REV 1: JULY 2016
5536/004/335280.41. Introduction.
Point2Go™ is a merchant-customer relationship management service that allows consumers to receive loyalty-based offers, discounts, rewards and/or promotional advertising content from merchants via a mobile device (collectively referred to as the “Service” or the “Point2Go™ Service”). Point2Go™ is a service provided by Creditcard Discount Services, Inc. (“CDS). References in these Terms to “we,” “our,” “us” or “Point2Go™” refer to CDS and CDS’s service providers and designees as deemed appropriate by CDS.
The Point2Go™ Service is made available through applications that can be downloaded to your mobile device or smart phone from an app store or app distribution platform by consumers (the “Consumer App”) and merchants (the “Merchant App” and together the “Point2Go™ Apps”). While we want you to enjoy the experience of using the Point2Go™ Apps and visiting our website at http://www.cdsus.com/point2go (hereinafter referred to as the “Site”), we also want you to understand the terms that are applicable to the Point2Go™ Apps and the Site.
If you do not agree with the Terms (as defined below), do not use the Site or install/use the Point2Go™ Apps (including the Point2Go™ Apps’ related services or features).
2. Agreement to the Terms and Disclosures.
After you download the Point2Go™ Apps on your mobile device (“Device”), you will be able to register with Point2Go™ and create your Point2Go™ account. However, before you begin that registration process, you will be asked to “click to agree” to these Terms of Use and our Privacy Policy (together referred to as the “Terms”). The Terms form a legally binding contract between you and Point2Go™ in relation to your use of the Site, the Point2Go™ Apps and the Services.
If you agree to be bound by the Terms, you represent and warrant that:
a. You are of the legal age of majority in the jurisdiction in which you reside and have the right and authority to agree to the Terms.
b. You will only use the Site and the Point2Go™ Apps in accordance with these Terms, as updated by Point2Go™ from time to time in its sole discretion, and all applicable laws, rules and regulations.
c. You are solely responsible for: (a) your acts and/or omissions in connection with your use of the Site and the Point2Go™ Apps (including, but not limited to, any resulting loss or damage that Point2Go™ or any third-party may suffer); and (b) your breach or failure to comply with these Terms, and the consequences thereof (including, but not limited to, any resulting loss or damage that Point2Go™ or any third-party may suffer).
d. Your agreement to the Terms includes agreement to all current and future disclosures, notices, receipts and statements required by applicable law and related to your Point2Go™ account ("Disclosures"), which will be communicated to you electronically from time-to-time by posting on the Site, via the email address associated with your account, and/or through in-App messaging.
Your “click to agree” to the Terms has the same effect as if you signed them in ink and your receipt of electronic Disclosures has the same meaning and effect as if Point2Go™ provided you with paper copies, whether or not you choose to view the Terms or Disclosures. Disclosures are considered received by you within 24 hours of the time posted to our Site, or emailed or messaged to you in-App.
3. Your Use of the Point2Go™ Apps and Service.
3.1 Eligibility. Registration for and use of the Point2Go™ Apps and Service and its features is void where prohibited. By registering and using the Point2Go™ Apps and Service and their features, you represent and warrant that (a) you have all rights necessary to create an account; (b) all registration information you submit is truthful and accurate; and (c) you will maintain the accuracy of such information. If you provide any information that is untrue, inaccurate, not current or incomplete (or we have reasonable suspicion that such information is untrue, inaccurate, not current or incomplete) or you otherwise have violated the Terms, we have the right to suspend or terminate your account and refuse any or all current or future use of the Service.
3.2 Registration and Passwords. When you create a Point2Go™ account, you will be asked to choose a user name (which may be your email address) and password. You may not select a user name that: (a) is used by someone else, (b) is indecent or offensive, or (c) violates these Terms or applicable laws, rules and regulations. You are solely responsible for maintaining the confidentiality of your user name and password. (Merchants will be required to provide additional information as set forth in the Merchant Subscription Agreement.) You should not allow anyone else to use your user name and password to log into the Service. You must notify us immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account so please be vigilant in protecting its confidentiality. Your earned discounts and rewards are at risk if you let someone use your account inappropriately.
You agree that we will not be liable for any loss that you may incur as a result of someone else using your user name or password, either with or without your knowledge. However, you could be held liable for losses incurred by us due to someone else using your user name or password.
In addition to creating your user name and password, you will be asked to provide certain information to enable CDS and others to contact you in accordance with the Terms. Please see the Privacy Policy for details.
3.3 Using your Point2Go™ Account (for Consumers). After you have created your Point2Go™ account, you will have the right to select and “opt-in” to merchant loyalty programs. When you select a merchant’s loyalty program, we will share your information and shopping activity with your selected merchant(s). We may also deliver special offers and push notifications from such merchant(s) to your Device. You have the right to “opt-out” of those special offers and push notifications. Your download of the Consumer App and creation of a Point2Go™ account will allow us to monitor your usage and your location data in order to identify, generate and show you targeted promotions. This monitoring will be done via a Point2Go™ geo-location feature that can be turned off at any time by using the settings on your Device. You will automatically receive Point2Go™ news, notices and announcements, unless you choose to opt-out of (and unsubscribe to) such information.
3.4 Using your Point2Go™ Account (for Merchants). Merchants please see your Merchant Subscription Agreement regarding use of your Merchant Account and the Merchant App. If there is a conflict between these Terms of Use and the Merchant Subscription Agreement, the terms of the Merchant Subscription Agreement shall control.
3.5 Updates. We continue to update our technology in order to provide the best possible experience for anyone that installs the Point2Go™ Apps, uses the Service or uses the Site. Accordingly, you acknowledge and agree that from time to time, and without prior notice to you, we may at its sole discretion release updates to the Point2Go™ Apps that you may need to install. In addition, some updates may prevent you from accessing the Point2Go™ Apps or certain features within the Point2Go™ Apps (permanently or temporarily) and, if that occurs, your earned discounts and rewards may not be available to you.
3.6 Prohibited Activities. By downloading one of the Point2Go™ Apps and creating an account, you have a non-transferable, non-sublicensable, non-exclusive license to access the Service, to view information contained in the Service and to interact with the Service solely for your own use. In connection with your access to and use of the Point2Go™ Apps, Services and Site, you must not:
a. use any “deep-link”,” robot”, spider or other device or process to access or acquire, copy or monitor any portion of the Site or Point2Go™ Apps;
b. attempt to gain unauthorized access to any portion or feature of the Site, or any other systems or network connection to the Site or Point2Go™ Apps by hacking, password “mining” or any other illegal means;
c. probe, scan or test the vulnerability of the Site, Point2Go™ Apps or any network connected thereto, nor breach the security or authentication measures on the Site, Point2Go™ Apps or any network or systems connected thereto;
d. decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover any source code, underlying ideas or algorithms in connection with any aspect of the Site or Point2Go™ Apps;
e.take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or Point2Go™ Apps;
f.use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, Site, the Point2Go™ Apps or with any other person’s use of the Service, Site or the Point2Go™ Apps;
g.interfere with or disrupt the Site, the Point2Go™ App or servers or networks connected to the Site;
h.collect or store personal data about other users;
i.copy or reproduce all or any part of the Point2Go™ App or the Site, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization;
j.republish, upload, post, transmit, disclose, or distribute (in any format) the Site or the Point2Go™ Apps (or any part) except as permitted under the Terms;
k.remove, relocate or otherwise alter any proprietary rights notices from the Site, the Point2Go™ Apps, the Content (or any part thereof);
l.modify, rent, lease, loan, sell, distribute, or create derivative works based on the Site or the Point2Go™ Apps in any manner;
m.exploit the Site, Service or the Point2Go™ Apps in any unauthorized way whatsoever; or
n.use the Service for any unlawful purpose, tamper with the Service, misrepresent your identity or age, use buying agents or conduct fraudulent activities on the Site or Point2Go™ Apps.
3.7 User Fraud. If we determine that you have engaged in any fraudulent use of the Point2Go™ Apps or Service, or use in violation of the Terms (or for merchants, the Merchant Subscription Agreement), in addition to its rights to terminate and recover any monies required to remedy such fraudulent use, we may impose a fee for each investigation conducted by us that results in a confirmation of such violation of the Terms. By registering for a Point2Go™ account, you agree to all additional fees and penalties that we may impose in the event we deem your use of the Point2Go™ Apps or Service is in breach of the Terms including, without limitation, the immediate termination of your account.
3.8 Interruptions and Disabled Accounts. When using the Site, Service or the Point2Go™ Apps, you may occasionally experience interruptions or downtime as a result of (a) internet issues beyond our control, (b) technical problems; or (c) scheduled downtime. We will try to minimize these incidents but we cannot guarantee that they will not occur. In addition, if pursuant to the Terms, we suspend or terminate access to your account, you may be prevented from accessing the Service and your account details on the Point2Go™ Apps.
4. Your Privacy and Personal Information
4.1Privacy. We understand that your privacy is important. We have developed a Privacy Policy describing how we collect, use and disclose information. By using the Site, the Service and/or downloading the Point2Go™ Apps, you agree that Point2Go™’s Privacy Policy is applicable to you. Please review the Privacy Policy at www.cdsus.com/point2go/privacy_policy.html.
4.2Personal Information. When you register with Point2Go™ and create an account, you will be asked to provide certain information such as your name, email address, and your mobile phone number. Consumers registering with Point2Go™, acknowledge that we may share your information and shopping activity with your selected merchants.
The Service may allow you to share your personal information and activity with other users and publish this information on the internet (including blogs and social media sites, such as Facebook, Twitter, Google+, etc.). You will need to take specific action for this to occur. Point2Go™ disclaims any and all liability and responsibility for any consequences (including, but not limited to, unforeseen consequences) of sharing (whether intended or unintended) your personal information.
5. Content.
5.1Content. Generally “Content” means data, text, images, photographs, graphics, audio, video, offers, and documents including, without limitation, marketing materials, press releases, white papers, product data sheets, and other information and content available on or through or submitted on or through the Site or Point2Go™ Apps.
5.2Receipt of Content. You consent to receiving Content through the Point2Go™ Apps. Content is provided by the merchants that you have selected and other merchants that are part of the Point2Go™ network of merchants. The merchants are the sole parties responsible for the Content that you receive and for providing you with offers, discounts or rewards. Any disputes regarding a merchant’s loyalty program and any other aspect of any transaction or other commercial dealing is solely between you and the relevant merchant.
We reserve the right at any time in its sole discretion to remove any Content for any or no reason, with or without prior notice or explanation, and without liability. Customers of a merchant must comply with the terms and conditions that any merchant may impose in connection with its loyalty program, and are solely responsible for any loss or damage that you (and CDS) may suffer as a result of your violation of any such terms and conditions.
5.3Your Posted Information. We may, but are not obliged to, allow you and other users to input Content, photographs, descriptions, drawings, audio materials, text, messages or other information (collectively "Posted Information") for display on the Point2Go™ Apps. You are solely responsible for all Posted Information you input into the Point2Go™ Apps and:
a.You must not upload, post, email, transmit or otherwise make available any Posted Information that: (a) is deemed harassing, threatening, indecent, obscene, pornographic, libelous, defamatory or otherwise objectionable, unlawful or tortious, harmful to children, or which violates third party privacy rights, as deemed by us in our sole discretion; (b) is fraudulent, false, misleading or deceptive; (c) will or may infringe the intellectual property rights of others; (d) contains spam or otherwise duplicative or unsolicited messages in violation of any applicable laws, rules and regulations; or (e) contains software viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
b.You represent and warrant that you own or have the necessary licenses, rights, consents, permissions and releases for your Posted Information and to grant the licenses and rights set out in these Terms. You are also responsible for any fees, royalties or other monies owing by reason of any Posted Information you provide.
c.Posted Information input by other users may, in whole or in part, be unauthorized, impermissible or otherwise violate these Terms. If you become aware of misuse of the Point2Go™ App by any person, please contact us via point2go@cdsus.com.
d.We reserve the right at any time in its sole discretion to reject, refuse to post or remove any Posted Information input by you at any time, for any or no reason, with or without prior notice or explanation, and without liability.
e.If you input Posted Information into the Point2Go™ Apps, such Posted Information and your public account profile (e.g. your name and any photo submitted through the registration process) will be available to the public. If you connect your account with a third party account or social media (such as Facebook, Google+, Twitter, etc.) your profile and activity may link to that account as well. You should therefore only input Posted Information that you are comfortable sharing under these Terms.
6. Your Use of the Point2Go™ Apps.
The following terms apply to your use of the Point2Go™ Apps including when accessed through or downloaded from any app store or app distribution platform, referred to below as an “App Provider”:
a.The Terms are concluded between you and us, and not with the App Provider. We are responsible for the Point2Go™ Apps (not the App Provider).
b.The App Provider has no obligation to furnish any maintenance and support services with respect to the Point2Go™ Apps.
c.The App Provider will have no warranty obligation whatsoever with respect to the Point2Go™ Apps.
d.The App Provider, and its subsidiaries, are third party beneficiaries of the Terms only as related to your use of the Point2Go™ Apps via the app store or app distribution platform and, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce the Terms (as related to your use of the Point2Go™ Apps via the app store or app distribution platform) against you as a third party beneficiary thereof.
e.You must also comply with any applicable terms of use provided by the App Provider, when using the Point2Go™ Apps.
f.We may release updates to the Point2Go™ Apps from time to time that you may need to install.
g.You may not remove any watermarks, labels or other legal or proprietary notices included in the Point2Go™ Apps, and you may not attempt to modify the Point2Go™ Apps, including any modification for the purpose of disguising or changing any indications of the ownership or source of the Point2Go™ Apps.
By agreeing to the Terms in connection with your download of the Point2Go™ Apps, or by signing into an App using your user name and password, you grant the App and the App Provider: (i) the authority to claim and review rewards and provide access for you to manage your account information within the App; and (ii) the authority to use your email address (or other contact information), which may be used in accordance with the App Provider's own privacy policy.
7. Ownership and Licensing.
7.1 We grant to you a personal, non-exclusive, non-transferable, revocable license to access and use the Site and to download and use the Point2Go™ Apps for your own use only in accordance with these Terms, and without the right to sub-license or assign in any way. We may from time to time upgrade, update or modify the Point2Go™ Apps, release new versions of the Point2Go™ Apps or create new related modules, each of which may, at our sole discretion, be included in this license.
7.2 All intellectual property rights in or related to the Site and the Point2Go™ Apps are and remain the sole and exclusive property of CDS and its licensors, and all right, title and interest associated with the Site and the Point2Go™ Apps not expressly granted by us under these Terms are withheld.
7.3 You are not granted any rights or license in or to the Point2Go™ or CDS names, trademarks, service marks, graphics or logos, which are and will remain the sole and exclusive property of CDS.
7.4 You hereby grant to us a perpetual, worldwide, royalty-free, non-exclusive, transferable, irrevocable license to use, modify, adapt, translate, create derivative works of, reproduce, publish, broadcast, distribute and commercially exploit your Posted Information, in whole or in part, and alone or as part of other works in any form, media or technology whether now known or hereafter developed, including, but not limited to, the right to sub-license through multiple tiers of sublicensees or assign in any way, in connection with the Site and the Point2Go™ Apps.
7.5 You hereby irrevocably waive and cause to be waived against Point2Go™ any claims and assertions of moral rights or attribution with respect to your Posted Information.
7.6 All intellectual property rights in or related to your Posted Information are and remain your sole and exclusive property, and all right, title and interest associated with your Posted Information, not expressly granted by you under these Terms, are withheld.
7.7 We grant you a personal, non-exclusive, non-transferable, revocable license to use merchant Content for your own personal use only in accordance with these Terms, and without the right to sub-license or assign in any way.
7.8 All intellectual property rights in or related to merchant Content are and remain the sole and exclusive property of the relevant merchants, and all right, title and interest associated with such Content, not expressly granted by us under these Terms, are withheld.
7.9 The Site and the Point2Go™ Apps may also contain information provided by us, including, but not limited to, text, images, logos, photographs, graphics, audio, video, marketing materials, press releases and related information (“Point2Go™ Content”). Point2Go™ Content is protected by copyright, trademark, patent, trade secret and other laws, and Point2Go™ owns and retains all rights in the Point2Go™ Content.
8. Disclaimer of Warranties; Limitation of Liability.
8.1 THE SITE, THE SERVICE, POINT2GO™ APPS, AND CONTENT ON OR AVAILABLE THROUGH THE SITE AND POINT2GO™ APPS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CDS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
8.2 CDS MAKES NO WARRANTY THAT: (A) THE SITE, POINT2GO™ APPS OR SERVICE WILL MEET YOUR REQUIREMENTS; (B) THE SITE, POINT2GO™ APPS OR SERVICE WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, POINT2GO™ APPS OR SERVICE WILL BE ACCURATE, TIMELY, OR RELIABLE; OR (D) THE QUALITY OF THE SITE, POINT2GO™ APPS OR SERVICE WILL MEET YOUR EXPECTATIONS.
8.3 YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, POINT2GO™ APPS, THE SERVICE AND ANY THIRD PARTY SITE (DEFINED BELOW). CDS SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SITE, POINT2GO™ APPS OR ANY THIRD PARTY SITE.
8.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE, POINT2GO™ APPS OR SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
8.5 CDS DOES NOT REPRESENT OR GUARANTEE THAT THE SITE AND THE POINT2GO™ APPS WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND CDS DISCLAIMS ANY LIABILITY RELATING THERETO. YOU WILL BE RESPONSIBLE FOR BACKING UP YOUR OWN DEVICE OR COMPUTER SYSTEM.
8.6 CDS HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSSES YOU MAY INCUR FROM UNAUTHORIZED USE OF YOUR POINT2GO™ ACCOUNT OR YOUR USER NAME AND PASSWORD, EITHER WITH OR WITHOUT YOUR KNOWLEDGE. HOWEVER, YOU COULD BE HELD LIABLE FOR LOSSES INCURRED BY CDS OR ANOTHER DUE TO SOMEONE ELSE USING YOUR PASSWORD OR USER NAME. YOU WILL INDEMNIFY AND HOLD CDS HARMLESS FOR ANY IMPROPER OR ILLEGAL USE OF YOUR POINT2GO™ ACCOUNT.
8.7 CDS DOES NOT REVIEW OR MONITOR ANY CONTENT. ACCORDINGLY, CDS HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSSES YOU MAY INCUR ARISING FROM OR IN CONNECTION WITH ACTIONS TAKEN OR OMITTED BY ANY MERCHANTS OR FOR THE NATURE OF THE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE FAILURE BY ANY MERCHANT TO HONOR ANY OFFER, DISCOUNT, REWARD OR OTHER OBLIGATIONS SUCH MERCHANT MAY HAVE TO YOU. IN ADDITION, CDS IS NOT RESPONSIBLE FOR THE GOODS AND SERVICES THAT YOU PURCHASE USING THE SERVICES OR THE POINT2GO™ APPS. THE PROVIDING MERCHANT IS RESPONSIBLE FOR ALL CUSTOMER SERVICE RELATED TO THOSE GOODS AND SERVICES, INCLUDING ORDER FULFILLMENT, ORDER CANCELLATION, RETURNS, REFUNDS AND ADJUSTMENTS, REBATES, FUNCTIONALITY AND WARRANTY, TECHNICAL SUPPORT, AND ISSUES CONCERNING EXPERIENCES WITH A MERCHANT'S PERSONNEL, POLICIES, OR PROCESSES. CDS IS ALSO NOT RESPONSIBLE FOR ANY CUSTOMER SERVICE RELATED TO YOUR PAYMENT INSTRUMENT(S).
8.8 CDS DOES NOT REVIEW OR MONITOR USER CONDUCT OR ANY POSTED INFORMATION INPUT INTO THE POINT2GO™ APPS OR POSTED ON THE SITE. ACCORDINGLY YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF POSTED INFORMATION IS AT YOUR SOLE RISK. CDS HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSSES YOU MAY INCUR RELATING TO YOUR CONDUCT OR POSTED INFORMATION OR THE CONDUCT OR POSTED INFORMATION OF ANY OTHER USER.
8.9 THE SITE AND THE POINT2GO™ APPS ARE MANAGED FROM CDS’ FACILITIES IN THE UNITED STATES. CDS DOES NOT REPRESENT OR WARRANT THAT THE SITE AND THE POINT2GO™ APPS ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER JURISDICTIONS. IF YOU ACCESS OR USE THE SITE AND THE POINT2GO™APPS FROM OTHER JURISDICTIONS, YOU DO SO OF YOUR OWN VOLITION AND AT YOUR OWN RISK.
8.10 Profiles and third party applications created and posted by users and merchants may contain links to other websites (“Third Party Sites”). We are not responsible for the content, accuracy or opinions expressed on such Third Party Sites, and such Third Party Sites are not necessarily investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked Third Party Site on the Site, via the Point2Go™ Apps or in the Service does not imply approval or endorsement of the linked Third Party Site by us. When you access these Third Party Sites, you do so at your own risk. CDS takes no responsibility for third party advertisements or third party applications that are posted on the Site, the Point2Go™ Apps or through the Service, nor does it take any responsibility for the goods or services provided by its advertisers or merchants.
8.11 LIMITATION OF LIABILITY. IN NO EVENT SHALL WE, OUR AFFILIATES OR OUR LICENSORS BE LIABLE FOR ANY DAMAGE, CLAIM OR LOSS INCURRED BY YOU, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, COMPENSATORY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR DAMAGES FOR PERSONAL INJURY, BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS OF PRIVACY, LOSS OF PROFITS OR REVENUE INCURRED BY YOU OR ANY THIRD PARTY IRRESPECTIVE OF WHETHER WE HAVE BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, DEFAMATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS, AS WELL AS THIRD-PARTY CLAIMS ARISING FROM YOUR ACCESS TO, OR USE OF, OR INABILITY TO USE THE SITE, SERVICE OR POINT2GO™ APPS.
IF THE DISCLAIMERS OR LIMITATIONS OF LIABILITY IN THIS SECTION 8.11 ARE FOR ANY REASON HELD BY A COURT OR OTHER TRIBUNAL OF COMPETENT JURISDICTION TO BE VOID, UNENFORCEABLE OR INAPPLICABLE, SUCH PROVISIONS SHALL BE LIMITED OR ELIMINATED TO THE MINIMUM EXTENT NECESSARY AND REPLACED WITH A VALID PROVISION THAT BEST EMBODIES THE INTENT OF THESE TERMS OF USE, PROVIDED, IN NO EVENT WILL THE AGGREGATE LIABILITY OF POINT2GO™ OR ITS AFFILIATES TO YOU AND ANY THIRD PARTY IN CONNECTION WITH THESE TERMS OR YOUR ACCESS TO AND USE OF THE SITE, SERVICE OR POINT2GO™ APPS EXCEED THE AMOUNT OF TWO HUNDRED FIFTY DOLLARS ($250.00), REGARDLESS OF THE FORM OR THEORY OF THE ACTION OR CLAIM.
8.12 ALL CLAIMS, CONTROVERSIES AND DISPUTES ARISING OUT OF THESE TERM OR USE OF THE POINT2GOTM APPS OR OTHERWISE RELATING TO THE SERVICES SHALL BE RESOLVED INDIVIDUALLY WITHOUT RESORT TO ANY CLASS ACTION OR OTHER COLLECTIVE LITIGATION. YOU HEREBY WAIVE ANY RIGHT TO RECOVER DAMAGES OR ANY OTHER RELIEF AS A MEMBER OF A CLASS OR SIMILAR COLLECTIVE ACTION.
9. Indemnification and Waiver.
9.1 BY USING THE SITE, SERVICE AND THE POINT2GO™ APPS, YOU AGREE, TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD CDS, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THESE TERMS, YOUR USE OF THE SITE, SERVICE AND THE POINT2GO™ APPS, AND YOUR POSTED INFORMATION.
9.2 YOU CANNOT SUE OR RECOVER ANY DAMAGES FROM CDS, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, AND LICENSORS AS A RESULT OF ITS DECISION TO (A) REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, (B) WARN YOU, SUSPEND OR TERMINATE YOUR ACCESS TO THE SITE AND POINT2GO™ APPS, OR (C) TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF CDS’ CONCLUSION THAT A VIOLATION OF THESE TERMS HAS OCCURRED.
9.3 THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THESE TERMS.
10. Changes to the Terms.
We reserve the right to make changes to the Terms at any time by publishing a revised version of the Terms on the Site, via the email address associated with your account or via the Point2Go™ Apps, through in-App messaging. The revised version of the Terms will take effect from the time at which it is first published. You will be subject to the Terms in force at the time that you use the Site or download the Point2Go™ Apps. Your continued use of the Site and Point2Go™ Apps indicates your acceptance of any such updates and changes. You are advised to check the Terms from time to time for any updates or changes that may affect you. We last modified these Terms of Use on the date stated at the beginning of these Terms of Use. If you are dissatisfied with the Service, its content or any Terms (including as modified), you agree that your sole and exclusive remedy is to discontinue using the Service. The Terms are the entire agreement between you and Point2Go™ with respect to your use of the Service.
11. Suspension and Termination.
11.1 While we look forward to providing you with excellent service for a long period of time, consumers may cancel their Point2Go™ account at any time, for any reason, with no further obligation to Point2Go™. Upon termination of consumer accounts, consumers will no longer have access to their earned discounts, points and rewards. Merchants please see the Merchant Subscription Agreement for termination.
11.2 We reserve the right, in our sole discretion, to reject, refuse to post or remove your Posted Information, or to deny, restrict, suspend, or terminate your access to your account and all or any part of the Service at any time, for any or no reason, with or without prior notice or explanation, and without liability. Following the suspension or termination of your account, Point2Go™ will not be under any obligation to return any Posted Information of any kind to you. Any provisions that by their nature require survival in order to be effective, shall survive the termination of these Terms.
12. Applicable Law and Jurisdiction.
The Terms will be construed, and their performance enforced, under the laws of the state of Washington without reference to its conflict of law principles. Regardless of where you access the Site or from where you download the Point2Go™ Apps, you agree that any dispute relating to the Terms, the Site or the Point2Go™ Apps may be litigated only in a court having jurisdiction and venue in the state of Washington. EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THE TERMS, THE POINT2GO™ APPS AND USE OF THE SITE.
13. Notices and Communications.
13.1 When you use the Site and/or the Point2Go™ App sor send emails to Point2Go™, you are communicating with Point2Go™ electronically. Point2Go™ will communicate with you by email, by text messages, by phone or by posting notices on the Site and/or the Point2Go™ Apps. You consent to receive notices and communications from Point2Go™ electronically and agree that all notices and communications that Point2Go™ provides you electronically satisfy any legal requirement that such communications are in writing, unless mandatory applicable laws specifically require a different form of communication.
13.2 All notices that you are required or desire to give to Point2Go™ must be delivered in writing by e-mail to point2go@cdsus.com.
14. General.
14.1 A failure by Point2Go™ to enforce any right or provision of the Terms will not constitute a waiver by Point2Go™ of future enforcement of that right or provision or any other right or provision.
14.2 If any provision of the Terms is held to be invalid or unenforceable, that provision will be inoperative only to the extent necessary and will be severed from the remainder of the Terms. The rest of the Terms will remain in full force and effect.
14.3 Except as specifically stated, no third party will have any rights under, or be able to enforce, the Terms.
14.4 You must not assign or transfer any of your rights or obligations under the Terms, in whole or in part, by operation of law or otherwise, without the prior written approval of Point2Go™. You must enter into any documents required by Point2Go™ to effectuate an assignment or transfer by Point2Go™ of its rights and obligations under the Terms.
14.5 The Terms do not create any affiliate relationship, partnership, joint venture, employment relationship, agency, or fiduciary or other special relationship between you and Point2Go™. Except as expressly stated in the Terms, neither party has the authority to act or purport to act as the other party's agent or representative for any purpose.
14.6 The Terms, the Privacy Policy and, as to users of the Merchant App, the Merchant Subscription Agreement, constitute the entire and complete legal agreement between you and Point2Go™ regarding its subject matter, and completely replaces any prior or contemporaneous agreements or understanding, written or oral, between you and Point2Go™ regarding its subject matter. Each party acknowledges that it has not relied on any oral or written representations made to it (whether made negligently or innocently) other than as expressly set out in the Terms. Nothing in this Section 14.6 will limit or exclude your liability for fraud.