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Welcome, and thank you for your interest in www. clipkard. com, owned and operated by ClipKard LLC, a New Jersey corporation ("ClipKard", "us" or "we"), and our services made available to you (the "user" or "you") through our website (the "Website" or the "Site") and any online applications or mobile application and tools (the "Apps") which we may provide to you. The Website and the Apps together constitute our service ("the Service"). Unless otherwise specified, all references to the Services include the services available through the ClipKard Website or mobile App, as well as any software that ClipKard provides to you that allows you to access the Services. The following Terms of Service are a legally binding contract between you and ClipKard regarding your use of the Service.
Please read the following Terms of Service ("Terms") carefully before accessing or using any of the Service. Each time you access or use the Service, you agree to be bound by these Terms. If you do not agree to be bound by all of these Terms, you may not access or use the Service.
In addition, certain areas of the Service may be subject to additional Terms of Service that we make available for your review. By using such areas, or any part thereof, you are expressly indicating that you have read and agree to be bound by the additional Terms of Service applicable to such areas. In the event that any of the additional Terms of Service governing such area conflict with these Terms, the additional terms will control.
PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER PROVISIONS IN THE DISPUTE RESOLUTION SECTION OF THESE TERMS. IT AFFECTS HOW DISPUTES ARE RESOLVED.
1. Eligibility for Our Service
By using our Services, you represent that you are at least 18 years old and are fully able and competent to enter into a contract, including the terms, conditions, representations and warranties set forth in these Terms. If you are not 18 years of age or older, you may not use our Services.
2. Description of Service
a. ClipKard is a gift card marketplace allowing users to sell their gift cards to ClipKard or purchase currently available gift cards from ClipKard.
b. When we refer to the term "gift card(s)" or "card(s) in these Terms or on our Website, App or Services it includes, without limitation, physical plastic cards, paper gift certificates and gift card numbers (with or without pin numbers) in a digital form, all of which at the time of sale, are accepted by the issuing retailer in the form they are sold. These may have been originally purchased for personal use or for gifts, issued as a refund for returned merchandise, issued as a merchandise credit or for any other reason provided by the merchant.
c. The Service include (a) ClipKard systems, procedures, processes and technologies, and (b) any hardware, software, applications, data, reports, and other content made available by or on behalf of ClipKard that allows you to purchase or sell gift cards.
d. The Service does not include your User Content as defined in this Agreement or any software application or service that is provided by you or a third party, which you use in connection with the Service. Any modifications and new features added to the Service are also subject to this Agreement.
e. ClipKard reserves the right to modify or discontinue the Service or any feature or functionality thereof at any time without notice or liability to you. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to ClipKard.
3. Your Access and Use of our Services
a. Your right to access and use our Services is personal to you and is not transferable by you to any other person or entity. Access to our Services may not be available in all locations. You are only entitled to access and use our Services for lawful purposes and pursuant to the terms and conditions of this Agreement and ourPrivacy Policy. Any action by you that, in our sole discretion: (i) violates the terms and conditions of this Agreement and/or the Privacy Policy; (ii) restricts, inhibits or prevents any access, use or enjoyment of our Services; or (iii) through the use of our Services, defames, abuses, harasses, offends or threatens, shall not be permitted, and may result in your loss of the right to access and use our Services.
b. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive Service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to these Terms.
c. Furthermore, you agree that you will not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor our Services or any portion of our Services or for any other purpose, without our prior written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for your personal information) from our Services without our prior written permission and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of our Services or any activities conducted on our Services; (iv) bypass any robot exclusion headers or other measures we may use to prevent or restrict access to our Services, or (v) interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature.
d. Except as expressly permitted in this Agreement, you shall not collect or harvest any personally identifiable information, including account names, from our Services.
e. Our Services may now, or in the future, have "publicly accessible areas" that allow users to post User Content, as defined hereafter, that will be accessible by the public or the user population generally. As a user of the Services, you acknowledge and affirmatively agree that in the course of using the Services you may be exposed to User Content that might be offensive, harmful, inaccurate or otherwise inappropriate. You further agree that ClipKard shall not, under any circumstances, be liable in any way for any User Content.
f. You understand that ClipKard may issue upgrade versions of any mobile App and you consent to receiving automatic upgrades on your mobile device. You also acknowledge and agree that standard carrier data charges may apply to your use of the App.
g. You shall not use any communication systems provided on our Services (such as communities, forums or email) for any commercial or solicitation purposes. You shall not solicit for commercial purposes any users of our Services without our prior written permission.
4. Orders
Please follow the instructions on the Site to place your orders. Your order constitutes an offer to us to buy the gift card(s). We reserve the right at any time to accept or decline any order or partial order, or not to ship to particular addresses. We reserve the right to cancel your order at any time before we have accepted it and we may rescind our acceptance and cancel your order where there has been an obvious error in price, suspected fraud or where the gift card(s) are no longer in our inventory. We reserve the right at any time to limit the quantities ordered.
5. Billing and Payment
You expressly authorize ClipKard, and its third party payment processor, to charge the amounts indicated on your purchase order. The terms of your payment method may be determined by agreements between you and the financial institution you have chosen to make payment. If ClipKard does not receive payment through your chosen method, you agree that we may start collection action and that you will be liable for any collection costs and fees including reasonable attorney fees.
6. Shipping
a. The Shipping method for gift cards is determined by the type of gift card purchased. Physical cards will be shipped free of charge using the USPS or a third party carrier that we choose.
b. Cards we sell may be shipped to the purchaser by USPS Priority Mail Service upon request at the expense of the purchaser and not ClipKard.
c. Cards ClipKard purchase may be shipped to ClipKard using USPS Priority Mail Service upon request at the expense of the seller; ClipKard will furnish the seller with the shipping label without insurance.
d. Electronic and printable gift cards will be delivered to the purchaser's ClipKard account. Users must login to their account to be able to print gift cards, or view a gift card number and pin for use.
e. All physical card orders will be shipped to an address designated by the purchaser as long as that shipping address meets any shipping restrictions contained on our Site or in our App.
f. ClipKard is not responsible or liable for delays caused by the USPS or a third party carrier.
g. ClipKard is not responsible for shipment to the wrong address if you have failed to update your ClipKard account registration with your new shipping address.
h. All purchases are subject to the carrier shipment contract and are F. O. B ClipKard facilities. All risk of loss, damage and title for gift cards purchased from ClipKard passes to the purchaser upon our delivery of the items to the USPS or the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.
i. Users selling their gift cards to ClipKard retain the risk of loss of the card until it is physically received by ClipKard.
7. Reward Points
ClipKard offers promotional reward points to users, but reserves the right to cancel any rewards point program, promotion codes or discount coupons at any time without notice or liability to you. Our rewards point program is explained here www. clipkard. com/rewards
8. Selling a Gift Card to ClipKard
a. When you present us with an offer to sell your gift card, ClipKard may make you a purchase offer based on gift card brand and the balance of that gift card. If you accept the offer, you will be required to ship the card to us before payment for the card is issued.
b. Upon receiving the cards, we will perform a validation of the card and if the card meets the validation requirements, ClipKard will issue payment to the seller using one of the payment methods we make available to you and that you accept.
c. Users of our Services for the purpose of selling one or more gift cards hereby represent and warrant to ClipKard that:
i. You are the owner of the gift card;
ii. The gift card is genuine (not fraudulent) and redeemable from the merchant for the amount of credit you represent to us;
iii. That you have not in any way reduced the gift card balance after transferring it to us; and,
iv. You will comply with all other terms of the sale to complete the gift card purchase transaction.
d. You agree that in the event that a card you sold to ClipKard is fraudulent, or otherwise not as represented by you at the time of the sale in the sole judgment of ClipKard, you will be charged and agree to pay us a sum equal to the amount we paid you for the card at the time of the sale, plus an administrative processing fee of $10 per card.
9. Purchasing a Gift Card from ClipKard
a. When you purchase a gift card from ClipKard you agree that you will pay for the purchase using one of the payment methods we make available to you before the card is shipped.
b. You agree that you will be responsible for, and pay any applicable taxes or duties associated with the sale of the card.
c. A gift card once delivered is not eligible for return except for the following reasons:
i. Gift card balance is not equal to the balance indicated when sold.
ii. Gift cards delivered is a different brand than ordered.
d. Orders cannot be canceled once the order has been placed.
e. ClipKard will not make any changes to shipping address after the order has been placed.
f. ClipKard is not responsible for any incorrect shipping information.
10. Our 60 Day Guarantee Policy
ClipKard will refund the purchase price of a gift card purchased from us, less any savings or discount the buyer received, for the following reasons:
a. Gift cards that are not active.
b. Gift cards with an inaccurate balance.
c. Gift cards delivered as a different brand than ordered.
d. Gift cards not received within 30 days from the date of purchase.
e. Gift card purchased is discovered to be invalid or declined.
The following are not included in our 60 day Guarantee Policy:
a. Guarantee requests received after the guarantee time expires.
b. Purchaser changes mind.
c. Purchaser 's failure to understand the gift card delivery method or delivery time.
d. Purchaser 's failure to understand how a particular gift card is redeemed.
e. Purchaser lost or misplaced Cards.
f. Gift cards that are resold on any platform other than our site.
g. Gift cards that are no longer honored when a retailer goes out of business or files for bankruptcy.
h. Purchaser fails to follow the written procedures that we provide for returning the Gift Card or claiming a refund
i. Failing to apply a promotional code before a purchase.
ClipKard reserves the right to terminate or suspend the account of any Purchaser or Seller that, in our sole discretion, we believe has abused or has attempted to abuse the ClipKard 60 Day Guarantee. We will report any such abuse to the appropriate legal authorities.
11. Returns
a. Gift cards sold by ClipKard, if eligible for return according to the terms of this agreement, must meet the following conditions for a refund to be issued: i) the gift card is returned in the same condition as it was delivered to customer; ii) the gift card has not been used by the customer after it was purchased from ClipKard. ; and iii) the gift card must be redeemed for the same value that you state in your claim for the refund.
b. Gift cards sent by a seller to ClipkKard for verification and potential purchase, which are not accepted for purchase by ClipKard, will be returned to the seller using a carrier chosen by ClipKard in its sole discretion, and the risk of loss for the gift card transfers to the seller upon delivery by ClipKard of the gift card to the carrier.
12. Verification; Fraud Prevention
ClipKard reserves the right, but is not under any obligation, to verify the identity and the location of any user of the Service to prevent fraud or abuse of our Services. This verification process may utilize the services of third parties that we engage to perform the verification and the use of your mobile carrier subscriber details. You authorize ClipKard to perform this verification. Please see our Privacy Policy for more details on how we protect your information.
13. Information Accuracy
a. We attempt to ensure that information on this Service is complete, accurate and current. Despite our best efforts, the information on our Service may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy, or currency of any information on the Service. All gift card descriptions, features, specifications, and prices of the gift cards described on the Service are subject to change at any time without notice.
b. Furthermore, information on the Service may contain typographical errors, inaccuracies, or omissions that may relate to gift card descriptions, pricing, and availability. We reserve the right to correct or make changes in such information without notice and cancel orders placed for gift cards listed incorrectly or at the wrong price.
14. Proprietary Rights
As between ClipKard and you, ClipKard or its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with these Terms. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by ClipKard.
15. Intellectual Property Rights
a. The ClipKard name and our graphics, videos, logos, page headers, button icons, scripts, and service names are our trademarks or trade dress in the United States and/or other countries (collectively, the "Proprietary Marks"), and are owned by ClipKard. You may not use the Proprietary Marks without our prior written permission.
b. We make no proprietary claim to any third-party names, trademarks or service marks appearing on our Services including, without limitation, those of the gift cards we buy and sell. Any third-party names, trademarks, and service marks are property of their respective owners.
c. The information, advice, data, software and content viewable on, contained in, or downloadable from our Services (collectively, "Our Content") including, without limitation, all text, graphics, charts, pictures, photographs, images, videos, line art, icons and renditions, are copyrighted by, or otherwise licensed to us or Our Content suppliers.
d. We also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of Our Content (the "Collective Work").
e. All software used on or within our Services is our property or the property of our software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using Our Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to Our Content, the Collective Work, or the Software.
f. You are solely responsible for any damages resulting from your infringement of our, or any third-party, intellectual property rights regarding the Trademarks, Our Content, the Collective Work, the Software and/or any other harm incurred by us or our affiliates as a direct or indirect result of your copying, distributing, redistributing, transmitting, publishing or using the same for purposes that are contrary to the terms and conditions of this Agreement.
16. Use of Our Content
a. We grant you a limited license to access, print, download or otherwise make personal use of Our Content and the Collective Work for your noncommercial personal use provided, however, that you shall not delete any proprietary notices, trademarks, copyright notices, or materials with regard to the foregoing.
b. You may not modify Our Content or the Collective Work or utilize them for any commercial purpose or any other public display, performance, sale, or rental, decompile, reverse engineer, or disassemble Our Content and the Collective Work, or transfer Our Content or the Collective Work to another person or entity.
17. Software
a. If you receive software from us, its use is governed in one of two ways: If you're presented with license terms that you must accept in order to use the software, those terms apply; if no license is presented to you, these Terms apply. We reserve all other rights to the software.
b. Any license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by ClipKard, in the manner permitted by these terms. You may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of that software.
c. We may automatically check your version of the software. We may also automatically download to your device or computer new versions of the software.
d. Any software is licensed, not sold. Unless we notify you otherwise, the software license ends when your Service ends. You must then promptly uninstall the software, or we may disable it. You must not work around any technical limitations in the software.
e. The software is subject to applicable U. S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users, and end use. Without limitation, you may not transfer the software or Service without U. S. government permission to anyone on U. S. government exclusion lists. You represent and warrant that you're not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.
18. Accounts and Registration
a. To access some features of the Service you will be required to register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your e-mail address, physical address, mobile phone number, method of payment or other contact information). You may also be required to provide us with information about you, which may be of a confidential nature and may include personal identifying information and/or financial information ("Your Information").
b. If you provide Your Information to us then you agree to provide true, current, complete and accurate information, and not to misrepresent your identity. You also agree to keep Your Information current and to update Your Information if any of Your Information changes.
c. ClipKard reserves the right in its sole and exclusive discretion, and without notice or liability to you, to terminate a users account if we determine that false or misleading information has been provided to us, you have engaged in fraudulent conduct with regard to our Services or these Terms have otherwise been breached by you.
d. Our collection, use and disclosure of Your Information is governed by this Agreement and our Privacy Policy.
19. Account Management
a. Keep Your Password Secure. If you have been issued an account by ClipKard in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not ClipKard, are responsible for any activity occurring in your account, whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify ClipKard immediately. Accounts may not be shared and may only be used by one individual per account.
b. ClipKard will ship electronic and printable gift cards directly to your account. If these gift cards and their pin numbers are retrieved by an unauthorized user, or are otherwise compromised, you and not ClipKard are liable for any loss that you experience.
c. Keep Your Details Accurate. ClipKard occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate.
20. Suspension and Termination of Services
a. We reserve the right to modify, suspend or terminate the Service or your access to the Service for any reason, without notice, at any time, and without liability to you.
b. You can deactivate your account at anytime. Upon termination or deactivation, all licenses and other rights granted to you in these Terms will immediately cease. To deactivate your account please send your request to support@clipkard. com.
c. We reserve the right to refuse access to the service to anyone for any reason at any time.
21. Interruption of Service
a. Your access and use of our Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of our Services or other actions that we, in our sole discretion, may elect to take.
b. You agree that we will not be liable to you or to any third party for any interruption of the Services or any part thereof.
22. Third Party Links, Services and Content
a. The Website, App and Services may contain features, functionalities and services linking you to, or providing you with, certain access to third party services and content, websites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. Because we have no control over such sites and resources, we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on, or available from, such sites or resources. When you visit or use a third party's website you agree to read and consent to the third party's Terms of Service and Privacy Policy and you release us from any liability.
b. You acknowledge that we are not responsible for such third party content or services and that we are not an agent of any third party, nor are we a direct party in any such transaction with a third party. Any such activities, and any terms associated with such activities, are solely between you and the applicable third party. Should you have any problems resulting from your use of any third party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we will not be responsible unless the problem was the direct result of our actions.
23. Electronic Communications
a. When you use our Services or send email to us, you are communicating with us electronically. You consent to receive communications from us electronically. Although we may choose to communicate with you by regular mail, we may also choose to communicate with you by email or by posting notices on our Services.
b. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
24. Electronic Transactions
a. Your use of the services includes the ability to enter into agreements and/or to make transactions electronically including, without limitation, in-application purchases and other financial transaction. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by such agreements and transactions.
b. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on this site, including in-application purchases, financial transactions, notices of cancellation, policies, contracts, and applications.
c. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
25. User Content Rights and Related Responsibilities; License
a. "User Content" means, without limitation, any messages, texts, digital files, images, photos, artwork, videos, audio, comments, feedback, suggestions, reviews and documents, or other content you upload, transmit or otherwise make available to ClipKard and its users via the Services.
b. By submitting User Content on or through the Service, you grant ClipKard a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such User Content.
c. In order for us to provide the Service to you, we require that you grant us certain rights with respect to User Content, including the ability to transmit, manipulate, process, store and copy User Content in order to provide our Services. Your acceptance of this Agreement gives us the permission to do so and grants us any such rights necessary to provide the Service to you.
d. You agree that any User Content you submit to our Service may be viewed by other users, any person visiting or participating in the Service and by the public in general.
e. ClipKard expressly disclaims any liability for the loss or damage to any User Content or any losses or damages you incur as a result of the loss or damage of any User Content. It is your responsibility to back-up any User Content to prevent it's loss.
f. You are solely responsible for your User Content, including, without limitation, reviews, comments and feedback. ClipKard may remove or return any User Content at any time for any reason or for no reason at all. We are not responsible for the authenticity, accuracy, appropriateness, or legality of User Content.
g. You represent and warrant that all information that you submit is authentic, accurate and truthful and that you will promptly update any information provided by you that subsequently becomes inaccurate, misleading or false.
h. You agree not to post as part of the Service any offensive, inaccurate, incomplete, abusive, obscene, profane, threatening, intimidating, harassing, racially offensive, or illegal content or material.
26. Security
Violating the security of our Site is prohibited and may result in criminal and civil liability. ClipKard may investigate incidents involving such violations and may involve, and will cooperate with law, enforcement if a criminal violation is suspected. Security violations include, without limitation, unauthorized access to or use of data or systems including any attempt to probe, scan, or test the vulnerability of the Service or Site or to breach security or authentication measures, unauthorized monitoring of data or traffic and interference with service to any user, host, or network.
27. Privacy and Your Personal Information
For information about the ClipKard data protection practices and privacy policies, please read our Privacy Policy where you accessed these Terms of Service. This policy explains how we treat your personal information, and protect your privacy when you use the Services. You agree to the use of your data in accordance with ClipKard Privacy Policy.
28. Copyright Policy
We respect the intellectual property rights of others. We reserve the right to remove any User Content on the Services which allegedly infringes another person's copyright and/or terminate, discontinue, suspend and/or restrict the account or ability to visit and/or use the Services or remove, edit, or disable any User Content on the Services which allegedly infringes another person's copyright. We provide this policy pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act ("DMCA").
A valid complaint under the DMCA must provide the following information in writing:
a. An electronic or physical signature of a person authorized to act on behalf of the copyright owner.
b. Identification of the copyrighted work that you claim has been infringed.
c. Identification of the material that is claimed to be infringing and where it is located on the Service.
d. Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, email address.
e. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law.
f. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
FEDERAL LAW PROVIDES THAT IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES.
The above information must be submitted to the following DMCA Agent:
Email: support@www. clipkard. com
29. Disclaimers; No Warranties
a. OUR CONTENT AND ALL SERVICES ARE PROVIDED TO YOU ON AN "AS-IS" AND "AS AVAILABLE" BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF OUR SERVICES OR THE INFORMATION, CONTENT, MATERIALS OR SERVICES INCLUDED ON OR ASSOCIATED WITH OUR SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF OUR SERVICES AND ALL PRODUCTS AND SERVICES INCLUDED ON OR ASSOCIATED WITH OUR SERVICES IS AT YOUR SOLE RISK.
b. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES LISTED OR PURCHASED ON OR THROUGH THIS WEBSITE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION.
c. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THIRD-PARTY SERVICE PROVIDERS THAT WE MAY USE IN THE OPERATION, PROCESSING AND ADMINISTRATION OF THE SERVICES.
d. WE DO NOT MAKE, AND EXPRESSLY DISCLAIM, ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE SECURITY, ACCURACY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES, OR THE SAFETY, RELIABILITY, TITLE, TIMELINESS, COMPLETENESS, MERCHANTABILITY, CONFORMITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES.
e. WE MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE FOR DOWNLOADING FROM OUR SERVICES IS FREE OF INFECTION FROM ANY VIRUSES, MALICIOUS SOFTWARE OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
f. WE MAKE NO REPRESENTATIONS THAT OUR SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN ANY JURISDICTIONS. WHEN YOU ACCESS OR USE OUR SERVICES FROM A JURISDICTION, THEN YOU DO SO BY YOUR OWN VOLITION AND ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
g. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
30. Limitations of Liability
a. IN NO EVENT SHALL WE BE RESPONSIBLE TO, OR LIABLE TO, YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (II) YOUR ACCESS AND USE OF OUR SERVICES; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE OUR SERVICES FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF OUR CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; (V) YOUR RELIANCE UPON OR USE OF OUR CONTENT OR THE COLLECTIVE WORK, OR (VI) ANY DIGITAL DATA, IMAGES, PHOTOS, ARTWORK, VIDEOS, AUDIO, DOCUMENTS, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED THROUGH OUR SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF OUR SERVICES, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
b. THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE WEBSITE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE WEBSITE SERVICE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE WEBSITE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE WEBSITE SERVICE. THIS LIMITATION SHALL ALSO APPLY TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE WEBSITE SERVICE OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE WEBSITE SERVICE.
c. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND THEIR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS OR NON-PERFORMANCE OF THIRD PARTIES.
d. OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, SHAREHOLDERS, REPRESENTATIVES, AND AGENTS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED $100.
e. YOU SPECIFICALLY ACKNOWLEDGE THAT WE SHALL NOT BE LIABLE FOR USER GENERATED CONTENT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM SUCH USER GENERATED CONTENT AND THIRD-PARTY CONDUCT RESTS ENTIRELY WITH YOU.
f. YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO OUR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
g. CERTAIN STATE OR JURISDICTIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
31. Indemnity
a. You agree that you will be personally responsible for your use of the Service, and you agree to defend, indemnify and hold harmless ClipKard and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys' and accounting fees and costs, arising out of or in any way connected with (i) your access to, use of or alleged use of the Service; (ii) your violation of these Terms of Service or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party.
b. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
32. Release
a. By using the Services, the Site or the App, you release, to the maximum extent allowed by law, ClipKard, its officers, directors, employees, affiliates, and agents from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your use of the Services, the Site or the App, and any transaction effected through the Services, the Site or the App.
b. If you are a California resident, you 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. "
33. Our Remedies
a. You acknowledge that we may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement.
b. For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the courts of record of the State of New Jersey, or a United States District Court for the State of New Jersey. You consent to the jurisdiction of such court and waive any objection to the venue of any such action or proceeding in such court.
34. Dispute Resolution
THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. THIS AGREEMENT ALSO CONTAINS AN AGREEMENT THAT YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICE. EACH TIME YOU ACCESS OR USE THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE MANDATORY ARBITRATION PROVISION AND THE CLASS ACTION WAIVER YOU MAY NOT ACCESS OR USE THE SERVICE.
For any dispute you have with ClipKard, you agree to first contact us at support@clipkard.com and attempt to resolve the dispute with us informally. If ClipKard has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy as follows:
a. You and we agree that any claim or dispute at law or equity between us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to the Services will be resolved in accordance with the provisions set forth in this Legal Disputes section. Please read this section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
b. Applicable Law. You agree that the laws of the State of New Jersey, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and us, except as otherwise stated in this Agreement.
c. Agreement to Arbitrate. You and we each agree that any and all disputes or claims between you and us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to our Services, or any products or services delivered, sold, offered, or purchased through our Services shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify.
d. Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OUR OTHER USERS.
e. Arbitration Procedures. Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this Agreement as a court would. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of this Agreement including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or this Agreement is void or voidable. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The arbitrator will decide the substance of all claims in accordance with the laws of the State of New Jersey, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving our other users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
f. Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in the State of New Jersey. You and we agree to submit to the personal jurisdiction of the courts located within New Jersey for the purpose of litigating all such claims or disputes. You also agree that: (i) our Services shall be deemed solely based in the State of New Jersey; and (ii) our Services shall be deemed passive Services that do not give rise to personal jurisdiction over us and our assigns, either specific or general, in jurisdictions other than the State of New Jersey.
35. Law Enforcement
a. ClipKard is committed to cooperating with law enforcement while respecting each individual's right to privacy. If ClipKard receives a request for user account information from a government agency investigating criminal activity, we will review the request to be certain that it satisfies all legal requirements before releasing information to the requesting agency.
b. Furthermore, under 18 U. S. C. §§ 2702(b)(8) and 2702(c)(4) (Voluntary Disclosure Of Customer Communications or Records), ClipKard may disclose user account information to law enforcement, without a subpoena, court order, or search warrant, in response to a valid emergency when we believe that doing so is necessary to prevent death or serious physical harm to someone. ClipKard will not release more information than it prudently believes is necessary to prevent harm in an emergency situation.
36. Amendments to this Agreement
We reserve the right to update, amend and/or change this Agreement at any time in our sole discretion and without notice. Updates to this Agreement will be posted here. Amendments will take effect immediately upon us posting the updated Agreement on our Services. You are encouraged to revisit this Agreement from time to time in order to review any changes that have been made. The date on which this Agreement was last updated will be noted immediately below this Agreement. Your continued access and use of our Services following the posting of any such changes shall automatically be deemed your acceptance of all changes.
Miscellaneous
37. Severability
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
38. No Waiver
Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.
39. Survival
All covenants, agreements, representations and warranties made in this Agreement, as may be amended by us, from time to time, shall survive your acceptance of this Agreement and the termination of this Agreement.
40. Entire Understanding
This Agreement and thePrivacy Policy represent the entire understanding and agreement between you and us regarding the subject matter of the same, and supersede all other previous agreements, understandings and/or representations regarding the same.
If you have questions, comments, concerns or feedback regarding this Agreement or our Services, please contact us at support@clipkard. com.
Last updated: June 1, 2017
