Terms of Use

POINTSKASH TERMS OF USE

 

Effective Date: September 19, 2022

Welcome, and thank you for your interest in PointsKash, Inc. (“PK”). The following Terms of Use, together with PK’s Privacy Policy are a legally binding contract between you and PK regarding your use of PK’s website, mobile applications, networks, and other related features or services (collectively, the “Services”).

PLEASE READ THE FOLLOWING TERMS OF USE CAREFULLY. BY REGISTERING FOR AN ACCOUNT, DOWNLOADING A PK MOBILE APPLICATION, DOWNLOADING AN PK BROWSER EXTENSION, ACCESSING, BROWSING, OR OTHERWISE USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE PK PRIVACY POLICY, ANY APPLICABLE END USER LICENSE AGREEMENT, AND ANY ADDITIONAL TERMS OR FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS”).

If you are not eligible, or do not agree to all of the Terms, then please do not use the Services.

 

1. Eligibility.

You must be at least eighteen (18) years old to use the Services and must be at least 21 years old to redeem Offers with alcoholic beverages on the Services. You also must be located in the United States or Puerto Rico when using the Services. By agreeing to the Terms, you represent and warrant to us: (i) that you are at least eighteen (18) years old; (ii) that you will not redeem Offers with alcoholic beverages until you are at least 21 years old; (iii) that you are using the Services only when located in the United States or Puerto Rico; (iv) that you have not previously been suspended, removed, or deactivated from the Services; and (v) that your registration and your use of the Services is in compliance with any and all applicable laws, rules and regulations, codified or otherwise. Any breach of these representations may result in PK revoking your permission to use the Services and any rights you have to the Rewards in your account may terminate, pursuant to Section 16 of these Terms. If you are using the Services on behalf of an entity, organization, or company (collectively “Subscribing Organization”), you represent and warrant to us that you are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms; and you agree to be bound by these Terms on behalf of such Subscribing Organization. In such a case, “you” in these Terms refers to your Subscribing Organization, and any individual authorized to use the Services on behalf of the Subscribing Organization, including you.

2. Privacy Policy; End User License Agreement; Additional Terms

 

PRIVACY POLICY.

 

Please read the PK Privacy Policy carefully for information relating to our collection, use, and disclosure of your information. The PK Privacy Policy is hereby incorporated by reference into, and made a part of, these Terms. (See https://pointskash.com/privacypolicy/)

 

END USER LICENSE AGREEMENT.

 

Your use of any mobile application, or other downloadable software we may provide (each, an “App”) may be subject to an End User License Agreement. The applicable End User License Agreement depends on the platform on which the App is designed to run and the features of the App. The End User License Agreement will be presented to you when you download and/or install the App and will be accessible through the App. Apps are deemed part of the Services, and all such End User License Agreements are hereby incorporated into, and made a part of, the Terms by reference.

 

ADDITIONAL TERMS.

 

Your use of the Services is subject to any additional terms, rules, or guidelines applicable to certain services and features, third- party or otherwise, which we may post from time to time (the “Additional Terms”). All such Additional Terms are hereby incorporated by reference into, and made a part of, the Terms.

 

3. Modification of the Terms.

 

We reserve the right, at our discretion, to change the Terms on a going forward basis at any time. Please check the Terms periodically for changes. Your continued use of the Services after the changes become effective constitutes your binding acceptance of such changes. In the event that a change to the Terms materially modifies your rights or obligations, we will make an effort to notify you of the change at least fifteen days prior to the effective date of such change, such as by sending you an email to the email address we have on file for you, or presenting a pop-up window or other notification to you through the Services when you log in, and we may require that you accept the modified Terms in order to continue to use the Services. Immaterial modifications are effective immediately upon publication, and material changes will be effective upon the earlier of (a) continued use of the Services with actual knowledge of the modification, or (b) fifteen (15) days following the change. However, modifications addressing new functions of the Services or modifications made for legal reasons will be effective immediately. For the avoidance of doubt, disputes arising hereunder will be resolved in accordance with the Terms in effect that the time the dispute arose.

4. Accounts and Registration.

To access most features of the Services you must register for a PK account. When you register for an account, you may be required to provide us with some information about yourself (such as your email address or other contact information). You agree that the information you provide to us is and will be 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. You also agree to use one or more of the following multi-factor authentication methods in order to provide further security to your account: (i) phone number, (ii) email address, or (iii) such other method as may be offered by PK in its sole discretion. If you are accessing your PK account from a new device (or if you are logging in to your PK account for the first time), you must first log in using your username and password, then complete the multi-factor authentication process you have selected, when and if active. Once you confirm your identity via the multi-factor authentication process, you will have full access to your PK account. You agree to accept responsibility for all activities that occur within and pursuant to your account. If you have reason to believe that your account is no longer secure for any reason (for example, in the event of a loss, theft or unauthorized disclosure or use of your password), then you agree to notify us immediately. If you are unable to log-in to the Help Center, please send an email to admin@pointskash.com.

 

5. Location Data.

Some features of the Services may enable us to tailor your experience in the Services based on your location. If you decline to provide location information, or if, in our judgment, we cannot verify your location, you will be unable to utilize some features of the Services.

 

6. User Rewards.

 

USER REWARDS GENERALLY.

PK may make available to you from time to time through the Services offers on certain third-party products and services (each an “Offer”). When you redeem an Offer through the Services, you will accumulate rewards in your PK account (“Rewards”). Each Offer may be subject to Additional Terms and may be discontinued by PK at any time without notice. At any time and in PK’s sole discretion, PK may: (i) determine whether or not you are eligible to redeem an Offer; (ii) determine whether or not you have earned Rewards; or (iii) adjust your Rewards total to accurately and fairly reflect the Rewards that you have actually earned. PK may, in its sole discretion, deduct from your PK account any Rewards that PK determines you have not earned or you have earned in violation of these Terms. Prior to distribution, Rewards have no monetary value and you may not obtain any cash, money, or anything of value in exchange for your Rewards except as made available by PK under Section 6.2.

 

REWARDS REDEMPTIONS AND MINIMUM REWARDS LEVEL.

 

Once you have accumulated at least Twenty Dollars (US $10.00) in Rewards in your PK account (the “Minimum Distribution Amount”), you may elect to have PK distribute your Rewards via one or more of the available distribution options as shown in the PK mobile app. The available distribution options are subject to change without notice to you, in accordance with these Terms, and you have no vested right to any particular form or method of distribution. You may not Redeem any Rewards, and you may not obtain any cash, money, or anything of value in exchange for your Rewards prior to reaching the Minimum Distribution Amount, or if subsequently your Rewards fall below the Minimum Distribution Amount, for as long as your Rewards remain below the Minimum Distribution Amount. For each distribution option made available by PK to you through the Services, PK may display to you within the PK mobile app the Minimum Distribution Amount at any given time, in which case that Minimum Distribution Amount will apply. The Minimum Distribution Amount is subject to change by PK at any time. PK may, at its sole discretion, limit the amount of Rewards that you can distribute in any given period of time or for any particular transaction. If you elect to close your PK account and you have undistributed Rewards that meet or exceed the Minimum Distribution Amount, you will be expected to distribute such Rewards prior to closing your account, and you must distribute those Rewards even if this means you must distribute your Rewards in the payout option with the lowest minimum distribution amount. If your account is removed or deactivated by PK, and if you fail to properly distribute your Rewards in accordance with these Terms when closing your account, or if at the time of closing you have less than the Minimum Distribution Amount in your account, any rights you have to the Rewards in your account will terminate and you will no longer be eligible to receive a distribution of such Rewards.

 

THIRD-PARTY PAYMENT PROVIDERS AND REWARDS CASH-OUT.

 

Certain distribution options are provided by licensed money transmitters authorized by PK to operate in connection with the Services (e.g., Western Union). (“Authorized Money Transmitters”) and are subject to additional terms and conditions associated with your account with such Authorized Money Transmitter (the “Payment Provider Terms”). When you elect to distribute Rewards through an Authorized Money Transmitter, you further agree (i) that PK is acting as your agent with respect to the payment processing, and (ii) that you are bound by the applicable Payment Provider Terms made available by that Authorized Money Transmitter, as such Payment Provider Terms may be modified by the Authorized Money Transmitter from time to time.

 

BONUSES.

 

From time to time, PK may introduce special bonuses or incentives that may be available to you in connection with the Services (“Bonuses”). Such Bonuses may include, for example, a referral bonus to refer others to PK, using a personal referral code or URL (“Referral Bonus”). You will not be eligible to earn Referral Bonuses if you invite other users who share the same mobile device or if they create multiple accounts in an effort to earn Referral Bonuses for inviting themselves, or if you publish your personal referral code on a public website, store, or forum for the purposes of referring people who you do not know personally. You represent and warrant that you will only refer PK to those individuals whom you know personally. Failure to comply with the requirements of this Section 6.4 is a violation of these Terms and shall be grounds for PK to terminate your account, rescind any Referral Bonuses, reverse or correct your Rewards balance, and/or take other actions as appropriate. Where you cannot produce examples of how you made referrals, including screenshots of where you made referrals, PK reserves the right to decline to award to you Referral Bonuses, rescind Bonuses, demand repayment of Rewards credited, or take other remedial actions.

 

AFFILIATE MERCHANT OFFERS.

 

Certain Offers require you to click a shopping link within the Services to be directed to an affiliated merchant’s mobile app (which may also require you to download such mobile app) or website (each an “Affiliate Merchant”) and complete a purchase to earn a Reward on your net purchase amount. Please note that the net purchase amount generally excludes taxes, fees, shipping, gift-wrapping, discounts or credits, returns or cancellations and extended warranties.

 

Certain Affiliate Merchants exclude a limited number of products and purchases from Affiliate Merchant Offers. A list of exclusions is included in the Additional Terms associated with each Offer and is subject to change without notice. Additionally, to earn Rewards, you must complete your purchase during the same shopping session you start after clicking on the shopping link associated with the Offer and may be required to complete your purchase within a required amount of time. If you visit other mobile apps or websites before completing your purchase, your purchase might be associated with a service other than PK’s Services and you might not earn a Reward on your purchase.

 

TAXES.

 

Depending on applicable federal, state, and local tax laws, your distribution of Rewards may be subject to taxes. You will be solely responsible for any and all tax liability arising out of your distribution of Rewards and you agree to provide PK with information PK requests in connection with applicable federal, state, and local tax laws. You are solely responsible for any tax liability (including fees, penalties, or fines) incurred by PK as a result of your action or inaction in connection with the foregoing (including your failure to provide PK with information). You agree that PK is authorized to offset such tax liability from your Rewards.

 

ACCOUNT MAINTENANCE FEES.

 

There are costs associated with the creation and maintenance of your PK account, and those costs are covered by the fees PK earns when you redeem Offers. Therefore, if you have redeemed at least one Offer during the prior 180 days, your account will not be assessed any account maintenance costs. If, however, you do not redeem at least one Offer during any 180 day period, PK will deduct from your PK account, on a monthly basis, the lesser of (i) $3.99 USD, or (ii) the amount then reflected in your PK account (in either case, an “Account Maintenance Fee”). No Account Maintenance Fees will be charged or deducted during the first six months after you initially register for your PK account. PK will attempt to notify you before any Account Maintenance Fee is deducted from your account, or if the Account Maintenance Fee amount changes, by sending you an email to the address we have on file for you. Subject to PK’s right to terminate your account under these Terms, PK will stop charging your account for Account Maintenance Fees for six months if you redeem at least one Offer. Under no circumstances will you ever pay an Account Maintenance Fee with anything other than amounts in your PK account – we will never ask you to make a payment for Account Maintenance Fees with credit or debit cards, checks or cash. If your Redemption balance reaches $0.00, your balance will remain at that amount until you earn more Rewards or your account is terminated in accordance with these Terms.

 

ESCHEATMENT.

 

Property that is presumed abandoned may under certain circumstances escheat to the applicable state department of revenue after a certain amount of time, as determined by the law applicable in the state in which you reside (or of your last-known state of residence). You accept and agree that any amounts that remain in your PK account after such statutory period will be reported to your state of residence as unclaimed property, and PK may be required to escheat any funds remaining in your PK account to your last-known state of residence. PK shall have no liability to you, your respective heirs, legal representatives, successors and assigns, or any other party, should any or all of the remaining funds in your PK account escheat by operation of law. (see State of New York, or any other operational jurisdiction for allowable escheatment practices. We will always follow all applicable laws, rules and/ regulations.

 

CLAIMS.

Rewards provided under this Section 6 and/or the Services are provided solely by PK and not underwritten, sponsored, or provided by any other third-party, including PK’s brand and merchant partners. By accepting these Terms of Use you agree not to seek Rewards or make any claims for Rewards against third-party providers, merchants or manufacturers of products and services. You agree that PK may transfer and/or assign its rights and obligations under these Terms at any time.

 

7. Prohibited Conduct.

 

BY USING THE SERVICES YOU AGREE NOT TO:

1. submit to PK purchase information that is false, inaccurate, fabricated, counterfeited, tampered with, adjusted, or otherwise artificial or inauthentic for the purpose of seeking to redeem Offers with PK;

2. redeem, or attempt to redeem, PK Offers for products that have not actually been purchased and retained, or for products that have been purchased but returned to a store or online vendor, following purchase;

3. upload receipts to PK that have already been uploaded by you or another user, for the purpose of earning Rewards for purchasing products that you did not actually purchase;

4. upload receipts to PK that reflect purchases that took place more than one (1) week prior to the date on which the receipt is uploaded;

5. upload receipts to PK that reflect purchases that took place prior to the launch date of an Offer or campaign and therefore prior to your activating the Offer, except where expressly permitted by the terms of the Offer;

6. attempt to obscure information on a receipt, such as by purposefully uploading a receipt without a clearly legible date;

7. extract information from PK’s web or mobile applications for the purpose of using said information in conjunction with another service, web or mobile application;

8. rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials (as defined in Section 18 below);

9. post, upload, or distribute any defamatory, libelous, or inaccurate User Content (as defined in Section 9 below) or other content;

10. post, upload, or distribute any User Content or other content that is unlawful or that a reasonable person could deem to be objectionable, profane, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;

11. misuse or attempt to misuse PK’s Referral Bonus program by inviting yourself to join PK using another account or invite others who share the same mobile device, in an effort to earn Referral Bonuses or Rewards, or by publishing your personal referral code on any public website, store, or forum for the purposes of exploiting PK’s Referral Bonus program by referring people personally unknown to you;

12. make false or misleading claims about PK’s Referral Bonus program or any other incentive program created by PK;

13. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Services accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Services, or perform any other similar fraudulent activity;

14. infringe the copyright or other proprietary rights on the Services or of any User Content;

15. make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the Services. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;

 

16. use the Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy, or the collection, storage, transmission, or access of educational records;

17. defame, harass, abuse, threaten or defraud users of the Services, or collect, or attempt to collect, personal information about users or third parties without their consent;

18. use the Services, including PK’s Referral Bonus program, for any commercial purpose not disclosed and approved by PK;

 

19. remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services or User Content, features that prevent or restrict use or copying of any content accessible through the Services, or features that enforce limitations on the use of the Services or User Content;

20. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Services or any part thereof (including any App), except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;

 

21. modify, adapt, translate or create derivative works based upon the Services or any part thereof, except and only to the extent the foregoing restriction is expressly prohibited by applicable law;

 

22. intentionally interfere with or damage the operation of the Services or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code; or

 

 

23. use or attempt to use the Services outside of the United States and Puerto Rico.

 

8. Pay with PK (When introduced).

 

1. PK may make available to you through the Services acting as an Agent to regulated financial Institutions the opportunity to establish a payment account (“Payment Account”) that will allow you to complete purchases using a payment method that you store in your Payment Account (“Payment Method”). Payment Methods may include a debit card, and are subject to change by PK at any time. Your Payment Method will be stored in a secure form in accordance with applicable laws and regulations by a third party affiliated with PK. You may establish more than one Payment Method in your Payment Account (e.g., you may add two or more debit cards to your account). You may change the default Payment Method at any time through your PK Payment Account settings, and if you do not select a default Payment Method, PK may select one of your Payment Methods as a default Payment Method for your Payment Account.

 

2. PK may notify you from time to time about specific merchants and/or certain transactions where you can use your Payment Account to make payments through the Services. PK may also notify you from time to time of certain Rewards or other loyalty incentives that you may receive by using your Payment Account to conduct certain transactions through the Services.

 

3. When you make a purchase through the Services using your Payment Account, your Payment Method may be charged immediately or at a later time, so you must ensure that sufficient funds are always available through your chosen Payment Method to complete all transactions that you authorized through your Payment Account. The funds charged to your Payment Method may be used directly to complete your purchase, or may be converted by PK through an intermediate payment method (e.g., a gift card, an Automated Clearing House (ACH) payment, or another form of electronic fund transfer (EFT)) provided as a service through third party regulated financial institutions with PK acting as an agent.

 

4. No Refunds. When you make a purchase through the Services using your Payment Account, all such purchases, including but not limited to purchases made with a gift card, shall be nonrefundable under any circumstances except where required by law. In the event these Terms are terminated for any reason, no portion of any payments you have made of any kind whatsoever shall be owed or be repayable or refunded to you.

 

5. PK, acting as an agent to a regulated financial institution, may offer you a method to fund your Pay with PK purchases using an automated clearing house (ACH) service provider. By linking your bank account, you expressly authorize PK’s ACH service provider to electronically initiate debits and credits to your account, in accordance with this Agreement and PK’s ACH service provider’s terms of service.

 

9. User Content.

 

USER CONTENT GENERALLY.

 

Certain features of the Services may permit users to post content, including messages, reviews, photos, images, folders, data, text, and other types of works (collectively, “User Content”) and to publish User Content on the Services.

 

LIMITED LICENSE GRANT TO PK.

 

By posting User Content, you grant PK a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, perpetual, irrevocable right and license to host, transfer, display, perform, reproduce, modify, distribute and re-distribute, and otherwise exploit your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). You retain copyright and any other proprietary rights you hold in the User Content that you post to the Services.

 

USER CONTENT REPRESENTATIONS AND WARRANTIES.

 

You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting and publishing User Content, you affirm, represent, and warrant that:

 

1. You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize PK and users of the Services to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 9 and in the manner contemplated by PK and the Terms;

 

2. Your User Content, and the use thereof as contemplated herein, does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (c) contain any viruses, adware, spyware, worms, or other malicious code; or (d) violate any applicable law or regulation.

 

USER CONTENT DISCLAIMER.

 

We are under no obligation to edit or control User Content that you and other users post or publish, and will not be in any way responsible or liable for User Content. You understand that when using the Services you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against PK with respect thereto. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to the Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, PK does not permit copyright infringing activities on the Services.

 

MONITORING CONTENT.

 

PK does not control and does not have any obligations to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Services by its users. You acknowledge and agree that PK reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Services for operational and other purposes. If at any time PK chooses to monitor the content, PK still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.

 

10. Consent to Electronic Communications and SMS.

 

By using the Services, 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. In accordance with this Section 10, we may also communicate with you via SMS. By providing us with your contact information, you agree that we may contact you at the address, email, phone number, or other contact information provided.

 

11. Digital Millennium Copyright Act; 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 any complaints or objections to material posted on the Services, you may contact our designated agent at the following address:

 

PointsKash, Inc.

Attention: Designated Copyright Agent/ Legal Department

6111 Broken Sound Parkway NW

Suite 380 Boca Raton, FL 33487

Phone: 877-368-2926

E-mail: admin@pointskash.com Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must include the following information: – an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; – a description of the copyrighted work or other intellectual property that you claim has been infringed; – a description of the material that you claim is infringing and where it is located on the Services; – your address, telephone number, and email address; – a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and – a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

 

12. Third Party Services and Websites.

 

PK may provide tools that enable you to register for the Services through third parties or that enable you to export information through the Services to third party services, including through use of an API or by linking your account on PK with an account on the third-party service. By using these tools, you agree that we may transfer such User Content and information to the applicable third-party service. Such third-party services are not under our control, and we are not responsible for the contents of the third party service or the use of your User Content or information by the third party service. The Services, including our websites, may also contain links to third-party websites. The linked sites are not under our control, and we are not responsible for the contents of any linked site. We provide these links as a convenience, and a link does not imply our endorsement of, sponsorship of, or affiliation with the linked site. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties’ services or websites.

 

13. Feedback.

 

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

 

14. Limitations on User Accounts.

 

A user may not create or manage more than one PK account. Each unique mobile device may not be associated with more than two user accounts. Users who attempt to associate an excessive number of mobile devices with a single user account may be deemed to have violated these Terms of Use to the extent they are deemed by PK to have abused the Services.

 

15. Term.

 

These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Services, and ending when terminated as described in Section 16. Any subsequent modifications to these Terms are effective as set forth in Section 3 above.

 

16. Termination of Use; Discontinuation and Modification of the Services.

 

If you engage in Prohibited Conduct or otherwise violate any of the Terms, you agree that your permission to use the Services will automatically terminate and any rights you have to the Rewards in your account will terminate and you will no longer be eligible to receive a distribution of such Rewards. You also agree that we may, at any time and without notice to you, suspend or revoke your access to and use of the Services, and any accounts you may have in connection with the Services including: (i) where we determine in our sole discretion that such action is reasonable in order to comply with legal requirements or to protect the rights or interests of PK or any third party; or (ii) in connection with any general discontinuation of the Services. We also reserve the right to modify the Services at any time without notice to you. WE WILL HAVE NO LIABILITY WHATSOEVER ON ACCOUNT OF ANY CHANGE TO THE SERVICES OR ANY SUSPENSION OR REVOCATION OF YOUR ACCESS TO OR USE OF THE SERVICES, PROVIDED THAT IF WE TERMINATE YOUR ACCESS TO THE SERVICES OTHER THAN FOR YOUR BREACH OF THESE TERMS, YOU MAY BE ENTITLED TO HAVE YOUR REWARDS DISTRIBUTED, AS DESCRIBED IN THE TERMS. You may terminate your account at any time by visiting our Help Center. If you are unable to log-in to the Help Center, please send an email to admin@pointskash.com.

 

17. Effect of Termination.

 

Upon termination of these Terms: (a) in accordance with the applicable End User License Agreement, your license rights will terminate and you must immediately cease use of the Services; (b) you will no longer be authorized to access your account or the Services; and (c) all payment obligations accrued prior to termination and Sections 13, 16, and 17-27 and any other Sections which, by its nature or express terms should survive, will survive.

 

18. Ownership; Proprietary Rights.

 

The Services are owned and operated by PK. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Services provided by PK (the “Materials”) are protected by United States copyright, trade dress, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any User Content that is provided and owned by users of the Services, all Materials contained in the Services are the property of PK or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to PK or its affiliates and/or third-party licensors. Except as expressly authorized by PK, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. PK reserves all rights to the Materials not expressly granted in the Terms.

 

19. Indemnity.

 

To the fullest extent permitted bylaw, you are responsible for your use of the Services, and you agree to defend, indemnify and hold harmless PK and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “PK Entities”) 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 Services; (ii) your violation of the Terms 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. 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.

 

20. Disclaimers; No Warranties.

 

THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE PK ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; (ii) ANY WARRANTIES ARISING OUT OF COURSE-OF-DEALING, USAGE, OR TRADE; (iii) ANY WARRANTIES THAT THE INFORMATION OR RESULTS PROVIDED IN, OR THAT MAY BE OBTAINED FROM USE OF, THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE ACCURATE, RELIABLE, COMPLETE, OR UP-TO-DATE; AND (iv) ANY WARRANTIES WHATSOEVER REGARDING ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ADVERTISED, MADE AVAILABLE, OR REFERRED TO YOU THROUGH THE SERVICES. YOU ASSUME ALL RISK FOR ALL DAMAGES, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE OR LOSS OF DATA THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICES. ANY CONTENT, MATERIALS, INFORMATION OR SOFTWARE DOWNLOADED, USED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK.

 

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. PK DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT PK IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.

 

21. Limitation of Liability.

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE PK ENTITIES NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OPERATING OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE PK ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE WHERE SUCH DAMAGES RESULT FROM: (i) YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICES OR ANYTHING ASSOCIATED WITH YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICES, (ii) ANY PURCHASE OF A THIRD PARTY PRODUCT OR SERVICE BASED ON INFORMATION CONTAINED IN THE SERVICES, INCLUDING THE AVAILABILITY OF A COUPON, REBATE OR OTHER TYPE OF DISCOUNT OR REWARD, OR (iii) THE CONDUCT OF THIRD PARTIES. YOU SPECIFICALLY ACKNOWLEDGE THAT THE PK ENTITIES ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, THE PK ENTITIES WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THROUGH THE SERVICES.

 

TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE PK ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO THE SERVICES IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO PK FOR ACCESS TO AND USE OF THE SERVICES GIVING RISE TO SUCH LIABILITY IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM, OR (ii) $100. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PK AND YOU.

 

 

 

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

 

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 21 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

 

22. Dispute Resolution

 

NO CLASS ACTIONS.

 

TO THE EXTENT PERMITTED BY LAW, YOU AND PK 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.

 

GOVERNING LAW; VENUE.

 

These Terms shall be governed by the laws of the State of Florida as they apply to agreements entered into and to be performed entirely within Florida by Florida residents, and without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and PK agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Florida for the purpose of litigating all such claims or disputes. The Services are intended for users located within the United States. We make no representation that the Services are appropriate or available for use outside of the United States.

 

23. General.

 

The Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and PK regarding your use of and access to the Services, and except as expressly permitted above may only be amended by a written agreement signed by authorized representatives of the parties. You may not assign or transfer the Terms or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign the Terms at any time without notice. The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach of the Terms constitute a waiver of any subsequent breach or a waiver of the provision itself. Use of paragraph headers in the Terms is for convenience only and shall not have any impact on the interpretation of any provision. In the event that any part of the Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.

 

24. Contact Information.

 

If you have any questions regarding PK, the Services, or the Terms please visit our Help Center. If you are unable to log-in to the Help Center please send an email to admin@pointskash.com.

 

25. 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 Services or to receive further information regarding use of the Services.

 

26. No Support.

 

We are under no obligation to provide support for the Services. In instances where we may offer support, the support will be subject to published policies.

 

27. Notice Regarding Apple.

This Section 27 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and PK only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fail to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (a)product liability claims; (b) any claim that the Services fail to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Services. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.