SPREEBIRD™ Terms of ServiceLast Updated: October, 2011
1. THIS IS AN AGREEMENT BETWEEN YOU AND SPREEBIRD
SPREEBIRD (“SPREEBIRD”, “we”, “us” or “our”) offers this Site (as defined below) to you (“you”, “your” or the “End User”) conditioned on your acceptance, without modification of this Agreement. Your use of the Site constitutes your acceptance of this Agreement and of our Privacy Policy, published at http://www.spreebird.com/privacy and incorporated herein by reference. Please refrain from using the Site if you do not wish to agree to these terms of service (the “Terms of Service” or “Agreement).
2. GENERAL
The SPREEBIRD websites (located at http://www.spreebird.com and http://www.screamindailydeals.com), its mobile applications, products and services (each, a “Site”) is an interactive online service operated by us on the Internet that consists of information services, social networking, content and transaction capabilities, and other services. Specifically, and in addition to the other capabilities of this Site, SPREEBIRD provides End Users with the opportunity to review and purchase two types of deals:
a. SPREEBIRD Deals: “SPREEBIRD Deals” are offers published on our Site for End Users to purchase Vouchers (as defined in Section 6(b)) for discounted goods and services from merchants with whom SPREEBIRD has direct advertising relationships (each a “Merchant.”) End Users purchase Vouchers for SPREEBIRD Deals on our Site. End Users’ use of Vouchers purchased on SPREEBIRD is subject to the Terms of Service contained herein. The details regarding SPREEBIRD Deals are set forth in greater detail in Section 6 below.
b. Third Party Deals: “Third Party Deals” are offers published on our Site for End Users to purchase vouchers for discounted goods and services from merchants with whom third party deal providers, not SPREEBIRD, have direct advertising relationships. End Users purchase vouchers for Third Party Deals on third party sites, not SPREEBIRD. We publish Third Party Deals on our Site, but upon clicking Third Party Deal links on our Site, End Users are redirected to third party sites to complete their voucher purchases. End Users’ use of vouchers purchased on third party sites is subject to the terms and conditions of use imposed by those third party sites. The details regarding Third Party Deals are set forth in greater detail in Section 7 below.
Please see Sections 6 and 7 of this Agreement for more information on SPREEBIRD Deals and Third Party Deals respectively.
This Agreement sets forth the terms of service that apply to the use of this Site by you, or any other End User. Your right to use this Site is personal to you and is not transferable to any other person or entity. You acknowledge that while the Internet is often secure, there may be interruptions in service or events that are beyond our control, and that we are not responsible for any data lost while transmitting information on the Internet. The Site may also be inaccessible at times for any reason, including, without limitation, routine maintenance. This Site may also be interrupted, suspended, or even terminated from time to time. See Section 9 for more information on discontinuation of this Site.
You represent that you are not a direct competitor of SPREEBIRD, have not been formerly suspended by SPREEBIRD or removed from the Site, have no more than one SPREEBIRD account at any given time, and are of legal age and power to form a binding contract. You must be at least 18 years of age to be eligible to use the Site. However, if you are at least 13 years of age, but not yet 18, you may use the Site if you are accompanied by your parent or guardian who agrees to these Terms of Service. No one under age 13 may use the Site.
3. MODIFICATION
Our Site may change from time to time. These changes may include but are not limited to our discontinuation of aspects or features of the Site, including, but not limited to the content of the Site, the availability of the services offered on the Site or those of third party sites that we link to, or the equipment needed to access the Site. We may change or eliminate any transmission method or change transmission speeds or other signal characteristics, or add certain fees or charges.
Our Terms of Service may also change from time to time, and those changes will be available for your review on most pages of our Site that you view, and on our web page located at http://www.spreebird.com/terms. Your continued use of our Site after any such changes have been made will signify your assent to the changed Terms of Service. If you do not accept these changes to the Terms of Service, do not continue to use the Site.
These Terms of Service may also be translated to other languages for your convenience. Whether this is or is not the case, the English version governs your relationship with SPREEBIRD, and any inconsistencies to be found among other versions will be resolved in favor of the English version.
If we make any material changes to the Site or to these Terms of Service that affect the way any of your Personal Information is handled or distributed by us or our affiliates, we will notify you by sending an email to the email address you have registered with your account and such material changes to this Agreement or to the Site will be effective upon the distribution of such email notice to the email address that you previously provided to us. Please note that changes, material or otherwise, will not apply to Vouchers (as defined below) purchased prior to the effective date of those changes.
4. EQUIPMENT
You shall be responsible for obtaining and maintaining any equipment necessary to access and use the Site and all charges related thereto. SPREEBIRD shall not be liable for any damages to your or any End User’s equipment resulting from use of the Site, including any services provided on the Site.
5. USER ACCOUNTS
In order to use some of the features on the Site, you will need to create an account and provide information about yourself. You are responsible for all activities that occur in relation with your account. You are responsible for keeping your account password confidential. You agree to notify us immediately if there is any unauthorized use of your account. SPREEBIRD reserves the right to have your account closed at any time for any reason or no reason. Your account is for your non-commercial, personal use only. By creating an account, SPREEBIRD requests that you provide complete and accurate information about yourself in order to bolster your credibility as a contributor to the Site. You may not impersonate someone else, provide an email address other than your own, create multiple accounts, or create an account for anyone other than yourself. Additionally, as a stipulation of your purchase of any Vouchers (as defined below), SPREEBIRD requires your permission to send you administrative and promotional communications. We will send you information regarding your account activity and purchases of any Vouchers, as well as updates about our products and promotional offers. Please see our Privacy Policy at http://www.spreebird.com/privacy for more information on our collection and use of your information and on your ability to unsubscribe from receiving communications from SPREEBIRD in the future.
6. SPREEBIRD DEALS
SPREEBIRD publishes SPREEBIRD Deals that allow its End Users to review and purchase Vouchers for discounted goods and services from our participating Merchants. By placing an order for a SPREEBIRD Deal Voucher, you make an offer to purchase the selected SPREEBIRD Deal on the terms and conditions of sale stated below. You are required to create an account to purchase any SPREEBIRD Deal. This account will enable you to print Vouchers you have purchased for SPREEBIRD Deals, view your history of purchases, update your account information, and ensure permissible use of the SPREEBIRD Deals. For more information regarding our collection of information, please view our Privacy Policy at http://www.spreebird.com/privacy.
a. Purchase Process. Once you have placed your order to purchase a Voucher for a SPREEBIRD Deal, you will receive an order confirmation and your credit card will be charged for the amount of the SPREEBIRD Deal. You will be notified via email when the Voucher for the SPREEBIRD Deal is ready to be used.
b. Vouchers
i. General. Any SPREEBIRD Deal is comprised of two separate portions that make up the Voucher. The first is a paid portion equal to the amount your credit card is charged, and is similar to a gift certificate (the “Paid Portion”). You receive the second part of the deal at no additional charge for the balance of the SPREEBIRD Deal if you use the SPREEBIRD Deal according to its terms, including any promotional expiration dates of the Voucher (the “Promotional Portion”). The Promotional Portion and Paid Portion combine to create a “Voucher”.
ii. Balances. Generally, Vouchers are redeemable in their entirety and on a one-time basis only and may not be redeemed incrementally, unless otherwise required by applicable law. In the event applicable law permits you to redeem your Voucher for less than the full amount stated on the Voucher (the Paid Portion plus the Promotional Portion), your purchase from the Merchant will be allocated first against the Paid Portion until there is a balance of zero dollars ($0.00) and then against the Promotional Portion that remains.
iii. Expiration Dates. The expiration date of any Voucher is printed on the Voucher. Please note that the expiration date printed on the Voucher dictates the last date that you can use the Voucher at the Merchant for the terms of the SPREEBIRD Deal. However, according to applicable law in some jurisdictions, Merchants may be responsible for allowing you to redeem Vouchers for the Paid Portion of such Voucher for a period of time that extends beyond the expiration date on the Voucher. As a result, in such jurisdictions, the Paid Portion of the Voucher will expire five (5) years from the date the Voucher is issued to you, except to the extent that applicable law requires that Merchant extend the period in which the Voucher may be redeemed. The Merchant should redeem such Voucher for the Paid Portion and we have instructed the Merchant to do so. If the Merchant has refused to redeem the Paid Portion of your expired Voucher, and if applicable law entitles you to redemption, please contact SPREEBIRD at [email protected] and include a brief explanation of your situation. Such explanation shall include the identification of the Voucher and the Merchant with whom you sought to redeem the Voucher, a summary of the circumstances surrounding Merchant’s refusal of redemption of the Voucher, and a statement under perjury of law that the Voucher has never been redeemed with the Merchant. If the above information is sufficiently provided, SPREEBIRD will then refund the Paid Portion of the Voucher in U.S. dollars.
c. General SPREEBIRD Deal Terms. Unless otherwise stated on a Voucher or required by law, the following terms apply to all Vouchers:
i. Neither SPREEBIRD nor the Merchant is responsible for lost or stolen Vouchers or Voucher reference numbers. ii. A Voucher cannot be combined with any other vouchers, coupons, third party certificates, or promotions unless otherwise specified or permitted by Merchant. iii. Limit one (1) Voucher per redemption. Only one Voucher can be used per order unless otherwise specified by Merchant. iv. Vouchers cannot be used for taxes, tips, prior balances, or shipping and handling v. Duplicate use, sale or trade of Vouchers is prohibited, except as required by law
d. Restaurant-Specific SPREEBIRD Deal Terms. “Restaurants” are defined as Merchants that offer food or beverages for sale as part of their regular business operations, and agree to make such food and beverages available to purchasers of Vouchers.
i. The frequency of redemption for any Vouchers shall be determined by the Restaurant as stated on the Voucher or as set forth on the Site ii. Use of a Voucher for alcoholic beverages is at the Merchant’s sole discretion (and is subject to compliance with applicable law). Compliance with state statutes or codes is the responsibility of the Merchant. SPREEBIRD’s sole role in the transaction is as a marketing agent for the Voucher and the applicability and compliance with any relevant statute or code is solely determined and consummated by the Merchant, and SPREEBIRD has no role in such determination or action on the part of the Merchant. iii. Vouchers are valid for dine-in only unless otherwise stated iv. The issuance of a restaurant credit is at the sole discretion of the Restaurant unless otherwise required by law v. Void to the extent prohibited by law
e. SPREEBIRD Deal-Specific Terms. Each SPREEBIRD Deal has specific terms associated with the deal. Such specific terms will be presented to you when you commit to purchase the SPREEBIRD Deal. These deal-specific terms shall supersede terms contained in this Agreement, unless such terms are prohibited by applicable law.
f. Vouchers for Specific Ticketed Events and Venues. A Voucher redeemable for admission to a specific ticketed event and venue has no value once the event date and time has passed. Vouchers for live entertainment or other ticketed events are refundable only on the date or dates the applicable event is taking place at the venue noted on the Voucher unless the event is cancelled and not rescheduled by the venue or Merchant. Vouchers for live entertainment or other ticketed events are sold inclusive of all taxes and additional fees unless otherwise noted and cannot be combined with other offers or deals. Vouchers for live entertainment or other ticketed events do not include any applicable gratuity. Vouchers for live entertainment or other ticketed events are not eligible for upgrades and are not transferable.
g. Merchant Responsibility. Please be aware that the Merchant, and not SPREEBIRD, is the seller of the SPREEBIRD Deal, and such Merchant is solely responsible for redeeming any Voucher you purchase through our Site. We provide such SPREEBIRD Deals in connection with your purchase of the Merchant’s goods or services. Merchant is responsible for any and all illnesses, injuries, damages, claims, liabilities and costs suffered by or with respect to a customer, caused in whole or in part by the Merchant and its products or services, as well as for any unclaimed property liability arising from unredeemed or partially redeemed Vouchers. The applicability and compliance with any relevant statute or code is solely determined by and consummated by the Merchant, and SPREEBIRD has no role in such determination or action on the part of the Merchant. Whether you choose to print and/or redeem a Voucher is within your sole control and at your sole discretion.
h. Refunds. SPREEBIRD will provide you with a refund of the Paid Portion for any SPREEBIRD Deal within ninety (90) days after the purchase of a Voucher, provided that the Voucher has not been redeemed. After ninety days, SPREEBIRD does not provide refunds for SPREEBIRD Deals except that we will provide a refund in the instance that you are unable to redeem a Voucher from the applicable Merchant before the expiration of the Voucher as the result of the Merchant going out of business.
i. Limited Quantities. Some SPREEBIRD Deals on SPREEBIRD will be provided for a limited number of purchasers. Details regarding limited quantities will be posted with the SPREEBIRD Deal. Any End User who purchases more than the permitted number of Vouchers by using multiple accounts, different credit cards, identities, registrations, or any other method will void that End User’s purchases. SPREEBIRD will be the sole arbiter of whether any End User’s actions violate the terms posted under any SPREEBIRD Deal.
7. THIRD PARTY DEALS
a. General. From time to time, our Site may contain materials or services, including links to Third Party Deals, which are not owned, operated or controlled by us. We do not investigate, represent or endorse the accuracy, legality, legitimacy, validity, or reliability of any products, services, Third Party Deals, vouchers, coupons or other promotions or associated materials, including advice, ratings and recommendations contained on, distributed through, or linked, downloaded, or accessed from third party websites. SPREEBIRD does not make any representations regarding the availability and performance of any third party websites. We reserve the right to disable links to or from third-party site to our Site at our sole discretion, although we are under no obligation to do so.
b. Third Party Interaction. Your correspondence or business dealing with or participation in Third Party Deals found outside of the Site, including payment and delivery of related vouchers, deals, goods or services, or any other terms, conditions and warranties or representations associated with Third Party Deals, are solely between you and such advertisers or third party service providers. You assume all risks arising out of or resulting from your transaction of business over the Internet, and you agree that SPREEBIRD is not responsible or liable for any loss or result of the presence of information about or links to such third party advertisers or service providers to the Site. You acknowledge and agree that SPREEBIRD is not responsible or liable for the availability, accuracy, copyright compliance, legality, decency, or any other aspect of the content, advertising, products, Third Party Deals, services, or other materials on or available from such third party sites or resources. You acknowledge and agree that your use of these third party linked sites is subject to different terms of use than these Terms of Service, and may be subject to different privacy practices than those set forth in our Privacy Policy. Some external links may produce information that some people find objectionable, inappropriate or offensive. We are not responsible for the accuracy, relevancy, copyright compliance, legality, or decency of material contained in any externally linked websites.
8. END USER CONDUCT
This Site and the content within it is private property. All interactions on this Site must comply with this Agreement. Certain services on our Site may permit you to use your account to submit user-generated content, including but not limited to, commentary, postings on message boards, data, text, links, graphics, photographs, graphics, images, video, communication, messages or other materials and terms of expression (collectively, “User-Generated Content”). You agree that you will only post User-Generated Content which you are legally entitled to publish (whether through your ownership or valid license), and will only include reviews that you believe to be true, and that you will not purposely provide false or misleading information in your reviews.
SPREEBIRD reserves the right in its sole and absolute discretion to promulgate such additional rules and policies which it deems necessary or appropriate to govern the posting or submission of materials on or through the Site. We reserve the right, but have no obligation, to monitor disputes between you and any business that you have reviewed. We reserve the right in our sole discretion and without obligation to monitor all User-Generated Content to ensure conformity with this Agreement and any other rules, policies or regulations as may be promulgated by us from time to time it our sole discretion, as well as any applicable laws, rules and regulations of any government having proper jurisdiction over us. We have the right, but not the obligation, to refuse to post, edit, delete, truncate or to remove any User-Generated Content for any reason, including if the User-Generated Content contains any of the following:
a. Offensive, harmful and/or abusive language, including without limitation: expletives, profanities, obscenities, harassment, vulgarities, sexually explicit language and hate speech (e.g., racist/discriminatory speech)
b. References to illegal activity, malpractice, purposeful overcharging, false advertising or health code violations (e.g., food poisoning, foreign objects in food, etc.)
c. Reviews submitted by the reviewed business' employees (past or present) or competitors, as determined by SPREEBIRD
d. Reviews that do not address the goods and services of the business or Reviews with no qualitative value (e.g., "this place is great!"), as determined by SPREEBIRD in its sole discretion.
e. Content commenting on other users or violating the privacy of other users, as determined by SPREEBIRD, in its sole discretion
f. Content that contains personal attacks or describes physical confrontations and/or sexual harassment
g. References to excessive damage caused by business or service to person or property
h. Personal information or messages including, without limitation, email addresses, URLs, phone numbers and postal addresses
i. Messages that are advertising or commercial in nature, amount to spam, or are otherwise inappropriate based on the applicable subject matter
j. Language that violates the standards of good taste or the standards of this website, as determined by us in our sole discretion
k. Content determined by SPREEBIRD to be offensive, illegal, or to violate any federal, state, or local law or regulation or the rights of any other person or entity
l. Language intended to impersonate other users (including names of other individuals) or offensive or inappropriate user names or signatures
m. Content that is not in English, that is encrypted or that contains viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept or appropriate any system, data or personal information
n. Content that otherwise violates these Terms of Service, or any Site-Specific Rules, or that may harm or threaten the safety of other users of the Site
o. Content that is false or intentionally misleading
p. Content that advertises or performs any commercial, religious, political, or non-commercial solicitation, including, but not limited to, the solicitation of End Users of this Site to become users of other on or offline services directly or indirectly competitive with SPREEBIRD
Nothing set forth above shall alter or diminish your responsibility with respect to your User-Generated Content, as discussed herein.
SPREEBIRD, similar to an Internet Service Provider, is a distributor (and not a publisher) of User-Generated Content. Any user-generated reviews, opinions, advice, or statements do not reflect the views of SPREEBIRD or any of our affiliated companies or any of their respective employees, officers, directors, or shareholders. SPREEBIRD, and its affiliates, parent companies, officers, directors, employees, agents, or assigns does not assume responsibility or liability for any review or for any claims, damages, or losses resulting from any use or reliance on a review. You acknowledge and agree that, with respect to any conduct within the Site, SPREEBIRD assumes and shall have no liability for any action or failure to act on the part of SPREEBIRD. The foregoing provisions of this Section 8 apply equally to and are for the benefit of SPREEBIRD, its affiliates, Merchants, and its third-party content providers and licensors, and each shall have the right to assert and enforce such provisions directly or on its own behalf.
BY USING OUR SITE, YOU AGREE THAT YOU WILL NOT SUBMIT ANY CONFIDENTIAL INFORMATION OR MATERIALS TO OR THROUGH THE SERVICES OFFERED BY SPREEBIRD. SPREEBIRD CANNOT AND DOES NOT AGREE TO INDENTIFY ANY USER-GENERATED CONTENT YOU SUBMIT IN PUBLIC FORUMS ON THE SITE AS CONFIDENTIAL.
9. DISCONTINUATION
SPREEBIRD may modify or discontinue the Site or any of the services we offer on the Site, including any links to third party sites, at any time without prior notice. In addition, this Agreement will automatically terminate in the event that you violate any of the terms provided herein. If such termination or discontinuation occurs, you will immediately stop all use of the Site. Any Voucher issued prior to termination will be honored by the Merchant pursuant to its terms and the terms of this Agreement. Sections 4, 5, 6, 7, 8 and 10-15 shall survive termination of this Agreement.
10. INTELLECTUAL PROPERTY
SPREEBIRD is a trademark of Local.com Corporation. All rights with respect to this trademark are hereby expressly reserved. Unless otherwise indicated, all other trademarks appearing on the Site are the property of their respective owners.
Everything located on or in this Site is the exclusive property of SPREEBIRD or is used with express permission of the copyright and/or trademark owner. ANY COPYING, DISTRIBUTING, TRANSMITTING, POSTING, LINKING, DEEP LINKING, OR OTHERWISE MODIFYING OF THIS SITE OR ANY SITES ASSOCIATED HEREIN WITHOUT THE EXPRESS WRITTEN PERMISSION OF SPREEBIRD IS STRICTLY PROHIBITED. Any violation of this Agreement may result in a copyright, trademark or other intellectual property right infringement that may subject an End User to civil and/or criminal penalties.
This Site may contain copyrighted material, trademarks, and other proprietary information, including but not limited to text, software, photos, video, graphics, music and sound, and the entire contents of the Site are protected by copyright as a collective work under the United States copyright laws. SPREEBIRD owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as its original content. End User may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part. You may download, print, and/or save copyrighted material for your personal use only. Except as otherwise expressly stated under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material without the express permission of SPREEBIRD or the copyright owner is permitted. If copying, redistribution, or publication of copyrighted material is permitted, no changes or deletion or author attribution, trademark legend or copyright notice shall be made. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material. Trademarks that are located within or in the Site otherwise owned or operated in conjunction with SPREEBIRD shall not be deemed to be in the public domain but rather the exclusive property of SPREEBIRD, unless such site is under license from the trademark owner thereof, in which case such license is for the exclusive benefit and use of SPREEBIRD unless otherwise stated.
SPREEBIRD respects the intellectual property of others, and asks its End Users, advertisers, licensors and service providers to do the same. If you believe that your work has been copied and is accessible on or through the Site in a way that constitutes copyright infringement, go to the SPREEBIRD Copyright Infringement Claims Policy at http://www.spreebird.com/copyright for instructions on how to report copyright infringement to SPREEBIRD.
11. MONITORING
SPREEBIRD shall have the right, but not the obligation, to monitor the content of the Site, including third-party or User-Generated Content or Communications provided in any chat rooms or other public forums on the Site. We perform such functions to comply with applicable law, regulations or governmental request. We may remove any material that we, in our sole discretion, deem to be in violation of the terms of this Agreement.
12. PRIVACY & LICENSE
You acknowledge that all User-Generated Content that you provide on our Site is available to the general public. As a result, others may read such User-Generated Content without your knowledge or permission. We do not control or endorse any content, User-Generated Content or messages concerning the public user forums on our Site and specifically disclaim all liability concerning such User-Generated Content and any actions or communications that result from your participation on our Site. If certain web pages within our Site are confidential, we will inform you on such web pages.
You hereby grant SPREEBIRD the right to use such User-Generated Content that you provide for promotions, marketing, advertising, market research or any other lawful purpose without limitation. More information regarding our use of your personally identifiable and non-personally identifiable information can be found in our Privacy Policy, available at http://www.spreebird.com/privacy. By posting your User-Generated Content on or through our Site, you hereby grant us a royalty-free, perpetual, irrevocable, non-exclusive license to use reproduce, modify, publish, edit, translate, distribute, perform, and display the User-Generated Content alone or as part of other works in any form, media, or technology whether now known or hereafter created without limitation, and to sublicense such rights.
13. DISCLAIMER OF WARRANTY
END USER EXPRESSLY AGREES THAT THE USE OF THIS SITE IS AT END USER’S SOLE RISK. NEITHER SPREEBIRD, ITS AFFILIATES, PARENTS, NOR ANY OF ITS OR THEIR RESPECTIVE EMPLOYEES, AGENTS, MERCHANTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WARRANT THAT USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES IT OR THEY MAKE ANY WARRANTY AS TO (I) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, OR (II) THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR VOUCHERS PROVIDED THROUGH THE SITE OR ANY THIRD-PARTY SITES.
THIS SITE IS MADE ACCESSIBLE ON AN “AS-IS” AND “AS AVAILABLE” BASIS. SPREEBIRD HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
14. LIMITATION OF LIABILITY
END USER’S SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH SPREEBIRD IS TO DISCONTINUE USE OF SPREEBIRD, INCLUDING THE SITE. IN NO EVENT SHALL OUR LIABILITY, OR THE LIABILITY OF OUR AFFILIATES, PARENTS, OFFICERS, DIRECTORS, AGENTS, VENDORS, OR MERCHANTS, FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SITE EXCEED THE TOTAL AMOUNT OF FEES THAT YOU PAID US DURING THE PREVIOUS ONE-YEAR PERIOD FOR THE SPECIFIC SERVICE AT ISSUE. WE, OUR AFFILIATES, PARENTS, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, AND MERCHANTS, SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, INABILITY TO USE, OR RELIANCE UPON THE SITE. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IF ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTION, OUR LIABILITY, AND THE LIABILITY OF OUR AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND MERCHANTS, SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
15. INDEMNIFICATION & RELEASE
You agree to release, indemnify, defend and hold harmless SPREEBIRD, its parent, subsidiaries and affiliates, and its and their shareholders, officers, directors, employees, agents and advisors, from and against any and all losses, liabilities, claims (including claims without legal merit or brought in bad faith), demands, damages, costs or expenses, causes of action, suits, proceedings, judgments, awards, executions and liens, including reasonable attorneys' fees and costs (whether brought by third parties or otherwise) (collectively, "Claims") due to or arising out of or related to: (i) any products or services you purchase in connection with the Site; (ii) your violation of any of the terms of this Agreement; (iii) your violation of any third party right, including without limitation, any copyright, property right, or privacy right; (iv) any claim that any User-Generated Content submitted by you causes any damage to any third party; or (v) any damages or causes of action arising out of your use of third party sites that link to our Site, including but not limited to those sites containing Third Party Deals.
You are solely responsible for any interaction with Merchants and other users of the Site. To the extent permitted by applicable law, you hereby release SPREEBIRD from any and all claims or liability related to any product or service of Merchant, any action or inaction by Merchant, including Merchant’s failure to comply with applicable law and/or its failure to abide by the terms of any SPREEBIRD Deal or Voucher, and any conduct or speech, whether online or offline, of any other user. Additionally, you acknowledge that some SPREEBIRD Deals may involve activities that could potentially cause bodily harm, illness, or death. SPREEBIRD bears no responsibility for the service or activity being offered or for any injuries that occur as a result. Please see the Sections 14 and the other terms of this Section 15 for further detail on our limitation of liability and disclaimer regarding the SPREEBIRD Deals.
You hereby waive and relinquish all rights you may have under California Civil Code Section 1542 (and similar provisions in any applicable jurisdiction) which states, “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 debtor.” You understand that the facts under which the foregoing release under California Civil Code Section 1542 (or similar provisions in other applicable jurisdictions) is provided may turn out to be different from the facts known to you to be true, and you expressly assume the risk of the facts turning out to be different and agree that the foregoing release shall be in all respects, effective and not subject to termination or rescission by reason of any difference of facts.
16. ARBITRATION
By using our Site, you agree that: (1) any claim, dispute or controversy you may have against SPREEBIRD arising out of, or relating to these Terms of Service, this Site, or the purchase or sale of any Voucher, shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable rules and procedures established by AAA (“Rules and Procedures”); (2) the arbitration shall be held at a location determined by AAA pursuant to its Rules and Procedures, or at such other location as may be mutually agreed upon by you and SPREEBIRD; (3) the arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law; (4) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your and SPREEBIRD’s individual claims; and the arbitrator may not consolidate or join the claims of other persons or entities who may be similarly situated; (5) in the event that you are able to demonstrate that the costs of the arbitration are prohibitive as compared to the costs of litigation, SPREEBIRD shall pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (6) with the exception of part (4) above, if any part of this arbitration provision is deemed invalid, unenforceable or illegal, or otherwise conflicts with the AAA Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable or illegal conflicting provision were not contained therein. If however, part (4) above us found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor SPREEBIRD shall be entitled to arbitrate their dispute.
17. LIMITED TIME TO BRING ANY CLAIM
YOU AND SPREEBIRD AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO SPREEBIRD MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
18. MISCELLANEOUS
This Agreement, our Privacy Policy, available at http://www.spreebird.com/privacy, and any operating rules for SPREEBIRD established by SPREEBIRD, shall constitute the entire agreement between SPREEBIRD and any End Users with respect to the subject matter hereof. No waiver by either party of any breach or default hereunder, including on the Site, by telephone or email, is a waiver of any preceding or subsequent breach or default. The section headings used in this Agreement are for convenience only and shall have no legal force or effect. You and we are general contractors, and nothing in this Agreement creates a partnership, employment relationship or agency. There are no third party beneficiaries to this Agreement. You may not assign this Agreement or your rights and obligations hereunder, in whole or in part, to any third party without our prior written consent, and any attempt by you to do so will be invalid. If any provisions of these Terms of Service are held invalid by a court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions contained herein, and the remaining portions of this Agreement shall continue in full force and effect. The failure of either party to exercise any of its rights under these Terms of Service shall not be deemed a waiver or forfeiture of such rights or any other rights provided hereunder. Our rights under this Agreement will survive any termination of this Agreement.
|
|
