CONSUMER TERMS OF SERVICE - Last updated on June 28, 2011
ACCEPTANCE OF TERMS; CHANGES TO THESE TERMS OF SERVICE
PLEASE REVIEW THESE CONSUMER TERMS OF SERVICE ("TERMS OF SERVICE") FOR USE OF OUR WEBSITE WWW.DAILYCART.COM (OR SUCCESSOR DOMAIN THERETO) (OUR "SITE") AND OUR SERVICES CAREFULLY. THESE TERMS OF SERVICE REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN A COURT OR JURY TRIAL OR CLASS ACTION. By using our Site and/or our Services (defined below), you agree to be legally bound by these Terms of Service. These Terms of Service incorporate our Privacy Policy, which you should also review at dailycart.com/support/privacy-policy. WE MAY AMEND THESE TERMS OF SERVICE AND/OR OUR PRIVACY POLICY FROM TIME TO TIME BY POSTING THEM ON OUR SITE OR OTHERWISE NOTIFYING YOU, AND YOU AGREE TO BE BOUND BY ANY SUCH AMENDMENTS. IF THESE TERMS OF SERVICE, INCLUDING OUR PRIVACY POLICY, OR ANY AMENDMENTS TO THESE TERMS OF SERVICE OR PRIVACY POLICY ARE UNACCEPTABLE TO YOU, YOU MUST DISCONTINUE YOUR USE OF OUR SITE AND OUR SERVICES. YOUR USE OF OUR SITE AND/OR SERVICES AFTER ANY AMENDMENTS TO THESE TERMS OF SERVICE OR OUR PRIVACY POLICY SHALL BE DEEMED AS YOUR ACCEPTANCE TO SUCH AMENDMENTS. As used in these Terms of Service, (a) the terms "we", "us", and "our" refer to Adknowledge, Inc., a Delaware corporation, the owner of the Site and the Services, and (b) the terms "you" and "your" refer to the person accessing our Site or our Services or the entity on whose behalf a person accesses our Site or our Services.
OUR SERVICES
2.1 Our "Services" include offering discounted goods and/or services (a) on behalf of advertisers to consumers that register with us and sign-up for and/or purchase a voucher to receive such offers on behalf of advertisers ("DailyCart Offers"), and (b) to consumers by way of offers provided to us by third parties for display on our Site ("Third Party Offers"). You are responsible for reviewing and understanding the terms and conditions of DailyCart Offers and Third Party Offers relating to our Services and the use of our Site and any discount DailyCart vouchers relating to the Services. The DailyCart vouchers are referred to in these Terms of Service as "DVouchers". The DailyCart Offers and the Third Party Offers may be referred to collectively in these Terms of Service as the "Offers". In some cases, Offers may be contingent upon enough consumers registering to receive the associated discounted goods and/or services. The applicable advertiser is referred to in these Terms of Service as the "Advertiser".
2.2 You are required to register with us to use our Services, which includes providing us with personal information such as your name and a valid email address. You must provide us with complete and accurate information, and it is your sole responsibility to update any information as necessary. You are solely responsible for the confidentiality of your password with respect to the use of our Site and Services and for any unauthorized use of your account. You must contact us immediately if you become aware of any breach of confidentiality of your password or any unauthorized use of your account. We may refuse, suspend, or terminate access to our Services at any time in our sole discretion and without liability. We may suspend, modify, or discontinue our Site and/or our Services at any time.
2.3 DailyCart Offers.
2.3.1 When the contingencies for the award of a DailyCart Offer are met, consumers receive a DVoucher for the applicable discounted good or service, which is redeemable with the Advertiser. DVouchers are issued on behalf of Advertisers. We shall not be obligated to be part of any dispute between you and an Advertiser and we are not responsible for the actions of Advertisers. We are further not responsible for the goods or services offered by Advertisers or for any losses, claims, demands, liabilities, damages, injuries, illnesses, costs or expenses of any kind or nature arising therefrom. Use of each DVoucher must be in accordance with all applicable laws, codes, and regulations and any additional terms and conditions imposed by Advertisers or us. Certain laws may restrict the use of DVouchers in certain circumstances (e.g., not valid for purchase of alcoholic beverages). In addition to other stated terms and conditions that may be associated with a particular DailyCart Offer or a DVoucher, unless otherwise stated in a DailyCart Offer or a DVoucher, or unless as otherwise required by law, the following applies to DVouchers:
2.3.1.1 Other than for the actual cash value you paid for the DVoucher for the period specified by
applicable law and with respect to the Advertiser named on the DVoucher, DVouchers have no
cash or credit value.
2.3.1.2 Duplicate use, sale, and trading of DVouchers is prohibited.
2.3.1.3 You are responsible for the use of each DVoucher and the security of the DVoucher upon
issuance.
2.3.1.4 Neither we nor any Advertiser is responsible for any loss, theft, or damage to DVouchers.
2.3.1.5 DVouchers cannot not be combined with other offers or promotions.
2.3.1.6 DVouchers expire on the date specified in the DVouchers; however, if you do not use the
DVoucher prior to its expiration, you may still redeem the DVoucher with the applicable
Advertiser for the actual cash value you paid for the DVoucher for the period specified by
applicable law.
2.3.1.7 DVouchers cannot be used for the payment of taxes, tips, shipping, or handling.
2.3.1.8 You may not receive credit or cash if you redeem a DVoucher for an amount which is less
than its full face value but more than the amount you paid for it.
2.3.1.9 DVouchers shall maintain a redemption value with the applicable Advertiser for the actual
amount you paid for the DVoucher less any amount you have redeemed.
2.3.2 Advertisers are responsible for compliance with all applicable laws relating to the DVouchers and for redemption of the DVouchers. To the extent that any applicable law conflicts with the terms and conditions of use of a DVoucher, use of such DVoucher will be limited to that allowed by law. If an Advertiser refuses to honor a DVoucher and you are unable to receive a refund from the Advertiser for the cash amount that you actually paid for the DVoucher (which may be less than the face value), upon your notice to us of such within any applicable time period designated by law, we will refund you the lesser of the actual cash amount that you paid us for the DVoucher or the actual cash amount used. So, for example, if you paid us $10 to receive a DVoucher for $30 to be used to purchase goods at an Advertiser's store and the Advertiser thereafter refuses to honor the DVoucher, we will refund you your $10 payment, provided that you notify us of such before the expiration of any applicable time period designated by law. You will not, however, be entitled to any refund or credit for any amount over the actual cash value you paid for a DVoucher.
2.3.3 If you, or if you attempt to, redeem a DVoucher in violation of these Terms of Service, any additional terms and conditions, or any applicable law, such action will render the DVoucher null and void.
2.4 Third Party Offers.
You acknowledge and agree that Third Party Offers are provided to us by third parties and we assume no responsibility for your decision to respond to such Third Party Offers, or for the accuracy of the Third Party Offers. Third Party Offers may contain material that is inappropriate, illegal, offensive or otherwise objectionable in some way. We are not responsible for any such Third Party Offers. YOU ASSUME ALL RISKS, DIRECT AND INDIRECT, FOR RESPONDING TO A THIRD PARTY OFFER AND YOU ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, REGULATIONS, AND CODES RELATING TO THE THIRD PARTY OFFERS AND REDEMPTION OF THIRD PARTY OFFERS.
YOUR USE OF OUR SERVICES
In using our Site and our Services, you (a) agree that you are at least 18 years old; (b) will comply with all these Terms of Service and all applicable laws; (c) will not use our Site or Services for commercial purposes; (d) are responsible for obtaining and maintaining any equipment needed to obtain DVouchers (for example, a printer), along with any costs and expenses relating to such, and understand and agree that we will not mail DVouchers to you; (e) agree that any comments or suggestions that you provide to us regarding our Site or our Services may be used by us in our sole discretion without any compensation to you whatsoever, and (f) agree that you will not, and will not attempt to, redeem DVouchers for the purchase of alcohol.
OWNERSHIP
Our Services and all materials contained on our Site are protected under applicable law relating to intellectual property rights such as copyright, patent, and trademark laws. No part of our Site may be reproduced, copied, modified, republished, or transmitted in any manner by any means without our written permission. You shall not modify our Site or sell, lease, loan, distribute or create any derivative works from it. Nothing contained on our Site confers any license, right, title, or interest in or to our intellectual property or any third-party's intellectual property (including but not limited to patents, copyrights and trademarks) in any form by implication, estoppel, or otherwise.
LINKS
Our Site contains links to third party sites. We assume no responsibility for your decision to utilize any such links, or for the accuracy or usefulness of any materials contained on any such sites. All such sites are not screened by us and so may contain material that is inappropriate, illegal, offensive or otherwise objectionable in some way. We are not responsible for, or do not endorse, any such sites or any content or services on such sites. You assume all risks, direct and indirect, for following links from our Site, either in advertisements or other links.
PRIVACY POLICY
You may review our Privacy Policy by clicking here.
TERMINIATION
We may terminate these Terms of Service at any time for any or no reason with or without notice, in our sole discretion. Sections 8, 9, 11, and 12 shall survive termination of these Terms of Service, along with those provisions that by their nature should survive termination of these Terms of Service.
DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
8.1 OUR SITE AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT ANY WARRANTIES OF ANY KIND. TO THE MAXIMUM AMOUNT PERMITTED BY LAW, WE AND THE ADVERTISERS EXPRESSLY DISCLAIM ANY WARRANTIES OF ANY TYPE WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ANY IMPLIED WARRANTY RELATING TO COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, ANY WARRANTY THAT ACCESS TO OUR SITE OR SERVICES WILL BE UNINTERRUPTED, RELIABLE, SECURE, OR ERROR-FREE, AND ANY WARRANTY REGARDING THE SUITABILITY AND QUALITY OF OUR SITE AND OUR SERVICES FOR YOUR PURPOSES OR EXPECTATIONS.
8.2 IN NO EVENT SHALL WE OR ANY OF OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, ADVERTISERS, AFFILIATES, PARENTS, SUBSIDIARIES, OR SUCCESSORS OR ASSIGNS BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY CLAIM FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS), OR FOR DAMAGE TO YOUR COMPUTER (INCLUDING BUT NOT LIMITED TO HARM RESULTING FROM DOWNLOADING, PRINTING, OR ACCESSING DVOUCHERS, THIRD PARTY OFFERS, INFORMATION OR MATERIAL ON THE INTERNET), LOSS OF DATA, REVENUE, OR FOR FAILURE TO STORE, MISDELIVERY OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL DISPLAYED, OR ANY CLAIM IN CONTRACT OR TORT (WHETHER OR NOT ARISING IN WHOLE OR PART OUT OF OUR ACT, OMISSION, FAULT, NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY) ARISING OUT OF OR IN CONNECTION WITH THE USE OF OUR SITE OR OUR SERVICES, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR WE HAVE BEEN ADVISED OF OR HAVE CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 IN THOSE STATES OR JURISDICTIONS THAT MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, CERTAIN PARTS OF THIS SECTION 8 MAY NOT APPLY TO YOU AND IN SUCH STATES OR JURISDICTIONS OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM AMOUNT PERMITTED BY LAW. YOU MAY ALSO HAVE CERTAIN CONSUMER RIGHTS UNDER LAWS OF CERTAIN STATES OR JURISDICTIONS THAT MAY NOT BE SUPERSEDED BY THESE TERMS OF SERVICE. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM AMOUNT PERMITTED BY LAW.
8.4 IN ADDITION, IN NO EVENT SHALL WE OR ANY OF OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, ADVERTISERS, AFFILIATES, PARENTS, SUBSIDIARIES, OR SUCCESSORS OR ASSIGNS BE RESPONSIBLE OR LIABLE FOR THE CONTENT, COMPLETENESS, ACCURACY OR LEGALITY OF INFORMATION OR MATERIAL DISPLAYED IN CONNECTION WITH OR ARISING OUT OF OUR SITE OR SERVICES OR ANY CESSATION, INTERRUPTION OR DELAY IN THE PERFORMANCE OF OUR SITE OR SERVICES FOR ANY REASON INCLUDING, WITHOUT LIMITATION, CAUSES BEYOND OUR REASONABLE CONTROL SUCH AS EARTHQUAKE, FLOOD, FIRE, STORM OR OTHER NATURAL DISASTER, ACT OF GOD, LABOR CONTROVERSY OR THREAT THEREOF, CIVIL DISTURBANCE OR COMMOTION, ACT OF TERRORISM, DISRUPTION OF THE PUBLIC MARKETS, WAR OR ARMED CONFLICT OR THE INABILITY TO OBTAIN SUFFICIENT MATERIAL, SUPPLIES, LABOR, TRANSPORTATION, POWER OR OTHER ESSENTIAL COMMODITY OR SERVICE REQUIRED IN THE CONDUCT OF BUSINESS INCLUDING INTERNET ACCESS, OR ANY CHANGE IN OR THE ADOPTION OF ANY LAW, ORDINANCE, RULE, REGULATION, ORDER, JUDGMENT OR DECREE.
INDEMNIFICATION
You agree to indemnify, defend, and hold us, any parents, subsidiaries, and respective directors, officers, employees, agents, contractors, affiliates, subsidiaries, successors and assigns thereof harmless from any and all losses, claims, demands, liabilities, damages, costs or expenses of any kind or nature (including but not limited to reasonable attorneys' fees and costs of litigation) resulting from (a) your use of our Site or our Services, and (b) your breach of these Terms of Service.
INFRINGEMENT
We respect the intellectual property rights of others. In compliance with 17 U.S.C. § 512, if you believe any content on our Site infringes your intellectual property rights, please contact us (in writing, including your name, address, and telephone number, and providing a description and the location of the alleged infringing material) at the address stated at the end of these Terms of Service so that we may review any alleged infringement.
MISCELLANEOUS
These Terms of Service along with any another notices, policies, procedures, and terms and conditions on our Site or stated in any Offers and DVouchers contain the entire understanding with respect to your use of our Site and our Services. You and we are independent contractors and nothing in these Terms of Service creates a partnership, joint venture, employment, or agency relationship. You may not assign these Terms of Service or any rights or obligations herein without our prior written consent and any such assignment or attempt thereat will be null and void. No purported waiver of any provision of these Terms of Service by us will be effective unless in a writing signed by us. If any provision of these Terms of Service for any reason shall be declared void, illegal, invalid, or unenforceable in whole or in part, such provision will be severable from all other provisions herein and will not affect or impair the validity or enforceability of any other provision of these Terms of Service; provided, however, that a court having jurisdiction may revise such provision to the extent necessary to make such provision valid and enforceable. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provisions below and, if such prohibition is found to be unenforceable, the arbitration provisions (and only the arbitration provisions) shall be null and void. The failure by us to enforce any provision of these Terms of Service will not be deemed a waiver of such provision or any other provision.
GOVERNING LAW AND ARBITRATION
12.1 The laws of the State of California shall govern all matters arising out of these Terms of Service, without giving effect to any conflicts or choice of laws principles that would require the application of the laws of a different jurisdiction.
12.2 We hope that any complaints or disputes that you have relating to our Site or our Services can be resolved by contacting DailyCart's customer service at support@dailycart.com. If, however, we are unable to resolve any complaint or dispute informally, any complaint or dispute arising out of, relating to, or in connection with these Terms of Service (or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate) shall only and exclusively be resolved by submission to mandatory, final and binding arbitration by the American Arbitration Association or its successor ("AAA"). If AAA ceases to provide arbitration service, then the term "AAA" shall mean and refer to J.A.M.S. The arbitration shall only be conducted in Santa Monica, CA before a single arbitrator, in the English language. The arbitrator shall be a retired judge or justice, or a duly licensed attorney with no less than 15 years of experience in arbitrating commercial disputes involving the retail sale of goods and services. If the parties cannot agree upon an arbitrator within ten days of the filing of the demand for arbitration, the AAA shall select the arbitrator. Either party may commence arbitration by filing a written demand for arbitration with AAA and delivering a copy of such demand to the other party. The arbitration shall be held under the Commercial Arbitration Rules with Expedited Procedures of the AAA then in effect (or the J.A.M.S. Streamlined Arbitration Rules and Procedures in effect at the time the demand for arbitration is filed). Unless both you and we agree in writing otherwise, the arbitrator may not consolidate more than one person's claims or preside over any form of a representative or class proceeding. The arbitrator's determination shall be set forth in a brief, written statement reasonably explaining the disposition of the dispute and the amount of any award. The parties shall split the costs of all invoices issued by the AAA to conduct the arbitration but shall otherwise bear their own costs. Notwithstanding anything to the contrary herein, either party may seek injunctive relief in a court of competent jurisdiction to prevent irreparable harm from occurring prior to the selection of the arbitrator.
12.3 ANY ARBITRATION UNDER THESE TERMS OF SERVICE WILL TAKE PLACE ON AN INDIVIDUAL BASIS AND YOU AGREE NOT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY AGREEING TO ARBITRATE, YOU EXPRESSLY WAIVE ANY RIGHT TO A COURT OR JURY TRIAL AND RIGHT TO PARTICIPATE IN A CLASS ACTION. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
12.4 For any non-frivolous claim that is less than $10,000, we will pay the filing fee for the arbitration; provided, however, that if the arbitrator finds that your claim or relief sought is frivolous or brought for an improper purpose you shall promptly reimburse us all amounts paid by us that are your obligation to pay under the AAA rules. If the arbitrator grants an award in your favor based on the merits of your claim and such award is greater than the value of Adknowledge's last written settlement offer to you before an arbitrator was selected, then Adknowledge will pay you up to twice the amount of the award up to a maximum aggregate amount of $10,000.
12.5 If we make any amendment to the arbitration provisions of this Section 12, you may reject any such amendment by sending us written notice to the contact address provided below within thirty (30) days after such amendment. By rejecting any such amendment, you agree that you will arbitrate any dispute in accordance with this Section 12.
CONTACT
Adknowledge, Inc.
Attention: General Counsel
4600 Madison Avenue, 10th Floor
Kansas City, MO 64112
Last Updated: June 28, 2011
