Last Updated: January 28, 2018
Effective Date: March 1, 2018
We reserve the right, at our sole discretion, to change or modify portions of these Terms at any time without further notice. If we change these Terms in a material way, we will provide appropriate notice to you, and, for any change, will indicate the date of revision at the top of this page. Your continued use of the Service after any such changes constitutes your acceptance of the new Terms. If you do not agree to abide by these or any future Terms, please stop using and accessing the Service.
These Terms contain a mandatory arbitration provision that requires that disputes be resolved in individual arbitration or small claims court proceedings.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your account, if any, and are fully responsible for any and all activities that occur under your account. You agree to (a) immediately notify Fivestars of any unauthorized use of your account or any other breach of security, and (b) ensure that you log out of your account at the end of each session. Fivestars will not be liable for any loss or damage arising from your failure to comply with these requirements.
Modifications to Service: Fivestars reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Fivestars shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
Rewards: All Rewards made available in connection with the Service are promotional only. Such Rewards are made available directly by the relevant merchant providing such Reward (“Rewards Provider”) (and not Fivestars) and are redeemable solely for the applicable goods or services of the relevant Rewards Provider. The Rewards Provider, not Fivestars, is the provider of the Rewards and such goods and services and is solely responsible for redeeming any Rewards you obtain. Fivestars will have no liability if a Rewards Provider refuses or fails to honor any Reward. In addition, the following terms and conditions also apply to all Rewards:
Third-Party Services: You may register for the Service using third-party services (e.g., Facebook Login) and otherwise enable various third-party services to be directly integrated into your Fivestars experience. By enabling third-party services within the Service, you are allowing us to pass your log-in information or other information (e.g., token authentication information) to these services for this purpose. Please remember that the manner in which third-party services use, store and disclose your information is governed solely by the policies of such third parties, and Fivestars shall have no liability or responsibility for the privacy practices or other actions of any third-party site or service. In addition, Fivestars is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with third-party services, and such third-party services may revoke authentication at any time. As such, Fivestars is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party service. Fivestars enables these features merely as a convenience and the inclusion of such features does not imply an endorsement or recommendation.
Mobile Services: The Service includes certain services that are available via a mobile device, including the ability to upload content to the Service and the ability to browse and otherwise access the Service or certain features thereof. To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. By using the Mobile Services, you agree that we and Rewards Providers may communicate with you by automated SMS, MMS, text message or other electronic means to your mobile device and that information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Fivestars account information.
Conditions of Use
User Conduct: You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (“content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such content originated. This means that you, and not Fivestars, are entirely responsible for all content that you upload, post, email or otherwise transmit via the Service, and for all activities and events that you facilitate via the Service.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or transmit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use and may not be used for direct commercial endeavors.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content (“Service Content”) that is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Fivestars, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service, if any. In connection with your use of the Service, you shall not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Site or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying or related to the Service is the property of Fivestars, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Fivestars.
The Fivestars name and logo are trademarks and service marks of Fivestars (collectively the “Fivestars Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Fivestars. Nothing in this Terms or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Fivestars Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Fivestars Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will Fivestars be liable in any way for any content posted by third parties (including Rewards Providers) or at the direction of users, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any content posted, emailed or otherwise transmitted via the Service. You acknowledge that Fivestars does not pre-screen content, but that Fivestars and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service.
User Content Posted on the Site or the Service: You are solely responsible for the content and other materials you post on or through the Service or transmit to or share with other users or recipients, whether as an end user or otherwise (collectively, “User Content”), if any. You will not post any content that you did not create or that you do not own all right, title and interest in and to, including, without limitation, all copyright and rights of publicity contained therein. By posting any User Content you hereby grant and will grant Fivestars and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid, transferable, sub-licensable, perpetual, irrevocable license to copy, display, transmit, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Service (“Submissions”), provided by you to Fivestars are non-confidential and Fivestars shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Copyright Complaints: The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any Content made available in connection with the Service infringes your copyright, you (or your agent) may send Fivestars a notice requesting that the Content be removed, or access to it blocked. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA (see http://www.loc.gov/copyright for details). Notices and counter notices with respect to the Service should be sent to Fivestars at:
Fivestars Loyalty, Inc.
500 Third Street Suite 405,
San Francisco, CA 94107
By Email: firstname.lastname@example.org
Third Party Applications
The Services may be available or accessed in connection with Fivestars applications (“Applications”) made available through third party providers such as Apple, Inc., or Google, Inc. (“Provider”) through their storefronts such as the App Store and Google Play.
Fivestars and you acknowledge and agree that Provider, and Provider’s subsidiaries, are third party beneficiaries of these Terms with respect to the Applications made available through Provider, and that, upon your acceptance of the terms and conditions of these Terms, Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms against you with respect to the Applications as a third party beneficiary thereof.
Third Party Websites
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet (including Rewards Provider websites). Fivestars has no control over such sites and resources and Fivestars is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Fivestars shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties (including Rewards Providers) while using the Service are between you and the third party, and you agree that Fivestars is not liable for any loss or claim that you may have against any such third party.
Indemnity and Release
You agree to release, indemnify and hold Fivestars and its affiliates and their officers, employees, directors and agents harmless from and against any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Fivestars EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Fivestars MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT Fivestars SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Fivestars HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, MESSAGES RECEIVED, OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT SHALL Fivestars’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID Fivestars IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
Arbitration and Class Waiver
Any dispute or claim relating in any way to your use of the Services, other than a court action to enjoin infringement or other misuse of intellectual property rights, (“Covered Disputes”) will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms as a court would.
The arbitration will be conducted by JAMS under its rules, including the JAMS Consumer Minimum Standards. JAMS’s rules are available at www.jamsadr.com or by calling 1-800-352-5267. Payment of all filing, administration and arbitrator fees will be governed by the JAMS rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial.
This arbitration and class waiver agreement not only applies to Covered Disputes between you and Fivestars, but also to Covered Disputes between you and Reward Providers, other merchants who participate in Fivestars loyalty programs, or vendors who perform services for Fivestars.
Choice of Law
Except as provided above in the Arbitration and Class Waiver section, these Terms will be governed by the laws of California without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret this Agreement and does not create any other substantive right to non-Californians to assert claims under California law whether by statute, common law, or otherwise.
You agree that Fivestars, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service for any reason, including, without limitation, for lack of use or if Fivestars believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive or illegal activity may be grounds for termination of your use of Service and may be referred to appropriate law enforcement authorities. Fivestars may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms may be effected without prior notice, and acknowledge and agree that Fivestars may immediately deactivate or delete your account and all of your related Rewards. Further, you agree that Fivestars shall not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user, Rewards Provider or third party in connection with the Service (or any third-party service with which the Service is integrated), and Fivestars will have no liability or responsibility with respect thereto. Fivestars reserves the right, but has no obligation, to become involved in any way with disputes between you and any Rewards Provider or other third party in connection with the Service (or any third-party service with which the Service is integrated). In addition, without limiting the foregoing, Fivestars will have no liability or responsibility for any acts or omissions of Rewards Providers with respect to their use of any of your information or your interactions with them.
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