IMPORTANT NOTICE: DISPUTES ABOUT THESE TERMS AND THE PURCH SERVICES ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” SECTION BELOW.
This Terms of Use (the “Terms”) is a legal agreement between you and Purch Group, Inc. and its corporate affiliates, subsidiaries, and divisions as may change from time to time (collectively, “Purch,” “we,” “us,” and “our”). These terms apply to Purch’s websites, mobile applications, and other digital and interactive services that link to these Terms (together, the “Services”).
You acknowledge and agree that, by accessing or using the Services or by uploading or posting any User Content (as defined below) to the Services, you, your heirs, and assigns (collectively, “you”) are indicating that you have read, understand, and agree to be bound by these Terms. If you do not agree to these Terms, then you have no right to access or use the Services.
We may, from time to time, modify these Terms. Please check this page periodically for updates. Any changes will be posted on the Services. If you do not agree to, or cannot comply with, the modified Terms, you must stop using the Services. The updated Terms will take effect after their posting and will apply on a going-forward basis, unless otherwise provided in a notice to you, and except as provided in the Mandatory Arbitration and Class Action Waiver section of these Terms. Your continued use of the Services after any such update constitutes your binding acceptance of such changes.
Additional terms may apply to your use of the Services. We will provide these terms to you or post them on the Services in connection with the features to which they apply; they are incorporated by reference into these Terms. For example, Purch’s Privacy Policy (which describes how we collect, use and disclose your data and your consent to such collection, use, and disclosure) are incorporated by reference and are a part of these Terms. If you participate in Purch Perks, you will also be subject to the Purch Perks Terms of Service. If there is a conflict between these Terms and any additional terms that apply to a particular feature of the Services, the additional terms will control, but only to the extent of the conflict.
1. ELIGIBILITY AND SCOPE
1.1 Eligibility. To use the Services you must be, and represent and warrant that you are, of legal age and competence. By using the Services on behalf of any third party, you are representing to us that you are an authorized representative of that third party and that your use of the Services constitutes that third party’s acceptance of these Terms. If you have been previously prohibited from accessing the Services by Purch, you are not permitted to access the Services.
1.2 Use Outside the United States of America. The Services are controlled and offered by Purch from the United States of America. Purch makes no representations that the Services are appropriate for use in other locations. Those who access or use the Services from other locations do so at their own risk and are responsible for compliance with local law.
2. ACCOUNT REGISTRATION; ACCOUNT USE
2.1 Account Registration and Confidentiality. If you create an account to use any of the Services, during the registration process, you must select a username and password. It is your responsibility to ensure that your password remains confidential. By registering, you agree that you will not allow others to use your account and that you are fully responsible for all activities that occur under your user name. We may assume that any communications we receive under your account have been made by you.
2.2 Unauthorized Account Use. You agree to notify Purch immediately of any unauthorized use of your account or any other breach of security. We will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by Purch or a third party due to someone else using your account.
2.3 No Obligation to Retain a Record of Your Account. Purch has no obligation to retain a record of your account or any data or information that you may have stored for your convenience by means of your account or the Services.
2.4 Purch Badges. In using the Services, you may have the opportunity to receive “badges” or “awards” for completing certain tasks or fulfilling certain requirements. You acknowledge that Purch has the right to award or revoke badges at any time with or without notice in its sole discretion, and to change its policies and procedures with respect to awarding badges. You acknowledge and agree that badges have no monetary value and cannot be traded or sold for any purposes.
3. OUR PROPRIETARY RIGHTS
3.1 Intellectual Property Rights. The Services are owned and operated by Purch and contain material which is derived in whole or in part from material supplied by Purch and its partners, as well as other sources, and is protected by United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. The Services are also protected as a collective work or compilation under U.S. copyright and other law and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Services. You acknowledge that the Services have been developed, compiled, prepared, revised, selected, and arranged by Purch and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of Purch and such others. You agree to protect the proprietary rights of Purch and all others having rights in the Services during and after the term of these Terms and to comply with all reasonable written requests made by Purch or its suppliers and licensors of content or otherwise (“Suppliers”) to protect their and others’ contractual, statutory, and common law rights in the Services. You agree to notify Purch immediately upon becoming aware of any unauthorized access or use of the Services by any individual or entity or of any claim that the Services infringe upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Services shall, as between you and Purch, at all times be and remain the sole and exclusive property of Purch.
3.2 Use of Marks. You may not use any of Purch’s trademarks, trade names, service marks, copyrights, or logos in any manner which creates the impression that such items belong to or are associated with you or, except as otherwise provided herein, are used with Purch’s consent, and you acknowledge that you have no ownership rights in or to any such items.
4. USER CONTENT AND FEEDBACK
4.1 User Content. The Services may enable you to submit, post, upload, or otherwise make available (collectively, “post”) content such as video clips, photographs, reviews, public messages, ideas, comments and other content (collectively, “User Content”) that may or may not be viewable by other users. You acknowledge and agree that all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom the User Content originated. You further agree that you have all required rights to post such User Content without violation of any third-party rights.
4.2 Our License to User Content. When you post User Content on or through the Services, you grant Purch a world-wide, perpetual, irrevocable, royalty-free, non-exclusive, and sub-licenseable license to use, copy, distribute, reproduce, modify, edit, adapt, publicly perform, publicly display, translate, create derivative works from, sell, lease, transmit, disassemble, and publish such User Content, in whole or in part, in any format or medium now known or developed in the future, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. You acknowledge and agree that your user name may be associated with any User Content that you post.
4.3 User Content Representations. You represent and warrant to us that you own or otherwise control all rights to any User Content you post on or through the Services. You agree that you will indemnify, defend, and hold harmless Purch for all claims resulting from User Content you post. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.
4.4 User Content Review. You acknowledge and agree that Purch and its designees may or may not, at Purch’s discretion, pre-screen User Content before its appearance on the Services, but that Purch has no obligation to do so. You further acknowledge and agree that Purch reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit or remove any User Content that is contributed to the Services. Without limiting the foregoing, Purch and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable in Purch ‘s sole discretion. You acknowledge and agree that Purch does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content. You understand that by using the Services, you may be exposed to User Content that you may consider offensive or objectionable. You also acknowledge that Purch is a provider of an interactive computing service as set forth the Communications Decency Act, 47 U.S.C. § 230. Purch expressly reserves its rights to not be treated as the publisher or speaker of any information provided by another information content provider on or through the Services.
Furthermore, you acknowledge and agree that if Services provide you with an opportunity to interact with a third party’s service, e.g., Facebook, Twitter, others, you agree to abide by that third party’s terms of service and privacy policy, and we encourage you to review such terms of service.
4.5 User Feedback. Any information provided to us by e-mail or other mediums, including but not limited to feedback, data, answers, questions, comments, suggestions, plans, ideas or the like, shall be deemed to be non-confidential, and we assume no obligation to protect such information from disclosure. The submission of such information to us shall in no way prevent the purchase, manufacture or use of similar products, services, plans and ideas by us for any purpose whatsoever, and we shall be free to reproduce, use, disclose and distribute the information to others without restriction.
5. LICENSE AND PROHIBITED CONDUCT
5.1 Your License. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable right to access and use the Services for your own personal use consistent with the Terms.
5.2 Prohibited Uses. Use of the Services for any illegal purpose, or any other purpose not expressly permitted in these Terms, is strictly prohibited. Without limitation, you will not:
- Post or otherwise provide User Content that harasses, abuses, or threatens any other person, or that contains obscene content;
- Post User Content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification;
- Post User Content that is unlawful, harmful, tortious, defamatory, libelous, or invasive of another’s privacy;
- Use the Services commercially (for example, as part of a service bureau), for benchmarking, or to compile information for a product or service;
- Copy, download (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), modify, distribute, post, transmit, display, perform, reproduce, broadcast, duplicate, publish, republish, upload, license, reverse engineer, create derivative works from, or offer for sale any content or other information contained on or obtained from or through the Services, by any means except as provided for in these Terms or with the prior written consent of Purch;
- Scrape, access, monitor, index, frame, link, or copy any content or information on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or any other method of access other than manually accessing the publicly-available portions of the Services through a browser or accessing the Services through any approved API;
- Violate the restrictions in any robot exclusion headers of the Services, if any, or bypass or circumvent other measures employed to prevent or limit access to the Services;
- Post material that advocates illegal activity or discusses illegal activities with the intent to commit them (in either case as determined by Purch in its sole discretion);
- Post or otherwise make available any material that contains any software, device, instructions, computer code, files, programs and/or other content or feature that is designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment (including without limitation any time bomb, virus, software lock, worm, self-destruction, drop-device, malicious logic, Trojan horse, trap door, “disabling,” “lock out,” “metering” device or any malicious code);
- Post or do anything that could disable, overburden, or impair the proper working of the Services;
- Post material that impedes or otherwise prohibits communication or disrupts user discussion;
- Post, utilize or otherwise make available any other party’s intellectual property unless you have the right to do so, or remove or alter any copyright, trademark or other proprietary notice contained on the Services;
- Post any trade secrets or other confidential or proprietary information, or post any material that you do not have a right to make available under any law or under contractual or fiduciary relationships, including but not limited to inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements;
- Falsely state or otherwise misrepresent your affiliation with a person or entity, or impersonate any person or entity in a manner that does not constitute parody;
- Through misrepresentation or otherwise, solicit personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords;
- Post spam or other advertisements or solicitations, promote commercial entities, or otherwise engage in commercial activity on or through the Services;
- Violate the law or encourage conduct that would constitute a criminal offense or give rise to civil liability;
- Frame, inline link, or similarly display the Services or any portion of the Services;
- Violate these Terms or any guidelines or policies posted by Purch;
- Facilitate violations of these Terms or the Privacy Policy; and/or
- Interfere with any other party’s use and enjoyment of the Services.
Purch reserves the right, in its sole and absolute discretion, to remove any User Content, block access to the Services, and/or cancel the account of any user.
6. LEGAL COMPLIANCE
You acknowledge, consent, and agree that Purch may access, preserve, and disclose your account information and/or any User Content you submit or make available for inclusion on the Services, if required to do so by law or in a good faith belief that such access, preservation, or disclosure is permitted by Purch’s Privacy Policy or reasonably necessary or appropriate for any of the following reasons: (1) to comply with legal process; (2) to enforce these Terms; (3) to respond to claims that any content violates the rights of third parties; (4) to protect the rights, property, or personal safety of Purch, its agents and affiliates, its users, and the public; or (5) to address your requests.
7. TERMS OF SALE
To the extent that you make a purchase of products offered by Purch on the Services, such purchase will be subject to separate terms of sale presented on the website or online service where the purchase is made.
8. WARRANTIES AND DISCLAIMERSYOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- THE WARRANTIES, IF ANY, APPLICABLE TO EACH PRODUCT AVAILABLE THROUGH THE SERVICES ARE PROVIDED BY THE MANUFACTURER OF SUCH PRODUCT. ALL PRODUCTS ARE MANUFACTURED BY THIRD PARTIES.
- YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND. PURCH 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, ACCURACY, TITLE, AND NON-INFRINGEMENT. PURCH ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO PROVIDE ANY CONTENT OR TO STORE ANY PERSONALIZATION SETTINGS OR USER MATERIALS.
- ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICES IS DOWNLOADED AND USED AT YOUR SOLE DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, SOFTWARE, TECHNOLOGY OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PURCH OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY.
- THE SERVICES DO NOT PROVIDE MEDICAL OR LEGAL ADVICE. CONSULT WITH YOUR DOCTOR REGARDING ALL ISSUES RELATING TO THE PREVENTION, DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION, AND WITH YOUR LEGAL COUNSEL REGARDING ANY LEGAL CONCERNS.
- PURCH MAKES NO REPRESENTATION, WARRANTY, GUARANTEE OR PROMISE THAT THE PRODUCTS OR SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY PARTICULAR RESULTS, INCLUDING EMPLOYMENT OPPORTUNITIES.
- PURCH WILL NOT BE RESPONSIBLE FOR ANY THIRD-PARTY CONTENT ON SERVICES, ANY LINKS TO THIRD-PARTY WEBSITES OR ANY THIRD-PARTY WEBSITES. PURCH DOES NOT VET OR VERIFY USERS THAT IDENTIFY THEMSELVES AS EXPERTS ON PARTICULAR TOPICS THROUGH THE SERVICES, AND YOU AGREE NOT TO HOLD PURCH RESPONSIBLE FOR RELIANCE ON SUCH EXPERTS IF YOU DO NOT ACHIEVE THE RESULT S YOU EXPECT IN RELYING ON SUCH EXPERTS.
- PACKAGING, LABELS AND INSTRUCTIONS MAY CONTAIN MANUFACTURER DISCLAIMERS AND LIMITATIONS OF LIABILITY THAT APPLY TO THE PRODUCTS YOU PURCHASE. PURCH MAKES ALL DISCLAIMERS IN THIS PARAGRAPH ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL PURCH, ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, OR REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING) (COLLECTIVELY “PURCH” FOR PURPOSES OF THIS SECTION) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM THE PERFORMANCE, USE OF OR THE INABILITY TO USE THE SERVICES OR PRODUCTS, EVEN IF PURCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF STATUTE OR OTHERWISE. PURCH WILL NOT BE LIABLE FOR THE COST OF REPLACEMENT PRODUCTS, LOSS OF REVENUE OR LOSS OF GOOD WILL. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT OR SERVICE TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT OR SERVICE, $100.
PURCH DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICE, AND PURCH WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. PURCH WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.
If you are a California resident, you hereby waive California Civil Code §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.” This release includes the criminal acts of others.
10. INDEMNITY
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD PURCH AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, OR REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING), HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS, MADE BY ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF YOUR USE OF THE SERVICES, YOUR CONNECTION TO THE SERVICES, YOUR VIOLATION OF THE TERMS OR PURCH PRIVACY POLICY, YOUR VIOLATION OF AN APPLICABLE LAW, YOUR SUBMISSION, POSTING, OR TRANSMISSION OF USER CONTENT TO THE SERVICES, AND/OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF SUCH DISPUTES, AND IN ANY EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
11. ADVERTISERS
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Purch shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on or through the Services.
12. THIRD-PARTY LINKS AND SERVICES
The Services may provide (1) information and content provided by third parties; (2) links to third-party websites or resources, such as sellers of goods and services; and (3) third-party products and services for sale directly to you. Please note that some of these links may be affiliate marketing links encoded by third party partners. This means that we may earn a commission when you click on or make purchases via affiliate links, and affiliate partners may use cookies to understand your use of the Services. For more information about our affiliate marketing practices, please see the Purch Advertising Disclosure. Purch is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that Purch 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 linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.
13. MODIFICATION AND TERMINATION
13.1 Modification of Services. Purch reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof), with or without notice. You agree that Purch shall not be liable to you or any third party for any modification, suspension or discontinuance of the Services.
13.2 Termination. These Terms are effective unless and until terminated by you or us. We may, in our sole and absolute discretion, deny you access to all or part of the Services at any time for any or no reason at all, with or without notice to you. Grounds for such termination shall include, but not be limited to, (a) breaches or violations of these Terms or other agreements, (b) requests by law enforcement or government agencies, (c) discontinuance or material modification of the Services (or any part thereof), (d) unexpected technical or security issues or problems, (e) extended periods of inactivity (f) activities related to protecting the rights, property or safety of Purch, its agents and affiliates, its users and the public; or (g) if you provide any information, including registration information, that is false, inaccurate, out-of-date, or incomplete. If we terminate for no reason your right to access the Services, we will fulfill our obligations to you related to any order outstanding at the time of termination. If you terminate your account, you will remain liable under these Terms for any purchase made prior to termination. If we terminate your right to access the Services, these Terms will terminate and all rights you have to access the Services will immediately terminate; however, certain provisions of these Terms will still apply post termination, including without limitation, the Mandatory Arbitration and Class Action Waiver provisions. Termination of your account may also include, at Purch’s sole discretion, the deletion of your account and/or User Content.
14. MANDATORY ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
14.1 Application. You and Purch agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 14 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
14.2 Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at storesupport@purch.com, and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Purch, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
14.3 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in section 14.7 below) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or your use of Purch shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.
14.4 Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
14.5 Filing a Demand. To start an arbitration, you must do the following: (a) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco California 94111; and (c) Send one copy of the Demand for Arbitration to us at Purch, Attn: Legal Department, 11 West 42nd Street, 15th Floor, New York, NY 10036.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Purch will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Purch will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. Arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration.
14.6 Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND PURCH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
14.7 Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
14.8 30-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to at storesupport@purch.com with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty days of your first use of the Services. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Purch also will not be bound by them.
14.9 Changes to This Section: Purch will provide thirty (30) days’ notice of any changes to this section by posting on the Services. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Services.
14.10 Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of Purch Perks.
15. Controlling Law and Severability
These Terms will be interpreted in accordance with the laws of the State of New York, without regard to its conflict-of-law provisions. If any part of these Terms is considered invalid, it shall be enforced as effectively as possible while all other provisions remain in full effect.
16. GENERAL TERMS
16.1 Force Majeure. Under no circumstances shall Purch or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
16.2 No Waiver; Severability. No waiver of any term of these Terms will be binding unless in writing, no waiver of any term of these Terms will be deemed a further or continuing waiver of such term or any other term, and the failure of Purch to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. If an arbitrator or a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.
16.3 Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
16.4 Miscellaneous. These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and Purch and govern your use of the Services, Services and products provided by Purch, and supersede any prior agreements between you and Purch on the subject matter. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by Purch without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of Purch. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. These Terms will not be construed against the drafter. “Include(s)” or “including” means, respectively, “include(s) without limitation” or “including without limitation”, unless expressly stated otherwise. If you are using the Services for or on behalf of the U.S. government, your license rights do not exceed those granted to non-government consumers. The section titles in these Terms are for convenience only and have no legal or contractual effect.
16.5 Notices. We may deliver notice to you by e-mail, posting a notice on the Services or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following physical or email address: (1) Purch, 11 West 42nd Street, 15th Floor, New York, NY 10036; or (2) storesupport@purch.com.
17. QUESTIONS
If you have any questions about these Terms, please contact us by email at storesupport@purch.com or call us at 1-866-648-2140.
Last Updated: January 24, 2017
