Last Updated: November 4, 2015
SPLENDERSM ONLINE SHOPPING REWARDS PROGRAM
By registering for the SplenderSM online shopping rewards program (the “Program”), by using the Program website, or by linking to the participating store network and/or shopping with participating stores using links found on www.splender.com (collectively, the “Network”), you acknowledge that you have read and understood these terms and conditions (the “Agreement”) and that you are able and legally competent to agree to be bound by all of the terms of this Agreement.
This Agreement constitutes a legally binding agreement between Cartera Commerce, Inc. d/b/a Splender, a Delaware corporation (“Cartera”), and its affiliates (collectively, “we” or “us”), and each individual (“you” or the “Member”) who registers with the Program, all as more fully described below.
We may change this Agreement from time to time, so please check back periodically. We may ask you to affirmatively accept changes to this Agreement; provided, however, that you acknowledge and agree that any modifications or amendments will be effective from the time we post them to this website, and your continued use of the Program, access and use of this website, and/or participation in the Network each shall be deemed to be your continuing acceptance of this Agreement. We recommend that you print out a copy of this Agreement for your records.
1. Enrollment; Member Information. As a condition to using the Program, you represent that you are a person of legal age in the state in which you live (generally at least 18 to 21 years old, depending on the laws and regulations of your state of residence) and are a legal resident of the United States or its territories. We may ask you to provide us with (a) certain information as a condition to your participation in the Program, initially first name, last name, email address, password, and all required details for your selected payment option, and (b) additional optional demographic information that will allow us to better personalize your shopping experience to make it more rewarding (e.g., gender, birth year, etc.). You agree that it is your responsibility to keep your Member information current, complete and accurate by periodically updating your information for the Program. It is your responsibility to ensure that the information you provide to us is accurate and complete each time you use the Program and will not be false or misleading. You agree that you are responsible for all activity under your Program Account, you accept all risks for any unauthorized use of your Program Account, and you will immediately report if you know or suspect that your Program Account has been hacked or its security breached. We reserve the right to limit enrollment, or to close the Program to new enrollments, at any time in our sole discretion, and enrollment is limited to one Program Account per individual.
2. License. Subject to this Agreement, we hereby grant you a personal, limited, revocable, non-exclusive, non-transferable license (without the right to sublicense) for so long as you participate in the Program and adhere to the terms, conditions, and restrictions set forth in this Agreement, to access, participate in and use the Program and the Network. You may not copy, distribute, publish, transmit, modify, publicly display or perform, create derivative works of, or otherwise exploit all or any part of the Program without our express prior written consent. You agree that you obtain no rights other than the limited rights and licenses expressly granted in this Agreement, and all other rights are expressly reserved to Cartera Commerce, Inc.
3. Membership Fee. We currently do not charge any membership fee for you to participate in the Program. If we institute a membership fee in the future, we will notify you and give you the right to cancel your enrollment in the Program before any fee is imposed. Some of the businesses that participate in the Network by rebating a portion of a Member’s purchases at or with those businesses (each a “Participating Store”) may charge fees with respect to one or more of their offers that are available through the Program. Any such fees will be disclosed in the description of the Participating Store’s offer, and each such Participating Store reserves the right to change such fees or institute new or additional fees in the future.
4. Policies. You agree to comply with this Agreement, and all other policies and rules as set forth in Program and Network materials, including without limitation materials of Participating Stores, whether in print or on the website of the relevant Participating Store (collectively, the “Policies”). The Policies, including any amendments that may be made from time to time, are hereby incorporated by reference into this Agreement. We encourage you to review this Agreement, including the Policies, periodically for any such updates or changes.
PROGRAM MEMBER OBLIGATIONS
5. No Unauthorized Use of the Program or the Network. You agree that you will not, and will not permit others to:
- provide any unauthorized third party with access to the Program or Network or any information, data, text, links, images, software, chat, communications and other content available through the internet and proprietary to the Program (collectively, “Content”) by any means;
- modify, reverse engineer, reverse assemble or decompile any of the software applications used by you in connection with your participation in the Program or use of the Network;
- engage in any activity that does not comply with any applicable U.S. federal laws or regulations or other state or local laws and regulations, or otherwise engage in any illegal, manipulative or misleading activity through the use of the Program or the Network;
- introduce into the Program any code intended to disrupt the Program, alter or delete its Content, access confidential Content on the Program website or interfere with the operation of the Program, including, but not limited to, distribution of unsolicited advertising or mail messages and propagation of computer worms and viruses;
- post any material in any form whatsoever on the Program website or within the Network that is defamatory, obscene or otherwise unlawful or violates any third party’s right of privacy or publicity;
- use the Program or the Network to make purchases for resale or similar; or
- infringe any third party’s patent, copyright, service mark, trademark or other intellectual property right of any kind or misappropriate the trade secrets of any third party in connection with your use of the Program or the Network.
6. Community Standards. By using the Program, you voluntarily are becoming a member of a community which depends on the goodwill and responsible behavior of each of its members. Members are required to refrain from transmission or communication of images or text constituting ethnic slurs, obscenities, sexually explicit material, inflammatory or derogatory comments, or anything else that may be construed as harassing or offensive, which is targeted at the Program, the Program website, the Network, our employees, contractors or agents, a Participating Store, or other members. This includes communications by means of social media or other Internet posts which violate the above community standards or promote or encourage gaming or fraudulent behavior. Members who violate this provision, as determined by us in our sole discretion, may have their access to the Program suspended or terminated immediately and without prior notice.
7. Security. You will maintain the confidentiality of the user name and password by which you access the Program, and will allow access to the Program or the Network only by expressly authorized persons, and not by any network, expert system, electronic agent, “bot” or other automated means. Any use of your assigned user name or account will be deemed to be your use. If there is a breach of security through your account, you agree that you will immediately change your password and notify us of such breach. You agree that, unless you have first notified us immediately of any such breach, we should assume that any instruction transmitted using your user name and password is yours and has been authorized by you, and we will be entitled to rely on such instruction and will have no obligation to inquire into the validity of such instruction. You will not permit any use of the Program that would damage, interfere with or unreasonably overload the Program. You acknowledge and understand that we will not contact you to solicit your user name or password.
8. Discontinuation or Suspension of Use. We may, in our sole discretion, at any time and without prior notice:
- discontinue transmitting all or any part of the Content related to the Program;
- change, discontinue or limit access to the Program or any functionality, feature or other component of the Program; or
- suspend or terminate your use of or access to the Program without giving you prior notice of such suspension or termination, including without limitation due to: the appearance of fraud; gaming; malicious intent; abuse; violation of community standards; or other violation of the terms or conditions this Agreement, as determined by us in our sole discretion, in addition to any other remedies available to us at law or in equity.
EARNING CASH BACK; RECEIVING PAYMENT
9. Earning Cash Back. You can earn cash back through the Program by making a “Qualifying Purchase” with a Participating Store by:
- Being logged in to the Program website at Splender.com;
- Clicking on an offer link for a Participating Store from the Program website and completing your purchase with the Participating Store within the session generated by clicking the offer link without navigating away from the page;
- Satisfying the terms and conditions and any restrictions in the Participating Store’s offer for your purchase;
- Manually entering only coupon codes found on the Program website; and
- Completing any applicable waiting periods, without making a return, cancellation, or receiving a refund or credit for your purchase.
Please see the Frequently Asked Questions for ways to ensure that your Qualifying Purchase transaction tracks properly.
The cash back you earn will initially appear as “Pending Earnings” in your Program Account after a Participating Store delivers confirmation of your Qualifying Purchase, typically within three (3) to five (5) business days. Assuming you have not returned or cancelled your purchase, or received a refund or credit, forty-five (45) days after your cash back posts to your Program Account, it automatically will be converted to “Available Earnings” status.
Participating Stores may impose conditions or restrictions different from, or in addition to, those described on the pages of the Program website or in other promotional materials. Before making your purchase, you should read each offer carefully on the Participating Store’s website to ensure that you have the most up-to-date terms and conditions for the applicable offer. We are not responsible for setting or maintaining the amount of the cash back offered by any Participating Store or for requirements of any Participating Store’s offer or website. Each Participating Store has reserved the right to change at any time, and without notice, the amount or percentage of any cash back it offers as well as the terms, conditions, and/or availability of any particular offer. Your continued use of the Program thereafter will constitute acceptance of such changed terms and conditions. You acknowledge that inadvertent errors in the offer terms or conditions obtained through use of the Program may occur from time to time, whether caused by a Participating Store or otherwise; either we or the Participating Store, as applicable, will use our respective commercially reasonable efforts to promptly correct any such error, and you agree not to bring any claim or action against either party based on or related to such errors. We do not represent or warrant that any particular Participating Store will participate in the Network at the time you join the Program or at any time thereafter, or that any specific offer will be available at any particular time. Note that when you click on a link for a Participating Store, you leave the Program website and go to the Participating Store’s website, and your purchase is made directly with the Participating Store.
In addition, purchases for which a Participating Store fails to make payment of the fees or commissions payable to us (“Commissions”), including without limitation due to the bankruptcy or insolvency of such Participating Store, may not be deemed to be a Qualifying Purchase for purposes of this Agreement, and contributions previously awarded may be reversed in such case. If you are in doubt about whether or not you are in a valid session for a Qualifying Purchase, you should reenter the Program website and then click on the Participating Store that you wish to shop at, and then complete your transaction. Note that third party retailers or other stores that you may shop at by linking from (a) a Participating Store’s website, or (b) search results using either the Amazon or Google search box on the Program site, are not Qualifying Purchases – only purchases that start by clicking directly from a Participating Store link on Splender.com.
We will not be liable for any failure to post cash back to a Program Account in a timely manner caused by Participating Store delays, failure to track, or similar. While we will research and pursue non-payment of a Commission by a Participating Store, the decision of the Participating Store’s tracking agent is final, particularly in cases where there is no click history to demonstrate that a qualifying purchase has been made by you. You acknowledge and accept that you are solely responsible for checking your Program Account regularly to verify that cash back has been properly posted. If you believe that cash back has not been properly posted to your Program Account, then you must inform us within six (6) months after the Qualifying Purchase for which you are claiming that cash back should have been posted and must be able to provide proof of such transaction reasonably acceptable to us. We reserve the right to determine, in our sole and absolute discretion, whether cash back should have been posted to your Program Account. You acknowledge that any such determination by us will be final and binding.
10. Referral Program. At any time that you are a member of the Program in good standing, you can be an advocate for the Program and in the process earn a ten dollar ($10.00) referral bonus for each qualifying Referral that you make to the Program (each, a “Referral Bonus”). For purposes of this paragraph, a qualifying “Referral” means:
- any new, unique individual, who is not a member of your household (including yourself),
- who is eligible to be a member of the Program in accordance with the terms, conditions, and restrictions of the Agreement,
- who registers for the Program for the first time and has not previously registered for the Program, whether with the same member information or otherwise, and may not be a fraudulent, fictitious or duplicate account,
- who uses a referral link that is provided by the Program and shared by you (the “Unique Referral Link”), and
- who makes a Qualifying Purchase of at least fifty dollars ($50.00) through the Program within ninety (90) days after signing up as a member of the Program (for each Referral made by you, the “Referral Bonus Threshold”).
The Referral Bonus will become Available Earnings in your Program Account at the time a Referral is credited with Available Earnings for the transaction that achieved the Referral Bonus Threshold. In addition, at the time that you are awarded the Referral Bonus, the Referral also will be entitled to receive a five dollar ($5.00) bonus. The Referral Bonus is your sole and exclusive compensation for directing a Referral to the Program.
We make every effort for the referral tracking system to be accurate but cannot be responsible if a referral link is disrupted due to your, the Referral, or a third party’s actions or failure to act, including without limitation failing to complete sign-up and subsequently signing up for the Program directly without using the Unique Referral Link, changing computers or devices, or any another mechanism that potentially could disrupt the referral tracking technology. You agree that the determination of the qualification and source of a Referral is determined in our sole and absolute discretion.
You agree that you only will post the Unique Referral Link in places where you have direct ownership, such as a personal website, personal blog, personal Facebook page, personal Twitter account, etc., and in each case in conformity with the applicable posting guidelines of the relevant referral mechanism. We reserve the right to prohibit any specific referral mechanism to be used if we have deemed it inappropriate for the referral program in our sole and absolute discretion.
You agree that “Spamming” other individuals to join the Program via unsolicited email, direct mail, newsgroups, message boards, or any other means is strictly prohibited for the referral program. You agree that you will only make direct referrals without using any merchant site, keyword bids, black hat SEO, paid advertisements (e.g., pay per click), or other similar methods. You agree that any referral made by you will be done without use of i-frames, bots, or any other method of automated distribution. You agree that you will comply with all applicable laws and regulations, including without limitation those related to CAN-SPAM, truth in advertising, trademark, and privacy. Any referral content used by you in association with the Unique Referral Link will not include inappropriate content, such as hate, porn, violence, or other similar content that we determine in our sole and absolute discretion could be expected to negatively impact our goodwill or reputation. We reserve the right to remove you from the Program if we determine in our sole and absolute discretion that you have violated any of these restrictions, and at such time you agree that you will forfeit all Referral Bonuses, including by offset against Pending Earnings or Available Earnings if previously paid, in addition to any other rights or remedies that we may have at law or in equity.
You acknowledge and agree that we may change or modify the terms of the referral program, in whole or in part, or terminate the referral program in its entirety, at any time, provided that any Referral Bonus that you have earned prior to such change or termination will be subject to the terms that were in effect at the time it was earned.
You acknowledge and agree that if you exceed an aggregate of six hundred dollars ($600.00) in Referral Bonus payments from the Program during any calendar year, we are required by federal law to report this to the Internal Revenue Service (“IRS”). At that time, we will notify you that you need to complete a Form W-9 and return it to us. Otherwise, we will be unable to credit or pay you for any additional Referral Bonus amount exceeding six hundred dollars ($600.00) for that calendar year until such time as you supply the required information to us. Referral Bonuses (but excluding cash back paid for qualifying purchases) will be totaled for each calendar year and will be reported to the IRS in any calendar year during which you are paid more than six hundred dollars ($600.00) in Referral Bonuses. The IRS Form 1099-MISC will be provided within IRS deadlines if a valid IRS Form W-9 is received from you.
11. Cash Back Payments. The Program automatically will pay your cash back once your Available Earnings balance reaches at least ten dollars ($10.00) as of the time our monthly payment processing runs (the “Redemption Threshold”). Payments either are made (a) to the PayPal® account linked to your registered payment email address (which may be different from your registered user email address); (b) by paper check mailed to the valid U.S. postal address (no P.O. boxes) where you are able to receive mail; or (c) such other payment options as we may choose to make available from time to time in our sole discretion. You must provide either (A) an email address linked to a valid, current PayPal® account to us, or (B) the valid U.S. postal address where you are able to receive mail, in order to be eligible to receive a cash back payment. Note that if you have not provided us with an email address linked to a valid, current PayPal® account, or with the valid U.S. postal address (no P.O. boxes) where you are able to receive mail, as of the date our monthly processing runs, we will not be obligated to cause a cash back payment to be issued to you until you have done so. You agree that we may share any required information with a third party fulfillment vendor as may be necessary for the issuance to you of a cash back payment.
12. Returning or Offset of Cash Back. In our sole discretion, we may deduct cash back from your Program Account in order to make adjustments for returns and cancellations with respect to Qualifying Purchases. In the event that you have redeemed cash back from your Program Account and subsequently reverse the transaction with a Participating Store that generated such cash back, or otherwise are required to return the cash back to the Participating Store pursuant to the terms of the applicable offer, whether or not you are still participating in the Program, you will remain solely responsible for the repayment of the cash back credited from such purchase. You agree that we will have the right to offset and debit your Program Account in the amount of such overpayment, even if doing so would result in a negative Program Account balance. In the event you fail to repay such amount, we reserve the right to take any and all legal action necessary to collect the overpayment from you, including but not limited to pursuing such claim in a court of law, employing a debt collection agency or reporting such claim to a credit reporting agency.
We expressly reserve the right to rescind cash back and to bar further cash back earning to, or terminate the membership of, any Member that we believe, in our sole discretion, is or previously has gamed, defrauded, or otherwise abused the Program or the Network, including without limitation by engaging in a pattern of returning products after the corresponding cash back has been credited, making high volume purchases in violation of the spirit of an offer, creating or attempting to create or otherwise participate in any market in generating cash back, or engaging in or accepting any broad-based solicitation of purchases to drive cash back to your Program Account. Any such adjustments will be made in accordance with the applicable terms, conditions, and restrictions described in this Agreement, the Policies, any applicable laws, rules or regulations, and/or the applicable Participating Store offer.
13. Inactive Program Account. If your Program Account is inactive, meaning that you have not made a Qualifying Purchase or otherwise accessed your Program Account for more than twenty-four (24) consecutive months, or if the Program has terminated, we reserve the right to charge your Program Account an inactivity fee of Two Dollars and Fifty Cents ($2.50) per month to recover the cost of your Program Account maintenance until the earliest to occur of you reactivating your Program Account by (a) making a Qualifying Purchase, or (b) accessing your Program Account. If the balance in your inactive Program Account is or becomes zero, we reserve the right to close the account permanently and cease to maintain your account records and Program access. The inactive account maintenance charge will not cause your Program Account balance to become negative and will not cause you to owe money to us.
14. Other Considerations.
- If you use a mobile device to access the Program, you agree that you are solely responsible for all applicable message and data charges that may apply. You acknowledge that wireless service may not be available in all areas at all times and may be affected by factors beyond our control. Your access to and use of the Program by means of your mobile device confirms your agreement to specific terms contained in this Agreement applicable to mobile device use, as well as the rest of these terms.
- We cannot guarantee that cash back will post to a Program Account if you are redirected to a mobile- or tablet-optimized website by a Participating Store. In the case of a Participating Store redirecting you to another website for the purposes of marketing or to provide a mobile-optimized shopping experience, it is the sole responsibility of the Participating Store to retain the elements necessary for the Participating Store to identify your Qualifying Transaction as a result of the referral from us and allow for cash back to be attributed to your Program Account.
- You acknowledge that the Program offer is not valid with other rebate or loyalty network offers. Further, you expressly agree to forfeit and waive any right you may have to other rebate or loyalty network rewards which you may be eligible for through other loyalty networks and only receive the applicable cash back from the Program. Purchases made may not qualify for cash back if a separate coupon code or promotion is used that was not found on the Program website. All offers are subject to the offer conditions as described in the offer description on the Program website and on the Participating Store’s site.
15. No Responsibility for Participating Stores. You agree we are not an agent of any Participating Store and that Participating Stores operate independently of, and are not under our control with respect to the Program or otherwise. Accordingly, we do not represent or warrant, or give any assurances, that any Participating Store will provide cash back for any particular transaction even where such transaction would appear to qualify for such cash back under either our or a Participating Store’s We are not responsible for the failure of any Participating Store to pay cash back in accordance with the terms of that Participating Store’s offer. Further, your participation in offers or promotions of, or correspondence with, any Participating Store is solely between you and that Participating Store. We do not assume any liability, obligation or responsibility for any part of any such correspondence, offer or promotion, including without limitation the withdrawal or modification of any such offer or promotion. Also, no Participating Store assumes any liability, obligation or responsibility for our conduct with respect to the Program.
USE OF INFORMATION
RESERVATION OF RIGHT TO CHANGE THE PROGRAM
17. Program Changes. Cash back accrued through the Program is subject to all the rules and conditions of this Agreement. Any violation of this Agreement or the rules or terms and conditions or restrictions of the Program can result in cancellation of your Program Account and/or forfeiture of pending or prior cash back payments.
- We may, in our discretion, change the Program rules, regulations, and special offers at any time with or without notice. This means that the accumulation of cash back does not entitle Program members to any vested rights with respect to payment of cash back on a specific schedule or payment method after any such changes are effective.
- We may, among other things, (1) withdraw, limit, modify or cancel any award; (2) change Program benefits, award levels, participant affiliations, conditions of participation, rules for earning, redeeming or forfeiting awards, or rules for the use of awards; or (3) otherwise restrict the continued availability of awards or special offers.
- We further reserve the right to end the Program upon ninety (90) days’ prior notice. Program awards and special offers are subject to all applicable laws and regulations.
- You expressly acknowledge and agree that we are not responsible for products or services offered by Participating Stores.
- Term and Termination. This Agreement is effective when accepted by you, as described in the first paragraph of this Agreement, and will remain in effect and legally bind you and us until you or we terminate your membership in the Program. You may terminate your membership in the Program at any time in accordance with the procedures established on the Program website from time to time. We may terminate this Agreement without cause immediately after notice to you of such termination.
- Effect of Termination. Upon any termination of this Agreement, your right to use and access the Program or the Network and to receive cash back will terminate. Subject to the limitations set forth in this Agreement, termination will not prejudice either your or our remedies at law or in equity.
19. Certain Disclaimers; Indemnification.
- Disclaimer of Warranties.
- THE SERVICE, PROGRAM, PROGRAM WEBSITE AND NETWORK ARE PROVIDED ON AN “AS IS, WHERE IS” BASIS AND WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE MAKE NO WARRANTY AS TO THE QUALITY, ACCURACY, COMPLETENESS, OR VALIDITY OF ANY MATERIALS RELATED TO THE FOREGOING AND DO NOT WARRANT THAT THE FUNCTIONALITY OF THE FOREGOING WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE FOREGOING OR THE SERVER(S) THAT MAKE(S) THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- THE PROGRAM, PROGRAM WEBSITE, SERVICE AND PROGRAM MAY CONTAIN FACTS, VIEWS, OPINIONS, STATEMENTS, OR RECOMMENDATIONS OF THIRD-PARTY INDIVIDUALS AND ORGANIZATIONS. WE DO NOT REPRESENT OR ENDORSE THE ACCURACY, CURRENTNESS, OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT, RECOMMENDATIONS, OR OTHER INFORMATION DISPLAYED, UPLOADED, OR DISTRIBUTED THROUGH THE PROGRAM WEBSITE OR OTHERWISE THROUGH THE SERVICE. YOU ACKNOWLEDGE THAT ANY RELIANCE ON ANY SUCH OPINION, STATEMENT, RECOMMENDATIONS OR INFORMATION WILL BE AT YOUR SOLE RISK. FURTHERMORE, WE DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE QUALITY OF, OR ACCURACY OF ADVERTISEMENTS FOR, ANY MERCHANDISE, PRODUCTS OR SERVICES OFFERED OR PROVIDED BY PARTICIPATING STORES OR SUPPLIERS IN CONJUNCTION WITH THE FOREGOING.
- Exclusion of Certain Damages. We will not be liable for any damages, including indirect, special, incidental, punitive, or consequential, regardless of the claim and whether we were advised of the possibility of such damages, arising out of or resulting directly or indirectly from:
- any failure to screen users or Members;
- acts or omissions of any users or Members;
- materials posted by, or of, any party other than us, or any use thereof;
- the accuracy, dependability, privacy, security, authenticity or completeness of data transmitted over or obtained using the Internet; or
- any failure to perform any obligation hereunder, or from any delay in the performance thereof, due to causes beyond its reasonable control, including without limitation the elements, acts of God, labor disputes, acts of terrorism, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, failure or erratic behavior of telecommunications or power system, sabotage, armed hostilities, riots or government regulations (e.g., regulation of the Internet).
- Indemnification. You agree to indemnify us, and any Participating Store, as well as their respective officers, directors, employees, successors or assigns, agents, and affiliates, for any and all claims, damages, losses and causes of action (including attorneys’ fees and court costs) arising out of or relating to your breach of this Agreement (including without limitation relating to a breach by you of Section 5 (No Unauthorized Use of the Program or the Network)), or for any materials in any form whatsoever that are provided by you (or through your user name and/or password). You agree to cooperate as fully as reasonably required, including making materials and/or personnel available, in our defense and/or settlement of any claim. We reserve the right, in our reasonable discretion, to assume exclusive control over the defense and settlement of any matter subject to indemnification by you.
20. Limitation of Liability.
- NO PARTICIPATING STORE, CARTERA, OR ANY INVESTMENT PARTNER, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, OR AFFILIATES ARE RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES OR FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SERVICE, THE INFORMATION CONTAINED ON THE PROGRAM WEBSITE, OR (EXCEPT IN THE CASE OF THE APPLICABLE PARTICIPATING STORE OR SUPPLIER) ANY MERCHANDISE, PRODUCTS OR SERVICES OFFERED BY PARTICIPATING STORES OR SUPPLIERS IN CONJUNCTION WITH THE SERVICE, EVEN IF ANY SUCH ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
- IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FROM ALL DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THE PROGRAM WEBSITE OR PARTICIPATION IN THE SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE REDEEMABLE VALUE OF REWARDS IN YOUR PROGRAM ACCOUNT AT THE TIME OF ANY SUCH CLAIM.
21. Electronic and Oral Communications.
- Member Instructions. We may rely on your oral and electronic instructions. In addition, you consent to the monitoring and recording of your telephone conversations with us for training or compliance purposes or to provide a record of your instructions. You agree that we will not be liable for honoring oral instructions received from any person claiming to be you, provided normal verification procedures have been followed. We may follow any instructions received by electronic means through the Program website just as if you had given such instructions in person, regardless of whether or not you have personally initiated such instructions.
- Communications. You consent to the receipt of all reports, transaction confirmations, account statements, cash back postings, correspondence and other information from us electronically through either (i) access to your Program Account on the Program website or (ii) the email address provided by you. We will not be responsible for your inability to connect to the Internet or to access the Program website or otherwise not to receive electronic communications. Electronic communications are presumed to be delivered to and received by you when sent by us, whether actually received or not. You acknowledge that you have access to hardware and software meeting the system requirements set forth on the Program website necessary to receive from us correspondence and records in electronic form.
22. Governing Law. The validity, construction and interpretation of this Agreement, and the rights and duties of the parties hereto, will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts of laws principles. Each party hereto agrees that all claims relating to this Agreement, the Program, the Program website, or the Network will be heard exclusively by a state or federal court in Massachusetts. Accordingly, each party hereby consents to the exclusive jurisdiction of any state or federal court in Massachusetts over any proceeding related to this Agreement, irrevocably waives any objection to the venue of any such court, and irrevocably waives any claim that any such proceeding in such a court has been brought in an inconvenient forum.
23. Assignment. You may not assign your rights and obligations under this Agreement, in whole or in part, without our prior written consent, and any such assignment without such consent will be null and void and without force or effect. We may assign our respective rights and obligations under this Agreement, in whole or in part, without your consent. This Agreement will inure to the benefit and burden of the parties hereto and their respective permitted successors and assigns.
24. Notices. Any notice by one party hereto to the other will be in writing (which may include email) and either personally delivered, delivered by Internet email, or sent via reputable overnight courier or certified mail, postage prepaid and return receipt requested. Notices will be sent to you at the Internet email address provided by you at registration, as the same may be updated by you from time to time on the Program website, and to us at: SplenderSM, c/o Cartera Commerce, Inc., One Cranberry Hill, Suite 203, Lexington, MA 02421, Attn.: Customer Support, or at such other information or address which a party may from time to time provide to the other in accordance with this Section. All notices will be in English and will be deemed effective on the date of personal delivery, upon signed receipt from an overnight courier, or five (5) days after deposit with the U.S. Postal Service, or in the case of you, upon email transmission to the registered email address for your Program Account by us.
25. No Waiver; Severability. The waiver by either party hereto of a breach or default of any provision of this Agreement by the other party hereto will not be construed as a waiver of any succeeding breach or default of the same or any other provision, nor will any delay or omission on the part of either party hereto to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party. If any provision of this Agreement is held to be invalid, such invalidity shall not affect the remaining provisions, which shall remain in full force and effect.
26. Relief. You acknowledge and accept that any breach of Section 5 (No Unauthorized Use of the Program or the Network) above is likely to irreparably harm us and will not be susceptible of cure by monetary damages. Consequently, if you breach any provisions of Section 5, then we will be entitled to seek to obtain injunctive or other equitable relief in addition to any remedies it may have at law.
27. Third-Party Beneficiary. Each Participating Store is hereby expressly made a third party beneficiary of this Agreement and may enforce the terms of this Agreement directly against you.
28. Entire Agreement. This Agreement represents the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter hereof (including without limitation, earlier versions of this Agreement that may have been accepted by you through the Program website or otherwise). We reserve the right to modify this Agreement at any time. Your non-termination and continued membership in Program after notice of any modification of this Agreement will constitute affirmative acceptance by you of such modification and your consent to abide by any terms thereof. You acknowledge that the most recent version of this Agreement will be located on the Program website. No other act, document, usage or custom will be deemed to amend or modify this Agreement.
Your continued membership in the Program after any modification of this Agreement will constitute affirmative acceptance by you of such modification and your consent to abide by any terms thereof until such time as you affirmatively give notice of termination of your membership in the Program. You acknowledge that the most recent version of this Agreement will be located on the Program website. No other act, document, usage or custom will be deemed to amend or modify this Agreement.
The design, content, and subject matter of the Program website, including this Agreement, are copyright 2015 Cartera Commerce, Inc. You acknowledge and agree that all content on the Program website, including any material that may be submitted by you (whether or not expressly solicited by us), is owned exclusively by us, and you expressly grant us and our affiliates an irrevocable, unlimited, royalty-free, non-exclusive, fully transferable, assignable, and sublicensable right and license to use, reproduce, modify, display, transmit, publish, create derivative works from, and publish such material, whether on the Program website or otherwise.
SplenderSM and the Splender logo are service marks of Cartera Commerce, Inc. All other referenced trademarks and logos on the Program website and otherwise used in connection with the Program are owned or licensed by the respective parties (e.g., Participating Stores).