Last updated: 4/23/2020
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND WAIVER OF JURY TRIAL. PLEASE READ IT CAREFULLY BEFORE AGREEING.
Attention Exchange, Inc. (hereinafter “Atten-X,” “we” or “us”) provides this website (the “Site”), the storage functionality associated with the Site, and the associated data, services, information, tools, functionality, updates and similar materials delivered or provided by us (collectively, the “Service”), subject to your agreement to and compliance with the conditions set forth in this Terms of Service agreement (the “Agreement”).
This Agreement sets forth the legally binding terms and conditions governing your access to and use of the Service. By accessing or using the Service or otherwise entering into this Agreement, you are creating a binding contract with us. If you do not agree to these terms and conditions, you may not access or use the Service.
We may revise or update this Agreement by posting an amended version through the Service and making you aware of the revisions, which may be through posting to the Service or otherwise. Your continued access to or use of the Service following an update to this Agreement (or other acceptance method) is considered acceptance of the updated Agreement. Please refer to the “Last updated” date above to see when this Agreement was last updated.
As long as you are in compliance with the conditions of this Agreement and all incorporated documents, we hereby grant you a limited, revocable, non-assignable, non-transferrable, non-sublicensable, non-exclusive license to access, receive and use the Service. No rights not explicitly listed are granted.
2. Incorporated Terms
The following additional terms are incorporated into this Agreement as if fully set forth herein:
3. Platform Overview; Rewards; Points
Among other functionality, the Service provides users access to third party advertising and promotional materials, and the opportunity to view and interact with such materials and otherwise provide information to such third parties in exchange for the opportunity to earn rewards. Atten-X may offer one or more rewards programs (“Rewards Program”) pursuant to which you may earn points (“Points”), which are redeemable for rewards. Atten-X may offer multiple types and tiers of such Rewards Programs, including but not limited to a premium tier, whereby users in such tier (“Premium Users”) may earn Points at a different rate or may exchange Points for different rewards in exchange for the sharing of different information. Users of the Service, including Premium Users, are collectively referred to as “Users” or “you.”
Users may earn Points by accessing and/or interacting with third party advertising and promotional materials, providing information to third parties, or participating in other activities in accordance with the terms of the applicable Rewards Program. Atten-X shall make the sole determination as to whether you have completed an activity and earned Points, which shall be based upon the information made available to Atten-X through the Service and any limitations on such activities, as may be provided in the applicable Rewards Program.
Users may redeem Points for rewards offered under an applicable Rewards Program. Points may only be redeemed through the Service. Rewards are provided on a first-come, first-serve and while-supplies-last basis. If a reward is not available when you redeem Points for it, Atten-X may, in its sole discretion, refund to you such Points or provide a reward of equal or greater value. No refunds, cancellations, chargebacks or reversals are available for Points redemptions. Points have no cash value. Points are non-transferable, including by operation of law, and become void upon any such attempted transfer automatically, without any further action by Atten-X. Points may expire after a period of time if unused, and rewards may be forfeited after a period of time if unclaimed.
The current range of Rewards Programs, and associated Points, rewards and other terms, is available on the Service. Atten-X may at any time limit, suspend or terminate Users’ participation in Rewards Programs, and void and cancel Users’ Points or eligibility for rewards, in the event that Atten-X determines, in its sole discretion, that such User has violated this Agreement. Atten-X may revise, suspend, cancel or terminate all or any portion of a Rewards Program at any time without prior notice to you.
You must be at least thirteen (13) years old to use the Service. By using the Service, you represent that you meet the applicable minimum age requirement.
Some parts or all of the Service may not be available to the general public, and we may impose eligibility rules from time to time. We reserve the right to amend or eliminate these eligibility requirements at any time.
By requesting to use, registering to use and/or using the Service, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and you commit to abide by all of the terms and conditions hereof. You also represent and warrant that you are not a competitor of Atten-X.
5. Important Notices
We do not represent or warrant that access to the Service will be error-free or uninterrupted, or without defect, and we do not guarantee that you will be able to access or use the Service, or its features, at all times. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part thereof, with or without notice.
The Service may contain typographical errors or inaccuracies and may not be complete or current. We reserve the right to correct any such errors, inaccuracies or omissions and to change or update information at any time without prior notice.
You agree that Atten-X is not responsible for the termination of any Rewards Programs or User accounts of, and will not be required to compensate you for the foregoing, including the loss of any associated Points or reward redemption eligibility. You agree that Atten-X is not responsible for the quality, performance, safety, suitability or performance of any rewards, including both products and services.
Your access to, or interaction with third party materials on the Service may be subject to separate terms between you and such third party. We are not responsible for those terms or your relationship with such third parties.
6. Rules of Conduct
Your access to the Service is conditioned on your compliance with the terms of this Agreement, including but not limited to these rules of conduct.
You agree that you will not violate any applicable law or regulation in connection with your use of the Service.
You must keep your user name, password, and any other information needed to login to the Service, if applicable, confidential and secure. We are not responsible for any unauthorized access to your account or profile by others.
You agree not to distribute, upload, make available or otherwise publish through the Service any data, suggestions, information, ideas, comments, causes, promotions, documents, questions, notes, plans, drawings, proposals, or materials similar thereto (“Submissions”) or graphics, text, information, links, profiles, audio, photos, software, music, sounds, video, comments, messages or tags, or similar materials (collectively “Content”) that:
You are not licensed to access any portion of the Service that is not public, and you may not attempt to override any security measures in place on the Service.
Notwithstanding anything herein to the contrary, we reserve the right, in our sole discretion, to protect our users from violators and violations of these rules of conduct, including but not limited to, suspending or terminating your eligibility for Rewards Programs, voiding Points, restricting your access to the Service, restricting your ability to upload Submissions or Content, immediately terminating your access to the Service, or terminating your access to the Service by blocking certain IP addresses from accessing the Service. Notwithstanding the foregoing, our unlimited right to terminate your access to the Service shall not be limited to violations of these rules of conduct.
7. Content Submitted or Made Available to Us
You are under no obligation to submit anything to us, and unless otherwise noted, we will not claim ownership of any Content. However, in order for us to provide the Service, we need your permission to process, display, reproduce and otherwise use content you make available to us.
Therefore, if you choose to submit any Content to the Service, or otherwise make available any Content through the Service, you hereby grant to us a perpetual, irrevocable, transferable, sub-licensable, non-exclusive, worldwide, royalty-free license to reproduce, use, modify, display, perform, transmit, distribute, translate and create derivative works from any such Content for purposes of providing the Service, and in accordance with your instructions, including without limitation distributing part or all of the Content in any media format through any media channels.
You acknowledge that we are under no obligation to maintain the Service, or any information, materials, Submissions, Content or other matter you submit, post or make available to or on the Service. We reserve the right to withhold, remove and or discard any such material at any time.
8. Our Intellectual Property
Our graphics, logos, names, designs, page headers, button icons, scripts, and service names are our trademarks, trade names and/or trade dress. The “look” and “feel” of the Service (including color combinations, button shapes, layout, design and all other graphical elements) are protected by U.S. copyright and trademark law. All product names, names of services, trademarks and service marks (“Marks”) are our property or the property of their respective owners, as indicated. You may not use the Marks or copyrights for any purpose whatsoever other than as permitted by this Agreement.
You acknowledge that the software used to provide the Service, and all enhancements, updates, upgrades, corrections and modifications to the software, all copyrights, patents, trade secrets, or trademarks or other intellectual property rights protecting or pertaining to any aspect of the software (or any enhancements, corrections or modifications) and any and all documentation therefor, are and shall remain our sole and exclusive property or that of our licensors, as the case may be. This Agreement does not convey title or ownership to you, but instead gives you only the limited rights set forth herein.
9. Data Collection and Use
10. Enforcement and Termination
We reserve the right to deny all or some portion of the Service to any user, in our sole discretion, at any time. Without limiting the foregoing or assuming additional legal obligations, we have a policy of terminating repeat violators of the Copyright Act, in accordance with applicable law.
All grants of any rights from you to us related to Content, Submissions, or other materials, including but not limited to copyright licenses, shall survive any termination of this Agreement. Further, your representations, defense and indemnification obligations survive any termination of this Agreement.
11. Disclaimers and Limitation On Liability
EXCEPT WHERE NOT PERMITTED BY LAW, YOU AGREE AND ACKNOWLEDGE THAT THE SERVICE, AND ALL REWARDS, ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY, AND WE, AND OUR PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTIES OF ANY KIND IN AND TO THE SERVICE AND ANY REWARDS. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY.
FURTHER, OPINIONS, ADVICE, STATEMENTS, OFFERS, SUBMISSIONS OR OTHER INFORMATION OR CONTENT MADE AVAILABLE THROUGH THE SERVICE, BUT NOT DIRECTLY BY US, ARE THOSE OF THEIR RESPECTIVE AUTHORS, AND SHOULD NOT BE RELIED UPON. WE HAVE NO CONTROL OVER THE QUALITY, SAFETY, OR LEGALITY OF SUCH CONTENT, AND MAKE NO REPRESENTATIONS ABOUT SUCH CONTENT. THE RESPECTIVE AUTHORS ARE SOLELY RESPONSIBLE FOR SUCH CONTENT. YOU ARE SOLELY RESPONSIBLE FOR ANY DECISIONS THAT YOU MAKE BASED UPON SUCH CONTENT.
ACCESS TO AND USE OF THE SERVICE, AND RECEIPT AND USE OF THE REWARDS, IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT DATA TRANSMISSION OR STORAGE IS SECURE OR THAT THE SERVICE IS FREE OF INACCURACIES, MISREPRESENTATIONS, VIRUSES OR OTHER HARMFUL INFORMATION OR COMPONENTS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS PROHIBITED BY LAW, IN NO EVENT SHALL WE OR OUR AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE TO YOU BASED ON OR RELATED TO THE SERVICE, OR ANY REWARDS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE, OR RECEIPT AND USE OF THE REWARDS.
Notwithstanding the foregoing, in the event that a court shall find that the above disclaimers are not enforceable, then, to the maximum extent permissible by law, you agree that neither we nor any of our subsidiaries, affiliated companies, employees, members, shareholders, officers or directors shall be liable for (1) any damages in excess of the greater of (a) $500.00 or (b) the amounts paid to, or by, you through the Service within the last six months, or (2) any indirect, incidental, punitive, exemplary, special, or consequential damages or loss of use, lost revenue, lost profits or data to you or any third party from your access to or use of the Service or the receipt and use of the rewards. This limitation shall apply regardless of the basis of your claim, whether other provisions of this Agreement have been breached, or whether or not the limited remedies provided herein fail of their essential purpose.
This limitation shall not apply to any damage that we cause you intentionally and knowingly in violation of this Agreement or applicable law that cannot be disclaimed in this Agreement.
SOME STATES MAY NOT PERMIT CERTAIN DISCLAIMERS AND LIMITATIONS, AND ANY SUCH DISCLAIMERS OR LIMITATIONS ARE VOID WHERE PROHIBITED.
You agree to defend, indemnify and hold us and all Brands, and each of our affiliates, subsidiaries, suppliers, licensors, and licensees, and each of their officers, directors, shareholders, members, employees and agents harmless from all allegations, judgments, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees, expert witness fees, and costs of litigation arising out of or based on (i) Submissions or Content you submit, post or upload to, or transmit through the Service, (ii) your access to or use of the Service, (iii) your violation of this Agreement, (iv) any tax obligations that arise from your access to or use of the Service, and (v) any conduct, activity or action which is unlawful or illegal under any state, federal or common law, or is violative of the rights of any individual or entity, engaged in, caused by, or facilitated in any way through the access to or use of the Service.
13. Governing Law and Jurisdiction; Arbitration
You agree that any claim or dispute arising out of or relating in any way to the Service will be resolved solely and exclusively 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. The laws of the Commonwealth of Massachusetts shall govern this Agreement, and shall be used in any arbitration proceeding.
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 this Agreement as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the following address: Legal Department, Attention Exchange Inc., 251 Little Falls Drive, Wilmington, DE 19808.
Arbitration under this Agreement will be conducted by the American Arbitration Association (AAA) under its rules then in effect, shall be conducted in English, and shall be located in Boston, Massachusetts. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.
You and Atten-X 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, both you and Atten-X agree that each have waived any right to a jury trial.
Notwithstanding the foregoing, you agree that we may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights.
All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
To the extent arbitration does not apply, you agree that any dispute arising out of or relating to the Service, or to us, may only be brought by you in a state or federal court located in Boston, Massachusetts. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN MASSACHUSETTS.
14. Policies for Children
The Service is not directed to individuals under the age of 13. In the event that we discover that a child under the age of 13 has provided personally identifiable information to us, we will make efforts to delete the child’s information if required by the Children's Online Privacy Protection Act. Please see the Federal Trade Commission's website for (www.ftc.gov) for more information.
Notwithstanding the foregoing, pursuant to 47 U.S.C. Section 230 (d), as amended, we hereby notify you that parental control protections are commercially available to assist you in limiting access to material that is harmful to minors. More information on the availability of such software can be found through publicly available sources. You may wish to contact your internet service provider for more information.
Severability. If any provision of this Agreement is found for any reason to be unlawful, void or unenforceable, then that provision will be given its maximum enforceable effect, or shall be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
Revisions. This Agreement is subject to change on a prospective basis at any time. In the event that we change this Agreement, you may be required to re-affirm the Agreement through use of the Service or otherwise. Your access to and use of the Service after the effective date of any changes will constitute your acceptance of such changes.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement or your use of the Service.
Assignment. We may assign our rights under this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without our prior written consent, and any unauthorized assignment by you shall be null and void.
No Waiver. Our failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Notices. All notices given by you or required under this Agreement shall be in writing and addressed to: Legal Department, Attention Exchange Inc., 251 Little Falls Drive, Wilmington, DE 19808.
Equitable Remedies. You hereby agree that we would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Force Majeure. In no event shall we or our affiliates be liable to you for any damage, delay, or failure to perform resulting directly or indirectly from a force majeure event.
Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Service, and supersedes all prior or contemporaneous communications, whether electronic, oral or written.
16. Copyright Policy
If you believe in good faith that any material posted on our Service infringes the copyright in your work, please contact our copyright agent, designated under the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. §512(c)(3)), with correspondence containing the following:
You acknowledge that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid. For any questions regarding this procedure, or to submit a complaint, please contact our designated DMCA Copyright Agent:
Attention Exchange, Inc.
251 Little Falls Drive
Wilmington, DE 19808
17. Complaint Policy (Including Trademark and Privacy)
If you believe in good faith that any material posted on the Service infringes any of your rights other than in copyright, or is otherwise unlawful, you must send a notice to email@example.com containing the following information:
If we receive a message that complies with all of these requirements, we will evaluate the submission, and if appropriate, in our sole discretion, we will take action. We may disclose your submission to the poster of the claimed violative material, or any other party.