THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
Thank you for visiting gospotcheck.com (the “Website”), which is owned and provided by GoSpotCheck, Inc., (“GSC”) and downloading and installing our mobile software application entitled “GoSpotCheck Team” (the “App”) (collectively, we refer to the App and our Website and the hosted software as a service platform (“Platform”) accessed at the Website as the “Service”).
You represent and warrant that you (a) are above the legal age of majority in your jurisdiction of residence, (b) have not previously been suspended or removed from the Service; (c) do not have more than one account at any given time for the Services; (d) you will only provide us with true, accurate, current and complete information – if we believe or suspect that your information is not true, accurate, current or complete, we may deny or terminate your access to the Service (or any portion thereof) – and; (e) that you have full power and authority to enter into the Terms and in doing so will not violate any other agreement to which you are a party.
2. Use of The Website
The Service enables companies to use cutting edge mobile software and hosted software as a service technologies capture, analyze, and use real-time market intelligence. Specifically, corporate entities (each a “Principal”) can enlist individual users that have downloaded the App to a mobile device to complete specific information gathering tasks and reviews (each a “Mission”) and collect large amounts of information based on criteria specified by the Principal (“Collected Data”) and aggregate and convert that Collected Data into relevant, useful reports accessed via the Platform (“Reports”). Subject to these Terms and the applicable Subscriber Agreement, GSC grants to you a limited license to use the Service for the foregoing purposes and to copy, display, and use the Reports provided by the Website solely for your Principal’s business purposes. If you are not party to a Subscriber Agreement, GSC hereby grants you a limited license to view and display the Website solely for the purpose of learning about GSC and the services that it offers.
3. Member Accounts
In order to use certain features of the Service, you will have to create an account (“Member Account”), which may require you to select a username and password. We may refuse to grant you a username for any reason in our sole discretion. You will be responsible for the confidentiality and use of your username and password and agree not to transfer or resell your use of or access to the Website to any third party. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD AND FOR ANY AND ALL ACTIVITIES THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. YOU MAY NEVER USE ANOTHER PERSON’S MEMBER ACCOUNT WITHOUT PERMISSION.
4. Intellectual Property Ownership
5. Restrictions on Use
No other use of the Service or any GSC Materials is authorized. You agree that any copy of the GSC Materials (or any portion of the GSC Materials) that you make must retain all copyright and other proprietary notices contained herein or therein. Framing of the Website or Materials or posting of GSC Materials on other web sites is strictly prohibited. The use or misuse of any GSC Materials, except as provided in these Terms or in a valid Subscriber Agreement, is strictly prohibited. You shall not, without GSC’s express written consent: (a) distribute text or graphics to others, (b) copy and retransmit, disseminate, broadcast, circulate, or otherwise distribute the GSC Materials on any other server, or modify or re-use all or part of the GSC Materials on this system or any other system, (c) use any trade name, trademark, or brand name of GSC in metatags, keywords and/or hidden text, (d) copy, distribute, modify, transmit, perform, reuse, re-post, or otherwise display the GSC Materials, in whole or in part, for public or commercial purposes or modify, translate, alter or create any derivative works thereof, (e) create derivative works from the GSC Materials or commercially exploit the GSC Materials, in whole or in part, in any way, (f) use the Service, the GSC Materials, and/or any portion thereof, in any manner that may give a false or misleading impression, attribution or statement as to GSC, the Owner, or any third party referenced therein, (g) use the GSC Materials, and/or any services and products on the Service or accessible via the Service for unlawful purposes only; or (h) alter, remove or obscure any copyright notice, digital watermarks, proprietary legends or any other notice included in the GSC Materials.
6. Acceptable Use
Your use of the Service is conditioned upon your compliance with the following rules (“Acceptable Use Restrictions”):
You shall not upload to, transmit through, or display via the Service any content that: (i) is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights; (ii) contains confidential, proprietary, or trade secret information of any third party; (iii) violates the rights of others, including without limitation any privacy rights or rights of publicity; (iv) impersonates any person or entity, falsely states or otherwise misrepresents your affiliation with any person or entity, or uses any fraudulent, misleading or inaccurate email address or other contact information; (v) violates any applicable laws or regulations; (vi) makes any statement, express or implied, that you are endorsed by GSC; (vii) harms minors in any way, including, but not limited to, by depicting content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct; (viii) contains any unsolicited promotions, political campaigning, advertising or solicitations; or (ix) in our sole judgment is inappropriate or objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose the GSC, any of its officers, directors, or employees, or other users to any harm or liability of any type.
You shall not use the Service to engage in any of the following activities: (i) accessing, using, or uploading content to, or attempting to access, use, or upload content to another user’s account without permission; or (ii) transmitting, uploading, or downloading, any software or other materials that contain any viruses, worms, trojan horses, defects, date bombs, time bombs or other items of a destructive nature.
You shall not: (i) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Service; (ii) remove any copyright, trademark or other proprietary rights notices contained in or displayed on any portion of the Service; (iii) “frame” or “mirror” any portion of the Service, or link to any Material other than via the homepage of the URL located at http://www.gospocheck.com/ or the URLs provided by us to you for such purposes, without our prior written authorization; (iv) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Service; or (v) harvest or collect information about or from users of the Service. GSC does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and GSC reserves the right to remove Principal Materials without prior notice and/or to terminate a user’s access to the Service, if the User has been notified of infringing activity and has had Principal Materials removed from the Service more than twice. GSC also reserves the right to decide whether Principal Materials is appropriate and complies with these Acceptable Use Restrictions at any time, without prior notice and at its sole discretion.
8. Digital Millennium Copyright Act
GSC is committed to respecting and protecting the legal rights of copyright owners. As such, GSC adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.). If you believe any of the Materials infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a “DMCATakedownNotice”). To be valid, a DMCA Takedown Notice must (a) be provided to GSC’s designated agent, (“Copyright Agent”), as set forth below, and (b) include the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
- Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- 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 the law; and
- A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
GSC’s Copyright Agent to receive DMCA Takedown Notices is:
9. Dispute Resolution
DISPUTE RESOLUTION; ARBITRATION; CHOICE OF LAW. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
YOU AGREE THAT BY USING THE SERVICE OR, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST GSC ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
YOU AGREE THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS, YOUR USE OF THE SERVICE, OR YOUR DEALINGS WITH GSC SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY. THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THIS SECTION. THE ARBITRATION WILL BE CONDUCTED BY JUDICIAL ARBITER GROUP, INC. (“JAG”) USING ONE ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF JAG ARBITRATORS IN ACCORDANCE WITH THE ARBITRATION RULES AND PROCEDURES OF JAG. IF JAG IS UNABLE OR UNWILLING TO ARBITRATE A DISPUTE, THEN THE DISPUTE MAY BE REFERRED TO ANY OTHER ARBITRATION ORGANIZATION OR ARBITRATOR THAT YOU AND GSC AGREE UPON IN WRITING OR THAT IS APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT. FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS, THE ARBITRATOR, YOU MUST ABIDE BY THE FOLLOWING RULES: (A) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS; AND (B) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) MUST TAKE PLACE IN DENVER, COLORADO. THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE.
THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. YOU WILL NOT BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.
YOU AGREE THAT ALL CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THE ARBITRATION PROVISION—I.E. WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION—SHALL BE DETERMINED BY THE ARBITRATOR. NOTWITHSTANDING ANY PROVISION IN THESE TERMS TO THE CONTRARY, IF THE CLASS-ACTION WAIVER ABOVE IS DEEMED INVALID OR UNENFORCEABLE YOU AGREE THAT YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS. IF THE ARBITRATION PROVISION IN THIS SECTION IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, THEN THE PROCEEDING MUST BE BROUGHT EXCLUSIVELY IN THE STATE COURTS OF COMPETENT JURISDICTION OR THE UNITED STATES DISTRICT COURT LOCATED IN DENVER, COLORADO, AS APPROPRIATE, AND YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSE OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU STILL WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PROCEED IN A CLASS OR COLLECTIVE ACTION, AND REMAIN BOUND BY ANY AND ALL LIMITATIONS ON LIABILITY AND DAMAGES INCLUDED IN THESE TERMS. THIS ARBITRATION AGREEMENT WILL SURVIVE TERMINATION OF YOUR USE OF THE SERVICE AND YOUR RELATIONSHIP WITH GSC. THIS ARBITRATION AGREEMENT INVOLVES INTERSTATE COMMERCE AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. §§ 1-16 (“FAA”), AND NOT BY STATE LAW. INFORMATION ON AAA AND HOW TO START ARBITRATION CAN BE FOUND AT WWW.ADR.ORG OR BY CALLING 800-778-7879.
IF YOU WISH TO OPT-OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 45 DAYS OF WHEN YOU FIRST USE THE SERVICE OR SUBMIT THROUGH THE SERVICE A REQUEST FOR INFORMATION, YOU MUST SEND US A LETTER STATING, “REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE” AT THE FOLLOWING ADDRESS:
In the event you opt out of the arbitration provision, you agree to litigate exclusively in the state or Federal courts in Denver, Colorado, and you hereby consent and submit to the personal jurisdiction of such courts for the purpose of litigating any such action. These Terms will be governed by the laws of the State of Colorado, without giving effect to any principles of conflicts of laws.
Without limiting the foregoing, the Service, and all components and elements of the Service, are provided to you “AS IS” and “AS AVAILABLE” without warranty of any kind, either express or implied, including but not limited to, fitness for a particular purpose, title, or non-infringement. Should applicable law not permit the foregoing exclusion of express or implied warranties, then GSC hereby grants the minimum express or implied warranty required by such applicable law. No advice or information, whether oral or written, obtained by you from GSC, its employees, agents, suppliers or any other persons shall create any warranty, representation or guarantee not expressly stated in this section. Additionally, GSC does not make any warranties that the Service will be uninterrupted, secure or error free or that your use of the Service will meet your expectations, or that the Service, or any result, component, or portion thereof, is correct, accurate, or reliable. GSC reserves the right to change any part of the Service at any time without notice.
11. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT LIMITING ANYTHING ELSE IN THESE TERMS, OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF ANY SERVICE, APP, OR WEBSITE WILL BE: (A) WHERE SUCH LIABILITY RELATES TO SUBSCRIBER AGREEMENT, OUR AGGREGATE LIABILITY FOR ALL CLAIMS RELATED TO THAT SUBSCRIBER AGREEMENT WILL BE THE VALUE OF FEES PAID BY THE PRINCIPAL FOR THE PAST THREE (3) MONTHS; OR (B) IN RELATION TO ANY OTHER CLAIM, THE AMOUNT OF $2,000.
IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE WEBSITE, APP, OR SERVICES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE WEBSITE, APP, OR SERVICES EXCEPT AS SET FORTH IN A SUBSCRIBER AGREEMENT. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”.
IF YOU ARE ACCESSING THE SERVICE FROM NEW JERSEY, YOU (A) ASSUME ALL RISKS OF LOSSES OR DAMAGES RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICE; (B) IRREVOCABLY WAIVE ALL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) THAT MAY OCCUR AS A RESULT OF YOUR USE OF THE SERVICE; AND (C) EXPRESSLY AGREE TO RELEASE AND DISCHARGE GSC AND ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION RESULTING, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE SERVICE; AND (D) YOU VOLUNTARILY GIVE UP OR WAIVE ANY RIGHT THAT YOU MAY OTHERWISE HAVE TO BRING A LEGAL ACTION AGAINST GSC FOR LOSSES OR DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY, INCLUDING ANY CLAIM BASED ON ALLEGED NEGLIGENCE ON THE PART OF GSC AND THEIR AGENTS AND EMPLOYEES. YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS “WAIVER AND RELEASE” AND FULLY UNDERSTAND THAT IT IS A RELEASE OF LIABILITY.
Except as set forth in a Subscriber Agreement governing your access to the Service, these Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by GSC without restriction.
From time to time, GSC may revise these Terms. To help you stay current of any changes, GSC notes the date these Terms were last updated above. Your use of the Service following the posting of any revised Terms shall be deemed acceptance of the revised Terms. GSC strongly recommends checking these Terms periodically. If you disagree with the provisions of these Terms at any time, your sole remedy is to terminate your use of the Service. Continued use of the Service constitutes your agreement to these Terms as in effect.
GSC’s failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.