Saltwater Terms of Service and End User License Agreement

Welcome, and thank you for your interest in Saltwater Software Inc. d/b/a Saltwater Loyalty (“Saltwater,” “we,” or “us”) and our website at http://saltwaterloyalty.com/ and other services provided by us (collectively, the “Service”). These Saltwater Terms of Service and End User License Agreement are a legally binding contract between you and Saltwater regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY CLICKING “I ACCEPT” YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND, BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING SALTWATER’S PRIVACY POLICY (TOGETHER, THE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE.

 

1. Agreement Overview. As provided in greater detail in these Terms (and without limiting the express language of the Terms below), you agree and acknowledge that these Terms include the following provisions:

1.1 ARBITRATION — disputes arising hereunder will be resolved by binding arbitration, and BY ACCEPTING THESE TERMS, YOU AND SALTWATER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (As set forth in Section 17);

1.2 LICENSE — the Service is licensed, not sold to you, and you may use the Service only as set forth in these Terms. (As set forth in Section 6);

1.3 PRIVACY — you consent to the collection and use of certain of your personally identifiable information in accordance with Saltwater’s Privacy Policy (As set forth in Section 18.2).

1.4 NO WARRANTY — the Service is provided “AS IS” and “AS AVAILABLE” without warranties of any kind and Saltwater’s liability to you is limited. (As set forth in Sections 15 and 16);

 

2. Saltwater Service Overview. Saltwater’s Loyalty Program allows Merchants to offer loyalty rewards to their customers using Saltwater’s software platform. The rewards offered by Merchants may include: (1) a digital punch card (whereby you purchase a specified number of amount of products or services in order to receive a reward), (2) a reward points program (whereby you earn rewards by collecting a sufficient number of points from a Merchant), and (3) a cash discount program (where you receive a cash discount credited to your credit card if you purchase an applicable product or service with your registered credit card). Collectively defined as “Rewards.”

2.1 Loyalty Program. As a Saltwater Loyalty Service user, you will have access to Rewards by logging in to the Saltwater Loyalty website. Members must follow these steps: (1) members must provide a name, address, phone number or e-mail address, and as many Visa, American Express, or MasterCard credit or debit cards as they choose. Please log in to your account to learn more about our participating merchants and various promotions offered in your area. To Opt-out or unlink a previously linked card, please log in to your account and choose the “unlink card” option next to the card you wish to opt out of the program.

2.2 Card eligibility: Not all transactions with your registered Visa, MasterCard and American Express card are tracked by Visa, MasterCard and American Express. You acknowledge that Visa, MasterCard, and American Express may be unable to monitor every transaction made with your enrolled Visa, MasterCard, or American Express card, including PIN-based purchases, purchases you initiate through identification technology that substitutes for a PIN, payments made through other payment methods (such as a digital wallet or a third party payment app, where you may choose your Visa, MasterCard, or American Express card as a funding source but you do not present your card directly to the merchant), payments of existing balances, balance transfers, or transactions that are not processed or submitted through the Visa U.S.A., MasterCard, and American Express payment systems, and that these transactions are not eligible. Not all Visa cards are eligible for this Program. Without limitation, Visa Buxx, Flexible Spending Account (FSA) Visa cards, EBT Visa cards and other Visa-branded cards whose transactions are not processed through the Visa U.S.A. payment system are not eligible to participate. (2) Once selected cards are registered, members can begin shopping to earn Rewards when they use a registered card with a participating merchant (“Merchant”).

2.3 Transaction eligibility: Not all transactions made with your registered card (including PIN-based transactions, payment through a third-party digital wallet or payment app) can be monitored for eligibility to earn rewards. Do not use a PIN when making purchases if you want the transaction to be applied towards your offer completion.

2.4 Debit eligibility: If you register a debit card, your transaction must be processed as a ‘credit’ (i.e., signature) transaction to make sure the transaction can be monitored. Do not use a Personal Identification Number (PIN) when paying for your purchases with your enrolled card if you want the transaction to be eligible for rewards or offer completion.

2.5 Terms of Reward Offerings. All offers are subject to the terms and conditions as set out by our Merchants at the time of redemption.

a. In General. Descriptions of the Merchant offers advertised on the Service are provided by the Merchant or other referenced third parties. Saltwater does not investigate or vet Merchants. Saltwater is not responsible for any claims associated with the description of the Merchant offerings or products or services offered by Merchants (“Merchant Offerings”). Pricing relating to certain Merchant Offerings and other available programs on the Service may change at any time in Merchant’s sole discretion without notice.

b. Monitoring. All Merchant Offerings and Rewards are provided by participating Merchants. We are not responsible for these Merchant Offerings and Rewards and the terms under which they are made available. Moreover, we are under no obligation to edit or control any content that you, other users or the Merchants post or publish, and will not be in any way responsible or liable for any content. Saltwater may, however, at any time and without prior notice, screen, remove, edit, or block any content, Merchant, or Merchant Offering that in our sole judgment violates these Terms or is otherwise objectionable.

c. Reward Scheme. Rewards are offered by Merchants using the Saltwater Service and are redeemable for certain goods, services or experiences offered by, or facilitated through, the Merchant identified on the Reward. THESE REWARDS ARE NOT REDEEMABLE FOR CASH VALUE.

The Merchant is solely responsible for redeeming the Reward. Furthermore, the Merchant is fully and solely responsible for the care and quality of all goods and services it provides to you and for any and all injuries, illnesses, damages, claims, liabilities and costs (“Liabilities”) it may cause you to suffer, directly or indirectly, in full or in part, whether related to the use or redemption of a Reward or not. You waive and release Saltwater and its subsidiaries, affiliates, partners, officers, directors, employees and agents from any Liabilities arising from or related to any act or omission of a merchant in connection with your use of a reward.

By using or attempting to use any Reward, you agree specifically to the terms on the Reward offering and any additional Reward-specific terms advertised in connection with and on the Reward at the time of purchase and the Terms of Service.

 

3. Eligibility. You must be a U.S. resident and at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (i) you are at least 18 years old; (ii) you have not previously been suspended or removed from the Service; and (iii) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms. Your membership is non-transferable and you may only have one membership at a time. If we discover that you have multiple memberships in the Program, you will be deemed to be in violation of this Agreement and we reserve the right to terminate all such accounts.

 

4. Accounts and Registration. To access the features of the Service, you must register for an account. When you register for an account, you will be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at support@saltwaterloyalty.com.

 

5. Fees. This Reward program is not currently fee based for use, however Saltwater retains the right to enforce a fee structure in the future.

 

6. Licenses

6.1 Limited License. Subject to your complete and ongoing compliance with all the Terms, Saltwater grants you permission to access and use the Service for

6.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (i) reproduce, distribute, publicly display, or publicly perform the Service; (ii) make modifications to the Service; or (iii) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.

6.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Saltwater an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.

 

7. Ownership; Proprietary Rights. The Service is owned and operated by Saltwater. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Saltwater are protected by intellectual property and other laws. All Materials included in the Service are the property of Saltwater or our third-party licensors. Except as expressly authorized by Saltwater, you may not make use of the Materials, including for any commercial purpose. Saltwater reserves all rights to the Materials not granted expressly in these Terms.

 

8. Third-Party Terms

8.1 Carrier Service. Your access to use the Service may be subject to separate third party terms of service and fees, including your mobile network operator’s terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility.

8.2 Third Party Services and Linked Websites. The Service may contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.

 

9. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:

a. use the Service for any illegal purpose or in violation of any local, state, national, or international law;

b. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;

c. post, upload, or distribute any content that is unlawful, defamatory, libelous, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;

d. interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;

e. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) collecting personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;

f. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;

g. sell or otherwise transfer the access granted under these Terms or any Materials, or any right or ability to view, access, or use any Materials; or

h. attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this Section 9.

 

10. Digital Millennium Copyright Act

10.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:

Saltwater Software, Inc.
ATTN: Legal Department (Copyright Notification)
201 Wilshire Blvd. Second Floor, Santa Monica, CA 90401
Email: legal@saltwaterloyalty.com

Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must comply with elements of notification as described in 17 U.S.C. §512.

10.2 Repeat Infringers. Saltwater will promptly terminate the accounts of users that are determined by Saltwater to be repeat infringers.

 

11. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 11, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

 

12. Term, Termination and Modification of the Service

12.1 Term. These Terms are effective beginning when you accept the Terms or download, install, access or use the Service, and ending when terminated as set for in Section 12.

12.2 Termination. If you violate any provision of these Terms, your account and these Terms automatically terminate. In addition, Saltwater may, at its sole discretion, terminate these Terms, your account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by [describe termination process or] contacting customer service at support@saltwaterloyalty.com.

12.3 Effect of Termination. Upon termination of these Terms: (i) your license rights will terminate and you must immediately cease all use of the Service, and (ii) you will no longer have access to your account.

12.4 Modification of the Service. Saltwater reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.

 

13. Taxes. You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use, or withholding taxes) imposed on or in connection with these Terms or use of any Rewards.

 

14. Indemnity. You are responsible for your use of the Service, and, to the fullest extent permitted by law, you will defend and indemnify Saltwater and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Saltwater Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs (“Claims”) brought by a third party arising out of or connected with: (a) your use of, or misuse of, the Service not in compliance with these Terms; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those Claims.

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SALTWATER SOFTWARE, INC. AND ITS AFFILIATES, LICENSORS AND SUPPLIERS (INCLUDING PAYMENT CARD NETWORKS AND PAYMENT PROCESSORS) EXPRESSLY DISCLAIM ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SALTWATER SOFTWARE, INC. AND ITS AFFILIATES, LICENSORS AND SUPPLIERS (INCLUDING PAYMENT CARD NETWORKS AND PAYMENT PROCESSORS) DO NOT WARRANT THE DATA, CONTENT, ANALYTICS, FEATURES, OR INFORMATION PROVIDED THROUGH THE PROGRAM, INCLUDING WITHOUT LIMITATION TRANSACTION DATA OR USER SUBMISSIONS OR OTHER DATA PROVIDED BY OTHER USERS, TO BE UNINTERRUPTED, ACCURATE, USEFUL, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS.

UNDER NO CIRCUMSTANCES WILL SALTWATER SOFTWARE, INC. OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS (INCLUDING PAYMENT CARD NETWORKS OR PAYMENT PROCESSORS) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OR RELATED TO THE PROGRAM, EVEN IF PROGRAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT WILL SALTWATER SOFTWARE, INC. OR ITS AFFILIATES', CONTRACTORS', EMPLOYEES', AGENTS', OR THIRD PARTY PARTNERS' OR SUPPLIERS' ( INCLUDING PAYMENT CARD NETWORKS’ AND PAYMENT PROCESSORS’) TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE PROGRAM (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED $100.

 

15. Disclaimers; No Warranties

TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE, REWARDS, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, SALTWATER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, REWARDS, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TO THE FULLEST EXTENT PERMITTED BY LAW, SALTWATER DOES NOT WARRANT THAT THE SERVICE, REWARDS OR ANY PORTION OF OR THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR SALTWATER ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE SALTWATER ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, THE REWARDS AND YOUR DEALING WITH ANY MERCHANT. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE(S) USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THE MATERIALS OR CONTENT.

 

16. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE SALTWATER ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE, REWARDS, OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SALTWATER ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

EXCEPT AS PROVIDED IN SECTION 17.5(iii) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF SALTWATER ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE, REWARDS, OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

 

17. Dispute Resolution and Arbitration

17.1 Generally. In the interest of resolving disputes between you and Saltwater in the most expedient and cost effective manner, you and Saltwater agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND SALTWATER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, AND THAT THIS AGREEMENT WILL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.

17.2 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, mobile application, or to any aspect of your relationship with Saltwater, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify,; and (2) you or Saltwater may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.

17.3 Arbitrator. Any arbitration between you and Saltwater will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Saltwater

17.4 The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

17.5 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or electronic mail (“Notice”). Saltwater’s address for Notice is: Saltwater Software, Inc., 201 Wilshire Blvd. Second Floor, Santa Monica, CA 90401, or legal@saltwaterloyalty. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Saltwater may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Saltwater must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Saltwater will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Saltwater in settlement of the dispute prior to the arbitrator’s award; or (iii) $15,000.

17.6 Fees. If you commence arbitration in accordance with these Terms, Saltwater will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Saltwater for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

17.7 No Class Actions. YOU AND SALTWATER 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. Further, unless both you and Saltwater agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

17.8 Modifications to this Arbitration Provision. If Saltwater makes any future change to this arbitration provision, other than a change to Saltwater’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Saltwater’s address for Notice, in which case your account with Saltwater will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

17.9 Enforceability. If Section 17.7 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void.

 

18. General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Saltwater regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

18.1 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Saltwater submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.

18.2 Privacy Policy. Please read the Saltwater Privacy Policy carefully for information relating to our collection, use, storage, disclosure of your personal information. The Saltwater Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

18.3 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

18.4 Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

18.5 Consent to SMS Communications. By providing your mobile phone number and opting to receive SMS text messages, you hereby authorize Saltwater to contact you by text message. To stop receiving text messages at your mobile number, please reply “STOP.” Standard text messaging charges may apply.

18.6 Contact Information. The Service is offered by Saltwater Software, Inc. located at 201 Wilshire Blvd. Second Floor, Santa Monica, CA 90401. You may contact us by sending correspondence to that address or by emailing us at support@saltwaterloyalty.com. You can access a copy of these Terms by clicking here: http://saltwaterloyalty.com/terms-of-service.php

18.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S¬202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.

 

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