Service for commercial or any other purposes;
(xiv) post or otherwise make available irrelevant Content, repeatedly post or make available the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure;
(xv) attempt to gain unauthorized access to our computer systems (including any non-public areas of the Service) or engage in any activity that disrupts, diminishes the quality of, probes for vulnerability, interferes with the performance of, or impairs the functionality of, the Service (or the servers and networks which are connected to the Service);
(xvi) make available Content that in our opinion constitutes or contains "affiliate marketing," "link referral codes," "junk mail," "spam," "chain letters," "pyramid schemes," or unsolicited commercial advertisement, except to the extent such Content is provided to you by us or one of our affiliates for a purpose specifically authorized by us in writing;
(xvii) create or attempt to create multiple user accounts;
(xviii) access or use the Service if you have been previously removed from the Service by us;
(xix) use the Service for any commercial purpose or for the benefit of any third party, except as otherwise explicitly permitted for you by us;
(xx) use the Service to encourage any conduct that (1) violates any applicable law or regulation, or any term or condition of this Agreement, or (2) could create a risk of harm, loss or damage of any kind; or
(xxi) attempt to access or search the Service or Content in order to scrape any Content or information from the Service, or otherwise use, upload Content to, or create new links, posts or referrals in the Service through the use of any computerized or mechanized process, engine, software, tool, agent, device or mechanism other than the software provided by us or other generally available third party web browsers.
2. PROVISION OF THE SERVICE BY US
You acknowledge and agree that the form and nature of the Service which we provide may change from time to time without prior notice to you. You acknowledge and agree that we may decline to provide you access to the Service or stop (permanently or temporarily) providing the Service (or any related products, features, programs or Content) to you or to users generally at our sole discretion, without liability or prior notice to you. You may stop using the Service at any time. You do not need to specifically inform us when you stop using the Service. You acknowledge and agree that if we disable access to your account, you may be prevented from accessing the Service, your account details, or any files or other Content which is contained in your account, except as required by applicable law. Any new features that augment or enhance the current Service shall be subject to this Agreement.
By providing your mobile phone number and using the Service, you hereby affirmatively consent to us sending you ongoing text messages (including by automatic telephone dialing systems) for marketing purposes, including to notify you of newly available Third Party Product Samples (defined below) and update you about the status of your Third Party Product Sample orders. PINCHme will not assess any charges for text messages, but standard message charges or other charges from your wireless carrier may apply. You can opt-out of receiving certain promotional communications (emails, text messages, and push notifications) from us at any time by: (i) for emails, following the instructions as provided in emails to click on the unsubscribe link, or contacting us at [email protected] with the word UNSUBSCRIBE in the subject field of the email; (ii) for text messages, texting “STOP” in response to any text message you receive or contacting us at [email protected] and specifying you want to opt-out of text messages; and (iii) for push notifications or in-app messages, adjusting the permissions in your mobile device. Please note that your opt-out is limited to the email address, phone number, or device used and will not affect subsequent subscriptions or, for emails, non-promotional communications, such as those about your account, transactions, servicing, or our ongoing business relations. You understand that we may send you a text message confirming any opt-out by you. If you provide to us the number for a mobile phone or other device, you represent, warrant, and guarantee that such device is registered in your name and owned by you.
3. ACCESS TO THE SERVICE; RESERVATION OF RIGHTS
Subject to your compliance with this Agreement, we hereby give you a personal, revocable, worldwide, non-assignable and non-exclusive right to access and use the Service in the manner and for the purposes expressly permitted by the Agreement. We also hereby grant you a limited, revocable, and non-exclusive right to create a hyperlink to the Site or subdomains thereof so long as the link does not portray us, our parents, subsidiaries, or affiliates, or products or services provided by us or our parents, subsidiaries or affiliates in a false, misleading, derogatory, or otherwise offensive manner in our sole judgment. You may not assign (or grant a sub-license of) your rights to use the Service, grant a security interest in or over your rights to use the Service, or otherwise transfer any part of your rights to use the Service and any such attempt shall be null and void at the time of such attempt.
We reserve all right, title and interest in and to the Service not expressly granted to you under this Agreement. There are no implied licenses under this Agreement.
4. ACCOUNT ELIGIBILITY AND SECURITY; PASSWORD
5. CONTENT IN THE SERVICE
You understand that all information and materials (including, without limitation, testimonials, ratings and reviews, product feedback, data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) accessible as part of, or through the use of, the Service are the sole responsibility of the person from which such information originated. All such information is referred to as “Content”.
You acknowledge that Content presented to you as part of the Service may be protected by intellectual property rights which are owned by the persons and/or entities that provide that Content to us (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by us or by the owners of that Content, in writing.
We reserve the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content.
You understand that by using the Service you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Service at your own risk.
You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Service and for the consequences of your actions (including, without limitation, any loss or damage which any person may suffer) by doing so.
Content that you create, transmit, or display while using the Service must be appropriate for the Service. We may reject, remove, or edit any Content that: (i) is unlawful, harassing, defamatory, abusive, hateful, threatening, obscene, harmful, tortious, libelous, or invasive of another's privacy; (ii) attacks the character or damages the reputation of PINCHme or other users, name-calls, insults, ridicules, mocks, electronically stalks or otherwise harasses another individual; (iii) contains material or language that is profane, pornographic, sexually graphic, ethnically offensive, “off color,” political, or propaganda; (iv) contains crude, vulgar or offensive images or nudity; (v) infringes or violates any party's rights, including, without limitation, using third-party copyrighted materials or the names or likenesses of others without appropriate permission and attribution, using third-party trademarks without appropriate permission or attribution or in a way that is likely or intended to cause confusion, or using or distributing third-party information (whether or not protected as a trade secret) in violation of a duty of confidentiality; (vi) has been broadcasted, streamed, published or televised in any form of media, including, without limitation, television, books and movies; (vii) contains any advertising, promotional materials, chain letters, spam, junk mail, or any other type of unsolicited mass email to people or entities that have not agreed to be part of such mailings; (viii) uses the Service to buy or solicit any goods, services, or money to advertise or sell products or services of others; (ix) discloses or references any personally identifiable information belonging to you or a third party; (x) depicts or describes any activities that would violate the personal privacy rights of others, including, without limitation, collecting and distributing information about others without their permission; (xi) impersonates any person or entity; falsely states or otherwise misrepresents an affiliation with any person or entity; intentionally omits, deletes, forges, or misrepresents transmission information, including, without limitation, headers, return mailing, and Internet protocol addresses; or otherwise manipulates identifiers to disguise the origin of any Content transmitted to the Service; (xii) contains any worms, viruses, or other harmful, disruptive, or destructive files, code, or programs; (xiii) interferes with, disrupts, or harms in any way the Service or any servers or networks connected to the Service; (xiv) uses the Service for any illegal purpose, or violates any applicable local, state, national, foreign or international law or regulation, intentionally or unintentionally; (xv) promotes drugs or alcohol, illegal or inappropriate activities or any other dangerous behavior that may result in harm; (xvi) posts on behalf of a banned user; or (xvii) we otherwise determine to be inappropriate for the Service or inconsistent with our image and reputation.
6. INTELLECTUAL PROPERTY
You acknowledge and agree that we (or our licensors) own all legal right, title and interest in and to the Service, including, without limitation, any intellectual property rights which subsist in the Service (whether those rights happen to be registered or not, and wherever in the world those rights may exist) including, without limitation, all rights with respect to copyrights, patents, trademarks, service marks, moral rights, trade names, domain names, technology, mask works, know-how, design rights, trade dress, trade secrets, inventions, ideas, processes, formulas, source code and object code, data, and similar rights including, without limitation, the information in any application, registration, or renewal thereof that may be protected under the intellectual property laws, regulations, or rules of any country. Without limiting the foregoing, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material, and all intellectual property rights to the same, are owned or controlled by us, our licensors, or both.
You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Service.
You agree that in using the Service, you will not use any trademark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
7. GRANT OF RIGHTS
You retain copyright and any other rights you already hold in Content which you upload or otherwise submit to, or make available on, the Service.
By posting, uploading, submitting or otherwise making available Content, you give us a worldwide, perpetual, fully-sublicensable (through multiple tiers), transferable, irrevocable, royalty-free, and non-exclusive license to use, host, store, reproduce, adapt, modify, translate, re-arrange, publish, publicly perform, publicly display, distribute and otherwise exploit such Content (in whole or in part) in any manner or media whatsoever, now known or hereafter developed, for any purpose whatsoever, including, without limitation, (i) in connection with our business and (ii) in connection with the business of our Brand Partners (defined below) and our successors, subsidiaries, and their related companies. The Service is a public platform and other users of the Service may, and you hereby grant all users of the Service the right to, search for, see, and/or use any Content that you make publicly available through the Service to the extent permitted by the features and functionalities of the Service.
You agree that we are not responsible for protecting and enforcing any intellectual property rights granted by you to us in connection with this Agreement and that we have no obligation to do so on your behalf.
By submitting Content, you also grant us and our Brand Partners a perpetual, worldwide, fully transferable, sublicensable, irrevocable, fully-paid up, royalty free license to use any personally identifying information you include in that Content, if any, in any way, including, without limitation, in future modifications of the Service, other products or services, advertising or marketing materials.
In connection with Content you upload, submit, post, or otherwise make available via the Service, you affirm, represent, and warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize us to use such Content in the manner contemplated by this Agreement. You further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including, without limitation, privacy and publicity rights, unless you are the owner of such rights or have written permission from their rightful owner to post the material and to grant to us all of the rights granted herein.
You understand that we may (a) transmit or distribute your Content over various public networks and in various media; (b) make such changes to your Content as determined by us in our sole discretion (including, without limitation, changes to conform and adapt Content to the technical requirements of connecting networks, devices, services or media); and (c) display advertisements in connection with your Content and/or use your Content for advertising and promotional purposes. You agree that the rights and licenses you grant to us in this Agreement shall permit us to take these actions.
You represent and warrant to us that you have the full right, capacity, power and authority necessary to grant the rights and licenses granted herein.
Any California residents under the age of eighteen (18) who have registered to use the Service and have posted content or information on the Service can request that such information be removed from the Service by contacting us at [email protected]. Requests must state that the user personally posted such content or information and detail where the content or information is posted. We will make reasonable good faith efforts to remove the post from prospective public view.
8. COPYRIGHT AGENT
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. It is our policy, in compliance with the DMCA, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others. If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our copyright agent with the following information: an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Service; your address, telephone number, and e-mail address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf. Our copyright agent for notice of claims of copyright infringement can be reached as follows:
PINCHme Group, Inc
New York, NY 10012
Phone: (917) 512-6553
Email: [email protected]
We will respond to notifications of claimed copyright infringement in accordance with the DMCA. We suggest that you consult your legal advisor before filing a notice with our copyright agent. You should note that there can be penalties for false claims under the DMCA.
10. PRODUCTS AND BRAND PARTNERS
If you become a Member, you may be able to receive, at no charge, promotional samples of certain third party products or services (“Third Party Product Samples”) that are provided by our third party brand partners (“Brand Partners”) solely for personal, non-commercial sampling and evaluation purposes. These Third Party Product Samples are not owned or controlled by us, and we are not responsible with respect to them or the actions of our Brand Partners.
With respect to Third Party Product Samples and Brand Partners, you agree to the following:
You will use Third Party Product Samples solely for your personal, non-commercial sampling and evaluation purposes, and in accordance with any requirements set forth by our Brand Partners. You will not share Third Party Product Samples with any third parties outside of your household.
PINCHme cannot and does not guarantee the availability of any Third Party Product Samples. Availability of Third Party Product Samples at all times remains subject to (i) the requirements of individual promotional campaigns associated with such Third Party Product Samples, (ii) the availability of Third Party Product Samples as determined by our Brand Partners, and (iii) our discretion.
PINCHme is not responsible for the quality or other characteristics of any Third Party Product Samples. It is your responsibility to ensure that you do not order or use any Third Party Product Samples that may cause any harm to you or any other person, including any adverse reaction, illness, injury or death as a result of any allergy or condition that you may have. You agree to read all Third Party Product Sample descriptions and instructions and ingredients, if any, as provided by our Brand Partners (which may be displayed on the Service at their direction) and on or with the shipped Third Party Product Samples prior to sampling the related Third Party Product Sample.
PINCHme may receive a commission, fee, and/or other compensation on some purchases you make from our Brand Partners sites or services that are linked from the Service.
Nothing on the Service constitutes a binding offer to sell, distribute or give away Third Party Product Samples. We reserve the right at any time after receipt of your order for Third Party Product Samples to accept or decline such order, or any portion thereof, or to not ship to particular addresses. We reserve the right at any time to limit the quantities of Third Party Product Samples offered or shipped by us to any person, family, or sample test group.
Images or descriptions available on or through the Service of Third Party Product Samples are posted at the direction of our Brand Partners and may not accurately capture the actual appearance, color, look and feel, specifications, features, or functionality of such Third Party Product Samples. You agree that you are solely responsible for evaluating the accuracy of such descriptions, and that we have no independent obligation to review or verify the accuracy of such descriptions.
ALL THIRD PARTY PRODUCT SAMPLES ARE PROVIDED “AS IS”. PINCHME MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES WITH RESPECT TO ANY THIRD PARTY PRODUCT SAMPLESFEATURED, MENTIONED, DESCRIBED, DISTRIBUTED, GIVEN AWAY, OFFERED, OR OTHERWISE AVAILABLE ON OR IN CONNECTION WITH THE SERVICE. BRAND PARTNERS MAY REQUIRE THAT YOU AGREE TO THEIR ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS, AND/OR RULES IN ORDER TO MAKE USE OF THEIR THIRD PARTY PRODUCT SAMPLES. IF YOU HAVE ANY QUESTIONS REGARDING SUCH AGREEMENTS, PLEASE CONTACT THE BRAND PARTNERS DIRECTLY.
IF YOU ORDER, OBTAIN OR REQUEST THIRD PARTY PRODUCT SAMPLES THROUGH THE SERVICE, NOTE THAT WE HAVE NO CONTROL OVER, AND ASSUME NO RESPONSIBILITY FOR, THE QUALITY, QUANTITY, SIZE, CHARACTER, FITNESS FOR A PARTICULAR PURPOSE, SPECIFICATIONS, FEATURES, FUNCTIONALITY, SAFETY, OR LEGALITY OF SUCH THIRD PARTY PRODUCT SAMPLES, THE TRUTH OR ACCURACY OF ANY INFORMATION ASSOCIATED THEREWITH, OR THE ABILITY OF ANY INDIVIDUAL OR ENTITY TO SELL, SHIP, OR OTHERWISE PROVIDE SUCH THIRD PATY PRODUCT SAMPLES.
YOU AGREE THAT PINCHME AND ITS DIRECTORS, OFFICERS, AND EMPLOYEES ARE NOT RESPONSIBLE, AND SHALL HAVE NO LIABILITY TO YOU, WITH RESPECT TO THIRD PARTY PRODUCT SAMPLES FEATURED, MENTIONED, DESCRIBED, DISTRIBUTED, GIVEN AWAY, OFFERED OR OTHERWISE AVAILABLE ON OR THROUGH THE SERVICE. IF YOU HAVE ANY CONCERNS REGARDING THIRD PARTY PRODUCT SAMPLES, PLEASE CONTACT THE BRAND PARTNERS DIRECTLY.
For each Third Party Product Sample received by you, you agree to honestly complete within thirty (30) days of receipt of the Third Party Product Sample a Third Party Product Sample feedback survey that we may send to your e-mail address or make available to you on the Service. You acknowledge that failure to provide requested feedback may cause your Membership to be suspended or terminated or otherwise limit your ability to receive additional Third Party Product Samples.
11. CHANGES TO AGREEMENT; ADDITIONAL RULES & POLICIES
We reserve the right to change, amend and/or modify this Agreement, in whole or in part, at any time, upon the provision of reasonable notice thereof to you, which may include sending you an e-mail or posting an announcement on the Service. From time to time, we may post on the Service or otherwise notify you of additional or different rules and policies relating to the Service. These rules and policies shall thereafter be part of this Agreement.
12. NO WARRANTIES.
THE SERVICE AND ALL INFORMATION, CONTENT, MATERIALS, THIRD PARTY PRODUCT SAMPLES AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILBLE TO YOU BY US THROUGH THE SERVICE, OR IN CONNECTION WITH THE SERVICE, ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THE ACCURACY, RELIABILITY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE, OR THAT THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY DATA, FILES, AND/OR OTHER INFORMATION STORED ON A SERVER OWNED OR UNDER OUR CONTROL OR IN ANY WAY CONNECTED WITH THE SERVICE, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN DISCLAIMERS OR LIMITATIONS OF WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. ANY MATERIAL DOWNLOADED OR THIRD PARTY PRODUCT SAMPLES OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE (INCLUDING ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA) THAT RESULTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. WE TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY CONTENT THAT YOU OR ANY THIRD PARTY SUBMITS, POSTS OR SENDS OVER THE SERVICE. YOU ARE SOLELY RESPONSIBLE FOR YOUR CONTENT AND THE CONSEQUENCES OF POSTING OR PUBLISHING IT, AND YOU AGREE THAT WE ARE ONLY ACTING AS A PASSIVE CONDUIT FOR YOUR AND OTHER USERS’ ONLINE DISTRIBUTION AND PUBLICATION OF CONTENT PROVIDED BY YOU AND THEM. NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS HEREIN DO NOT EXCLUDE ANY DAMAGES RESULTING FROM OUR OWN INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
13. DISCLAIMER OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE, OUR PARENTS, SUBSIDIARIES, AFFILIATES, OR ANY OF THEIR DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS OR THIRD PARTY LICENSORS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE SERVICE PROVIDED HEREUNDER OR ANY THIRD PARTY PRODUCT SAMPLES OR MATERIALS OFFERED OR SUPPLIED VIA THE SERVICE OR ANY OTHER INTERACTIONS WITH US, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, RECKLESSNESS, PROFESSIONAL NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS OR LEGAL THEORY. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER OR NOT THE DAMAGES ARISE DIRECTLY OR INDIRECTLY FROM: (i) THE USE OR MISUSE OF, OR RELIANCE UPON, THE SERVICE PROVIDED HEREUNDER; (ii) THE INABILITY TO USE THE SERVICE FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR ANY FAILURE OF PERFORMANCE NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, OR DESTRUCTION; (iii) THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE; OR (iv) THE DELETION AND/OR CORRUPTION OF ANY DATA, INFORMATION, DOCUMENTS, FILES AND/OR ANY OTHER MATERIALS STORED ON A SERVER OWNED OR UNDER OUR CONTROL OR IN ANY WAY CONNECTED TO THE SERVICE. NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS HEREIN DO NOT EXCLUDE ANY DAMAGES RESULTING FROM OUR OWN INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
The Service is controlled and operated from facilities in the United States. We make no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable national, state, local or other laws, statutes, directives, rules, regulations, and all interpretations or orders of any government, administrative or regulatory authority or court, including but not limited to those related to export and import of software, technical information or services. 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. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
14. RELEASE AND INDEMNIFICATION
You agree to release, indemnify and hold harmless us, our parents, subsidiaries, affiliates, directors, members, officers, employees, agents and third party licensors, from and against any and all liabilities, losses, damages, claims and expenses, including, without limitation, attorneys’ fees, with respect to (i) your misuse of the Service, (ii) your violation or breach of this Agreement or rights of another, (iii) Content provided by you or through use of your account, and/or (v) Third Party Product Samples. You agree to cooperate fully with us in the defense of any claim that is the subject of your obligations hereunder. For the avoidance of doubt, this section shall survive the termination of this Agreement. This section does not require you to indemnify any of the above-referenced parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Service.
15. CALIFORNIA WAIVER
If you are a California resident, you waive California Civil Code 1542, which says: "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."
16. TERM AND TERMINATION
This Agreement is effective until terminated by us or you. We shall have the right to suspend your Membership and/or terminate this Agreement and/or your Membership including, without limitation, your right to access and use the Service, at any time in our sole discretion and without advance notice to you. The licenses granted herein by us shall automatically terminate without advance notice if you fail to comply with any material provision of this Agreement. You may terminate this Agreement at any time by requesting deletion of your user account by emailing [email protected] and discontinuing use of any and all parts of the Service. Upon termination of this Agreement for any reason, you shall immediately cease using the Service. All provisions that should by their nature survive the termination of this Agreement shall survive the expiration of this Agreement including, without limitation, the rights and licenses you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, no class action, and no trial by jury.
17. AGREEMENT TO ARBITRATE DISPUTES AND CHOICE OF LAW
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.**
WE BOTH AGREE TO ARBITRATE: You and PINCHme agree to resolve any claims relating to this Agreement through final and binding arbitration, except that, to the extent you have in any manner violated or threatened to violate PINCHme’s intellectual property rights (for example, trademark, trade secret, copyright, or patent rights). Under such circumstances PINCHme may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Service, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
WHAT IS ARBITRATION: Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
ARBITRATION PROCEDURES: The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any dispute, controversy, or claim arising out of or relating to this Agreement shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures in front of one arbitrator. If there is a conflict between JAMS Rules and the rules set forth in this Terms of Service Agreement, the rules set forth in this Terms of Service Agreement will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267. To initiate arbitration, you or PINCHme must do the following things:
(1) Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com.
(2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee to: JAMS to your local JAMS office or to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111.
(3) Send one copy of the Demand for Arbitration to the other party.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If travelling to New York is a burden, you may participate in the arbitration by phone or via document submission to the fullest extent allowable by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). Arbitration under this Agreement shall be held in the United States in New York, NY under New York law without regard to its conflict of laws provisions. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
AUTHORITY OF ARBITRATOR: The arbitrator will decide the rights and liabilities, if any, of you and PINCHme, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and PINCHme.
NO CLASS ACTIONS: You may only resolve disputes with us on an individual basis, and are giving up your right to serve as a representative or to participate as a member of a class of claimants, in any lawsuit involving this Agreement. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
WAIVER OF JURY TRIAL: THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL BY JURY OR IN FRONT OF A JUDGE, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and PINCHme in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND PINCHME WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
OPT-OUT OF AGREEMENT TO ARBITRATE: You can decline this agreement to arbitrate by emailing us at [email protected] and providing the requested information as follows: (1) your name; (2) the URL of this Agreement; (3) your address; (4) your phone number; (5) and clear statement that you wish to opt out of this arbitration provision in this Agreement. The Opt-Out Notice must be emailed no later than 30 days after the date you first accept this Agreement by using the Service.
Choice of Law/Forum Selection
In any circumstances where the Agreement to Arbitrate Disputes permits the parties to litigate in court, this Agreement shall be governed by the laws of the State of New York without regard to its conflict or choice of laws provisions. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in New York, NY.
If any provision in this Agreement is invalid or unenforceable, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability, and all other provisions of this Agreement shall remain in effect.
19. NO ASSIGNMENT, SUBLICENSE OR TRANSFER
You may not assign, sublicense, or transfer this Agreement or any rights or obligations hereunder without our prior written consent. Any such attempted assignment, sublicense, or transfer will be null and void and we, in our sole discretion, shall have the right to immediately terminate this Agreement.
You agree that we may communicate with you electronically. Such electronic communications may consist of e-mail, notices posted on the Service, and other communications. For example, we may send e-mails to Members containing newsletters, information about Third Party Product Sample campaigns, offers, surveys, and other communications. You agree that all agreements, notices, disclosures, and other communications we send to you electronically will satisfy any requirement that such communication be in writing and, to the extent intended, such communication will be an enforceable and binding term or amendment to this Agreement.
21. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding and agreement between the parties relating to its subject matter. Any waiver of or promise not to enforce any right under this Agreement shall not be enforceable unless evidenced by a writing signed by the party making said waiver or promise. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, AGENT, SALES PERSON, OR OTHER PERSON IS AUTHORIZED BY US TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION, OR PROMISE THAT IS DIFFERENT THAN OR IN ADDITION TO THE WARRANTIES, REPRESENTATIONS, OR PROMISES EXPRESSLY SET FORTH IN THIS AGREEMENT.
22. CUSTOMER SUPPORT
If you have any questions or comments, please send an e-mail to us at [email protected]. You acknowledge that the provision of support is at our sole discretion and that we have no obligation to provide you with customer support of any kind. All legal notices to us must be mailed to 611 Broadway, Suite 308 New York NY 10012 (Attention: Legal).