Splurgy Terms of Service
Agreement
The terms of service set forth below ( “Terms of Service” ) and the privacy policy referenced in Section 2 below ( “Privacy Policy” ) constitute the agreement ( “Agreement” ) between Splurgy Inc., a Delaware corporation ( “Splurgy” ) and you as an end user ( “User” ) of the services offered by Splurgy through our software, applications and/or websites ( “Services” ). By using the Services, you agree to be bound by these Terms of Service and the Privacy Policy. Please read these Terms of Service and the Privacy Policy before using any of the Services. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE OR THE PRIVACY POLICY, OR YOU ARE UNDER 18 YEARS OLD, YOU ARE NOT AUTHORIZED TO USE THE SERVICES.
Privacy Policy
In connection with your use of the Services, we collect registration and other information about you. Our collection and use of this information is governed by our Privacy Policy, available on the homepage of our website at www.splurgy.com. Please review our Privacy Policy carefully, and if you do not agree with any of its terms, you are not authorized to use the Services.
Sponsors and Campaigns
In connection with our Services, registered merchants and third party affiliates ( “Sponsors” ) create deal and giveaway campaigns ( “Campaigns” ) and Users may enter or participate in such Campaigns. If you are a participant in any Campaign, (i) you acknowledge the Sponsor is responsible for the Campaign, including ensuring the Campaign complies with all applicable laws, rules, and regulations; (ii) you agree to comply with the Sponsor’s official rules, including any applicable terms of service, privacy policy or other information provided by the Sponsor prior to your engaging in the Campaign; (iii) you acknowledge Splurgy is not responsible or liable for the failure of any Sponsor to comply with the rules, terms, conditions, policies, and applicable laws, rules, or regulations governing the Campaign; (iv) you acknowledge Splurgy does not sponsor, administer, or endorse, and is therefore not liable for, the content of any Campaign; and (v) you acknowledge and agree Splurgy is not responsible or liable for Sponsor’s use or distribution of information you provide.
Splurgy’s Role
Splurgy is a universal promotions platform that allows brands to promote Campaigns to Users of our Services through their social media pages, their websites, and publisher sites (“Publishers”). Beyond connecting Sponsors with Users, Splurgy is not responsible for the acts or omissions of Sponsors, Users, or Publishers, including, without limitation, any representations or warranties made by any Sponsor with respect to the quality of its goods or services. You agree to use the Services at your own risk, and in the event you have a dispute with any Sponsor in connection with any Campaign or any other matter, you release, hold harmless and indemnify Splurgy and its affiliates, shareholders, directors, officers, agents, employees, representatives and assigns (“Splurgy Parties”) from any claims, costs, damages, expenses, or liability, including attorney’s fees and court costs, arising out of or in connection with such dispute. Splurgy reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Splurgy in asserting any available defenses.
User Content and Registration Information
As used in this Agreement, “User Content” refers to any and all information, content and materials submitted by Users in connection with the use of our Services, including information submitted when registering for an account to use the Services ( “Registration Information” ). In submitting Registration Information, you agree to (a) provide accurate, current and complete information; (b) maintain the security of your password; (c) maintain and promptly update the Registration Information, and any other information you provide to us, so as to keep such information accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Information and any other information you provide to us. We reserve the right to suspend or terminate a User if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You agree to take sole responsibility for all activities or actions that occur under your account, whether or not you have authorized such activities or actions. You agree to notify us immediately of any unauthorized use of your account.
User Content Disclaimer
Splurgy does not control or endorse User Content, and, therefore, Splurgy specifically disclaims any liability concerning User Content. Splurgy shall have the right, but not the obligation, to monitor User Content at all times to determine compliance with this Agreement, as well as to satisfy any applicable law, regulation or authorized government request. Without limiting the foregoing, Splurgy shall have the right to edit, delete, remove, prohibit, change or otherwise modify any User Content that Splurgy, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable, unsuitable or inappropriate.
Fee Terms
Splurgy reserves the right to require payment of fees for certain Services. Should you elect to subscribe to such Services, you shall be notified of, and responsible for paying, all applicable fees as described. Splurgy reserves the right to change its fees for any Services and to institute new charges at any time, upon ten (10) calendar days prior notice to you, which notice may be sent by e-mail or deemed sent to you upon posting on any of our websites or applications. Use of the Services by you following such notification or posting, as the case may be, shall constitute your acceptance of any new or increased charges.
Account Cancellation
You are solely responsible for properly cancelling your account. E-mail other than to the address set forth in this section shall not be considered cancellation of your account or termination of the Agreement. You can cancel your account any time by submitting written notice of your wish to cancel your account to support@splurgy.com, which notice shall include your name and the user name on the account. All of your User Content and account information will ultimately be deleted from our system after cancellation of the account and may not be recovered thereafter. If you are on a paid subscription and cancel your account before the end of the current paid up month, cancellation will take effect immediately though your use of the Services will remain functional through the end of the paid period and no refunds of any amounts shall be made.
Use of Service
Splurgy has provided you access to the Services solely for use as described on our websites and applications and these Terms of Service and for no other purpose whatsoever. Further, in your use of the Services, you explicitly agree not to: (i) upload, post, email, or otherwise transmit any content, including User Content, that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable, or which contains instructions to commit, or encourages, any unlawful, illegal, or criminal activity; (ii) harm us or third parties in any way; (iii) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (iv) upload, post, email, or otherwise transmit any content, including User Content, that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (v) upload, post, email or otherwise transmit any content, including User Content, that infringes any patent, trademark, trade secret, copyright, or other right of any party; (vi) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other forms of solicitation; (vii) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (viii) interfere with, disrupt, or place an unreasonable burden upon the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (ix) attempt to reverse engineer or jeopardize the correct functioning of the Services, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Services; (x) attempt to gain access to secured portions of our websites or applications to which you do not possess access rights; (xi) intentionally or unintentionally violate any applicable local, state, national or international law or regulation; (xii) “stalk” or otherwise harass another; (xiii) crawl, scrape, or otherwise monitor, with or without automated tools, the Services, to collect or compile information from the Services or for any other commercial purpose; (xiv) collect or store personal data about other Users; or (xv) upload, post, email, or otherwise transmit any content, including User Content, that contains, advertises, or promotes any unlawful or illegal content, items, or materials.
Access to and Modifications of the Services
We do not provide you with the equipment to access the Services. You are responsible for all fees charged by third parties related to your access and use of the Services (e.g., charges by internet service providers and wireless providers). We reserve the right to modify, discontinue, limit, and restrict, temporarily or permanently, all or any portion of the Services, including any of the features or functionality of our websites or applications. The Splurgy Parties will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any portion thereof.
Availability of Services
You acknowledge that interruptions in the Services and/or other events may occur that are beyond the control of Splurgy, and that Splurgy shall not be responsible for any data lost while transmitting information on our websites or applications. While Splurgy aims to make the Services accessible at all times it may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of the control of Splurgy, access to the Services may be interrupted, suspended or terminated from time to time.
Licenses and Intellectual Property
Unless and until this Agreement has been terminated, Splurgy grants to you a limited, personal, non-exclusive, non-transferable license to use the Services for your personal use and not for resale or further distribution. ANY COPYING, DISTRIBUTING, TRANSMITTING, POSTING, LINKING, DEEP LINKING, OR OTHERWISE MODIFYING OF OUR SERVICES CONTENT WITHOUT THE EXPRESS PRIOR WRITTEN PERMISSION OF SPLURGY IS STRICTLY PROHIBITED. Except for your pre-existing rights and this license granted to you, Splurgy and its licensors retain all intellectual property rights and other right, title and interest in and to the Services, including all content thereon excepting User Content. The Services are protected by applicable intellectual property laws, including United States copyright law and international treaties. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, you will not, and will not permit or authorize any third party to: (i) reproduce, modify, publish, transmit, translate, enhance, decompile, disassemble, reverse engineer, create derivative works of or in any way exploit the Services or any of the materials on or content of the websites or applications excepting your User Content; (ii) rent, lease or sublicense access to the Services; or (iii) circumvent or disable any security or technological features or measures of the Services. Except for those rights granted expressly in this Agreement, no other rights are granted, either express or implied, to you under this Agreement. Unless stated explicitly in this Agreement, nothing in this Agreement will be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise.
By providing or posting any User Content or permitting the collection of any information or data by us, you (a) grant Splurgy, its affiliates and subsidiaries a non-exclusive, worldwide, perpetual, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such User Content, in the manner in and for purposes for which the Services use such User Content; (b) represent and warrant that (I) you own and control all of the rights to the User Content, information and data that you post and permit us to collect, or you otherwise have the lawful right to collect, post and distribute that User Content, information and data to or through the Services, and (II) the use and posting or other transmission of such User Content does not violate these Terms of Service and will not violate any rights of or cause injury to any person. If your User Content is intended for the use of other users or third parties, you also grant us and our affiliates and subsidiaries a non-exclusive, worldwide, perpetual, royalty-free, transferable right to sublicense such User Content to Sponsors and third-parties for their use in connection with our provision of the Services.
Disclaimer of Warranties
You expressly understand and agree that:
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS. SPLURGY EXPRESSLY DISCLAIMS ALL GUARANTEES AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. SPLURGY MAKES NO GUARANTEE OR WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH YOUR USE OF THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN OUR SOFTWARE WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SERVICES IS OBTAINED AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE OR DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SPLURGY OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. ANY PRODUCTS AND SERVICES OBTAINED BY YOU FROM OR THROUGH ANY SPONSORS OR THIRD PARTIES ARE SOLD SOLELY BY SUCH SPONSORS OR THIRD PARTIES AND SPLURGY SHALL NOT BE LIABLE FOR ANY WARRANTIES IN RESPECT THEREOF.
Limitations of Liability
To the extent permitted by applicable law:
IN NO EVENT SHALL ANY SPLURGY PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF THE SPLURGY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES. IN NO EVENT WILL SPLURGY’S LIABILITY IN CONNECTION WITH ANY SERVICES EXCEED THE AMOUNTS ACTUALLY PAID, OR AGREED TO BE PAID, FOR SUCH SERVICES, AND TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO SPLURGY DURING THE TWELVE MONTHS PRECEDING THE BRINGING OF ANY CLAIM. SPLURGY DOES NOT CONTROL USER CONTENT AND DOES NOT GUARANTEE THE ACCURACY, INTEGRITY OR QUALITY OF SUCH USER CONTENT. UNDER NO CIRCUMSTANCES WILL ANY SPLURGY PARTY BE HELD LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON ANY USER CONTENT AVAILABLE ON OR THROUGH THE SERVICES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE USER CONTENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, OUR LIABILITY, AND THE LIABILITY OF OUR AGENTS AND REPRESENTATIVES, SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. USERS RESIDING IN CALIFORNIA AGREE THAT BY USING THE SERVICES THEY WAIVE ANY RIGHTS THEY MAY HAVE PURSUANT TO THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES: “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.”
Indemnity
You agree to release, hold harmless and indemnify all of the Splurgy Parties from any claim, costs, damages, expenses, or liability, including attorney’s fees and court costs, made by you or any third party due to or arising out of User Content submitted by you or your use of the Services or any products or services obtained through the Services, your violation of this Agreement, or your violation of any rights of a third party through use of the Services or User Content.
Termination of this Agreement
Splurgy may terminate this Agreement at its election and for any reason, without prior notice, and this Agreement will automatically terminate in the event you violate any of the terms and conditions set forth herein. Without limiting the foregoing, Splurgy shall have the right to immediately terminate any of your passwords or accounts in the event of any conduct by you which Splurgy, in its sole discretion, considers to be unacceptable, or in the event of any breach by you of this Agreement. The provisions of Sections 6 and 13 through 22 of this Agreement, and any other provisions which by their nature are intended to survive, will survive termination of this Agreement.
Third Party Content and Links
The Services may provide, or third parties may provide, links to other internet sites or resources. Because Splurgy has no control over such sites and resources, you acknowledge and agree that Splurgy is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that none of the Splurgy Parties 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 such content, goods or services available on or through any such site or resource.
DMCA Notice
Splurgy respects the intellectual property of others, and we ask you to do the same. If you are a copyright owner or an owner’s agent and find any content on the Website that infringes upon your copyrights, you may submit a notification according to the Digital Millennium Copyright Act. To do so, please provide our Copyright Agent with the following information (see 17 U.S.C 512(c)(3) for further detail) in writing: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; (v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Splurgy’s designated Copyright Agent to receive notifications of claimed infringement can be reached at legal@splurgy.com. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
Changes to this Agreement
Splurgy shall have the right at all times to modify this Agreement as it deems necessary or desirable without prior notification. Any modifications to this Agreement shall be effective immediately upon Splurgy posting them on our websites or applications. We suggest that users periodically review the current version of this Agreement from time to time in order that you stay informed as to any such changes. You can find the most recent version of this Agreement at any time at http://www.splurgy.com/terms/ with the date of the most recent update at top. If you do not agree to any changes to this Agreement, you should immediately cease using the Services. If we make changes to this Agreement and you continue to use the Services, you will be deemed to have agreed to such changes.
Dispute Resolution Procedures
In the event of any dispute between you and Splurgy relating in any way to the Services or this Agreement, you and Splurgy agree to use best efforts to resolve such dispute through direct communications before initiating any arbitration or court proceeding. If, however, the parties are unable to resolve the dispute within sixty (60) calendar days of either party first providing the other party written notice of the matter, you and Splurgy agree that the dispute shall be exclusively and finally resolved by arbitration before a single arbitrator. You agree the arbitration shall be limited to the dispute between Splurgy and you individually and shall not be joined with any other, whether on behalf of a defined class, the general public or otherwise. The arbitration shall be governed by the Rules of Commercial Arbitration of the American Arbitration Association (before a single arbitrator), and you and Splurgy agree that the decision of the arbitrator shall be final and the arbitrator’s order may be entered in any court of competent jurisdiction. The foregoing provisions of this Section 20 shall not apply to any action for injunctive relief by either party or to any claim of infringement upon any intellectual property right of either party.
Governing Law and Venue for Dispute Resolution
The terms of this Agreement, and any dispute or claim arising out of or in connection with this Agreement, or usage of or access to the Services, shall be governed by and in accordance with the laws of the State of California (exclusive of its rules regarding conflicts of laws) and the venue for resolution of such dispute or claim, whether an arbitration or court proceeding in accordance with the terms of Section 20 of this Agreement, shall be San Francisco, California.
Miscellaneous
The terms and conditions of the Agreement constitute the entire agreement between the parties and supersede any prior or contemporaneous written or oral agreement or understanding with respect to the subject matter hereof. The failure by either party at any time or for any period of time to enforce any provision of the Agreement shall not be construed as a waiver of that provision and shall not affect that party’s right to enforce that or any other provision at a later date. All captions and titles in the Agreement are for convenience of reference only and are without legal significance or effect. If any provision of the Agreement is held invalid by a court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions contained in the Agreement and the remaining portions of the Agreement shall continue in full force and effect.
Last Updated: March 22, 2012
