PARTIAC TERMS OF SERVICE AGREEMENT

PLEASE READ THESE TERMS OF SERVICE CAREFULLY.  THEY GOVERN YOUR LEGAL RIGHTS AND RESPONSIBILITIES AND USE OF THIS APPLICATION AND ANY ASSOCIATED WEBSITE

Please read carefully the following provisions of these Terms of Service (the “Agreement” or “Terms of Service”). This is a legal agreement between you and Partiac, Inc, a Delaware Corporation (“Partiac,” “we,” or “us”) regarding the use of the Partiac mobile application (the “Application”), the www.partiac.com website, any mobile or touch versions thereof, and any other applications or websites we now have now or may have in the future which you may access, download, purchase or use (collectively referred to as the “Partiac Service”). In order to use the Partiac Service, you must agree to our Terms of Service.

 

1.  ACCEPTANCE OF TERMS OF SERVICE

By using the Partiac Service you (“you” or “User”) agree to these Terms of Service, our Privacy Policy, and any additional terms applicable to certain programs in which you may elect to participate or with respect to any portion of the Partiac Service, as any of the same may exist from time to time. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MUST IMMEDIATELY STOP ACCESSING OR USING THE PARTIAC SERVICE.

 

2.  CHANGE IN THE TERMS OF SERVICE

We reserve the right at all times to discontinue or modify any part of these Terms of Service as we deem necessary or desirable. We suggest that you revisit our Terms of Service from time to time to ensure that you stay informed of any such changes to the Partiac Service. Your use of the Partiac Service after we update these Terms of Service will constitute acceptance of the modified Terms of Service. We also reserve the right to change or discontinue any aspect or feature of the Partiac Service including, but not limited to, requirements for access or use.

 

3.  OWNERSHIP OF THE PARTIAC SERVICE

We own all content associated with the Partiac Service, including but not limited to visual interfaces, interactive features, graphics, design, compilation, computer code, products, software, mobile applications, aggregate user review ratings, and all other elements and components of the Partiac Service, including any content posted or transmitted to the Partiac Service by you or other Users (the “Content”).  We also own the copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world (“IP Rights”) associated with the Content and the Partiac Service, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. As such, you may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of our Content in whole or in part except as expressly authorized by us.  Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Partiac Service are retained by us.

 

4.  USING THE PARTIAC SERVICE

A.  Eligibility

To access or use the Partiac Service, you must be at least 21 years of age or older.  You must also have the requisite power and authority to enter into this Agreement.  Any use or access to the Partiac Service by anyone under 21 is strictly prohibited and in violation of these Terms of Service.  If you are under 21, please do not attempt to register for the Partiac Service or send any information about yourself to us, including your name, address, telephone number, or email address.  If we learn that we have collected personal information from anyone under age 21, we will delete that information as quickly as possible. You may not access or use the Partiac Service if you are a competitor of ours or if we have previously banned you from the Partiac Service or closed your account.

B.  Permission to Use the Partiac Service.

We grant you permission to use the Partiac Service subject to the restrictions in these Terms of Service. Your use of the Partiac Service is at your own risk, including the risk that you might be exposed to content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate.

C.  Site Availability.

The Partiac Service may be modified, updated, interrupted, suspended or discontinued at any time without notice or liability.

D.  User Accounts

You must create an account and provide certain information about yourself or your Business in order to use some of the features that are offered through the Partiac Service.  You are responsible for maintaining the confidentiality of your account password.  You are also responsible for all activities that occur in connection with your account.  You agree to notify us immediately of any unauthorized use of your account.  You may never use another User’s account without permission.  We reserve the right to close your account at any time for any or no reason.

The Partiac Service may be available through other services, in which case you hereby represent and warrant that you have read and agreed to be bound by all applicable policies governing the use of such service and will act in accordance with those policies, in addition to your obligations under these Terms of Service.  If you sign into the Partiac Service through another service, you will provide your account credentials with such service to Partiac, and you are consenting to have the information in that account transmitted into your Partiac account, and you agree that you shall only use the accounts owned by you, and not by any other person or entity.

i.  Additional Terms of Service for Businesses (e.g, bars, clubs, lounges, restaurants or other venues).

You hereby agree that by downloading, subscribing to and using the Partiac Service on behalf of your business, that you are representing and certifying that you are the owner of the said business (the “Business”) or have the explicit written consent of the Business authorizing you to handle the Business on behalf of its owner, and that you are at least 21 years of age or older. You agree that we only authorize the owner of the Business or the agent of the owner to subscribe to and use the Partiac Service on behalf of a Business.  If any dispute whatsoever arises due to the ownership or authorized agent for the ownership of any Business, we will suspend your use of the Partiac Service at our discretion until we have investigated the dispute and made a determination in our sole discretion, and you hereby agree that we have the sole control over whether or not a Business profile of any kind will be displayed on the Partiac Service or whether the Partiac Service may be used by a Business.  You agree on behalf of the Business that the Business will not use the Partiac Service to promote or facilitate any activities that are considered illegal by local, state, and federal authorities with jurisdiction over the Business. You further agree on behalf of the Business that the Business does not and will not have any involvement whatsoever of any kind with any person under the applicable minimum drinking age in your jurisdiction, and in no event under the age of 21, and understand and acknowledge that if we learn of any involvement of the Business with any person under the age of 21 or under the applicable minimum drinking age in your jurisdiction, that we may (but are under no obligation to) notify the local, state, and federal authorities with jurisdiction, regarding such involvement.  By accepting these Terms of Service, you agree that you will not permit any other person to use, update, or monitor the Business’ account with the Partiac Service, and that you remain responsible for the conduct of your agents.

You also agree and state that you have the permission by local, state, and federal authorities to sell the products that you will advertise, offer, promote, or sell through the Partiac Service, represented by a current certificate of occupancy, mercantile license, and/or health license issued by the relevant governing authority.  Furthermore, if you advertise, offer, promote, or sell a product on the Partiac Service that has alcohol or implies that it has alcohol, whether or not in conjunction with any other products, you hereby represent and certify that you are advertising, offering, promoting, or selling the alcohol in accordance with all local, state and federal laws regulating alcohol and that you have a valid license to sell that alcohol, and that you will not sell or advertise alcohol to any person under the minimum drinking age in your jurisdiction. You also hereby waive any liability associated with your advertising, offering, promoting, or selling of alcohol through the Partiac Service, and agree to hold us harmless from and indemnify us against any liability therefor, and agree to defend us in any civil, criminal, or regulatory action that may arise at your sole cost.  You further represent and certify that you have an existing and current liquor liability insurance policy based on your actual gross receipts, and that if any judgment should be entered against us, that that judgment will be paid in full by your policy, and that you have added us to your insurance as an additional payee.  You agree to follow all local, state, and federal rules regarding the sale and serving of alcohol and will keep any records in support of the proper sale of alcohol.  You hereby also agree that the products you advertise, offer, promote, or sell through the Partiac Service are your products, not the products of ours, and will be advertised, offered, promoted, or sold in accordance with all local, state, and federal laws.

You agree that it will be your sole responsibility to apply, charge, collect, account for and pay any and all local and/or state sales taxes applicable to the sales of the products your Business offers.

You agree that if we have provided you with a beacon for use in connection with the Partiac Service at your location, and the beacon is lost, damaged, or stolen while on your property, that you will reimburse us our actual cost for the beacon.

E.  Subscription Fees

If the version of the Partiac Service you have downloaded and/or subscribed to is not free, then the subscription fee is for the term stated (e.g., monthly).  The fee is valid for that term only, and may thereafter be increased by us in our sole discretion.  If you have elected automatic renewal of your subscription, your payment method will be automatically charged at the end of the current term and all subsequent terms unless and until you discontinue your subscription.  If the subscription fee will increase for the next term, we will inform you a reasonable time in advance of the expiration of your current term, by email, message through the Partiac Service, or another means.  If you do not discontinue your subscription, you are consenting to the increase in the subscription fee and authorizing us to continue to charge your stated payment method that increased fee.

F.  Business Promotion

The Partiac Service may be utilized by your Business by:

i.  Promoting your Business, events at your Business, or products or services for offer or sale at your Business, through the Partiac Service (on your Business profile).

ii.  Allowing Users to make reservations for tables, special events, etc., if this functionality is offered through the Partiac Service (may not be available in all versions).

iii.  Allowing Users to pay you through the Partiac Service for the products or services you offer or sell, if this functionality is offered through the Partiac Service (may not be available in all versions).

G.  Responsibility for Content You Post to the Partiac Service

You alone are responsible for the content that you post to the Partiac Service, including any information, messages, images, photos, videos, files, personal information (such as your name, location, and contact information), Business information (such as name, description, events, offers, promotions, products, and rewards), technical data, or any other type of information that you transmit or post through the Partiac Service (“Your Content”).  Your Content, once published or posted, cannot always be withdrawn, and you agree that Your Content, once so published or posted, is not solely yours but also the property of Partiac, and may be retained, stored, or used for statistical and analytical purposes by Partiac.  You hereby grant Partiac a non-exclusive license to use, store, examine, analyze, and share with others all of Your Content.  You assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, or reliability, or any disclosure by you of information in Your Content that makes you personally identifiable.  You represent that you own, or have the necessary permissions to use and authorize the use of Your Content as described herein.  You may not imply that Your Content is in any way sponsored or endorsed by the Partiac Service.

You agree not to transmit Your Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you or to any other person; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, pornographic, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current.

You agree that Your Content does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. We reserve the right, but are not obligated, to reject and/or remove any of Your Content that we believe, in our sole discretion, violates these provisions. For the purposes of these Terms of Service, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

You further agree that you will not use the Partiac Service to collect content or information from anyone, whether for commercial use or any other kind of use, without first obtaining their consent and first making it clear that you (and not us) are the one collecting their content.

We take no responsibility and assume no liability for any content that you or any other User or third party posts or sends over the Partiac Service.  You shall be solely responsible for Your Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of Your Content.  You understand and agree that when using the Partiac Service, you may be exposed to content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that we shall not be liable for any damages you incur or allege to incur as a result of any content posted on the Partiac Service.

H.  Our Right to Use Your Content

We may use Your Content in a number of different ways, including publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms (“Other Media”).  As such, you hereby irrevocably grant us world-wide, non-exclusive, royalty-free, sublicensable, transferable rights to use Your Content for any purpose.  You also irrevocably grant the users of the Partiac Service and any Other Media the right to access Your Content in connection with their use of the Partiac Service and any Other Media.  Finally, you irrevocably waive, and cause to be waived, against us and our Users any claims and assertions of moral rights or attribution with respect to Your Content.  By “use” we mean use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of Your Content.

I.  Advertising

We and our licensees may publicly display advertisements and other information adjacent to or included with Your Content. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you.

 

5.  RESTRICTIONS

We are under no obligation to enforce the Terms of Service on your behalf against another User. While we encourage you to let us know if you believe another User has violated the Terms, we reserve the right to investigate and take appropriate action at our sole discretion.

You agree not to, and will not assist, encourage, or enable others to use the Partiac Service to:

•  Violate our content guidelines, for example, by posting false or defamatory information;

•  Violate any third party’s rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;

•  Threaten, stalk, harm, or harass others, or promote bigotry or discrimination;

•  Use the Partiac Service for commercial purposes, except as expressly permitted by these Terms of Service;

•  Send bulk emails, surveys, or other mass messaging, whether commercial in nature or not;

•  Solicit personal information from minors, or submit or transmit pornography; or

•  Violate any applicable law.

You also agree not to, and will not assist, encourage, or enable others to:

•  Violate the Terms of Service;

•  Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Partiac Service or any content posted on or through the Partiac Service (other than Your Content), except as expressly authorized by us;

•  Use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index any portion of the Partiac Service or any content posted on the Partiac Service;

•  Reverse engineer any portion of the Partiac Service;

•  Remove or modify any copyright, trademark or other proprietary rights notice that appears on any portion of the Partiac Service or on any materials printed or copied from the Partiac Service;

•  Record, process, or mine information about other users, except as done through the analytic functions that are part of the Partiac Service;

•  Access, retrieve or index any portion of the Partiac Service for purposes of constructing or populating a searchable database of information about Businesses using the Partiac Service;

•  Reformat or frame any portion of the Partiac Service;

•  Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our technology infrastructure or otherwise make excessive traffic demands of the Partiac Service;

•  Attempt to gain unauthorized access to the Partiac Service, User accounts, computer systems or networks connected to the Partiac Service through hacking, password mining or any other means;

•  Use the Partiac Service or any content posted on the Partiac Service to transmit any computer viruses, worms, defects, trojan horses or other items of a destructive nature (collectively, “Viruses”);

•  Use any device, software or routine that interferes with the proper working of the Partiac Service, or otherwise attempt to interfere with the proper working of the Partiac Service;

•  Use the Partiac Service to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Partiac Service or content posted on the Partiac Service; or

•  Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Partiac Service, features that prevent or restrict the use or copying of content posted on the Partiac Service, or features that enforce limitations on the use of the Partiac Service.

 

6.  PRIVACY POLICY

You represent that you have read and understood our Privacy Policy as set forth in this Section 6.  Please note that we may disclose information about you to third parties if we have a good faith belief that such a disclosure is reasonably necessary to (i) take action regarding suspected illegal activities; (ii) enforce or apply our Terms of Service and Privacy Policy; (iii) comply with legal process or other government inquiry, such as a search warrant, subpoena, statute, judicial proceeding, or other legal process served on us; or (iv) protect our rights, reputation, and property, or that of our users, affiliates, or the public. If you use the Partiac Service outside of the United States, you consent to having your personal data transferred to and processed in the United States.

This Privacy Policy describes our policies on the collection, use, and disclosure of your information in connection with your use of the Partiac Service. When you use the Partiac Service, you consent to our collection, use, and disclosure of your information as described in this Privacy Policy.

A.  Information You Submit

We may store the information you submit to or through the Partiac Service. We use the information to fulfill your requests, provide Partiac Service functionality, improve Partiac Service quality, personalize your experience, display relevant advertising, provide customer support, message you, back up our systems, allow for disaster recovery, and comply with legal obligations. Among the information you submit to or through the Partiac Service, please note:

i.  Account Registration.  You must provide a valid email address in order to sign up for an Account on the Partiac Service.  In addition, you may provide us with your full name, gender, and birth date.  When you sign up for an account, you are consenting to receive communications, including emails, from us, from Business owners, and potentially from other Users if such functionality exists.  You can manage your preferences and modify some of the information associated with your account by contacting us.  Note that you cannot opt out of receiving required administrative or legal notices.  If you feel that an unauthorized account has been created depicting you or your likeness, you can request its removal by contacting us.

ii.  Public Content.  Your check-ins, comments, reviews, tips, photos, message board posts, bookmarks, friends, lists, compliments, account profile, and other content you post to the Partiac Service are meant for public consumption. We may display this content on the Partiac Service, and further distribute it to a wider audience through third party sites and services.

iii.  Contacts.  You can invite your friends to join the Partiac Service by providing their contact information, or by allowing us to use your address book from your computer, mobile device, or other sites. If you invite a friend to join and connect with you on the Partiac Service, we may use and store your friends’ contact information long enough to process your requests.

iv.  Credit Card Purchases.  If you are a Business which has subscribed to the Partiac Service, or a User who has elected to subscribe to point of sale transaction functionality (once such functionality is offered) through the Partiac Service, we may collect and store billing and credit card information. This information will only be shared with third parties who perform tasks required to complete the purchase transaction (such as fulfilling orders and processing credit card payments).

For more information on controlling your personal data, please see below.

B.  Information We Collect

In addition to the information you submit to or through the Partiac Service, we also collect and store information from and about you in the course of your use of the Partiac Service. We use this information to analyze and track user behavior in order to provide metrics and analytics to Businesses and Users using the Partiac Service, personalize your experience, associate it with other information about you, provide the functionality and improve the quality of the Partiac Service, and may share these metrics and analytics with third parties.

For example:

i.  Location.  We will collect and store information about those venues which you visit while using the Partiac Service.  We may collect and store information about your location if you enable your computer or mobile device to send us location information. You may be able to change the settings on your computer or mobile device to prevent it from providing us with such information.

ii.  Activity.  We may collect and store information related to you and your use of the Partiac Service, such as your browser type, IP address, unique device identifier, the phone numbers and names of Businesses that you patronize while using the Partiac Service, requested URL, referring URL, browser language, the pages you view, and the date and time of your visit.

iii.  Cookies.  We may use cookies, web beacons, local shared objects (sometimes called “flash cookies”), and similar technology in connection with your use of the Partiac Service (“Cookies”). Cookies may have unique identifiers, and reside, among other places, on your computer, in emails we send to you, and on our web pages. Cookies may transmit information about you and your use of the Partiac Service, such as your browser type, search preferences, data relating to advertisements that have been displayed to you or that you have clicked on, and the date and time of your use. You can disable some (but not all) Cookies in your device or browser settings, but doing so may affect your ability to use the Partiac Service.

C.  Third Parties

We may rent, share, sell or trade all personally identifiable information that you provide to us while using the Partiac Service excluding your name and any payment information (such as credit card numbers) with third parties.  By using the Partiac Service, you hereby consent to our doing so.

D.  Controlling Your Personal Data

Other Users may be able to identify you, or associate you with your account if you include personal information in Your Content. You can reduce the risk of being personally identified by using the Partiac Service pseudonymously.

Please also note that the messages you send or receive using the Partiac Service (if any) are only private to the extent that you and the sender/recipient keep them private. For example, we do not have any control over whether a recipient of one of your personal messages publicly posts it or its contents.

E.  Data Retention and Account Termination

The information we obtain from or about you may be processed and stored in the United States of America. We may keep it as long as is permitted or required under the law.  If you terminate your account, we will remove your Public Content from the Partiac Service, but may (but are under no obligation to) retain your data for a period of 5 years (or longer if required by law) in our active systems in order to ensure our ability to satisfy the authorized uses under this Privacy Policy.  For example, we may use retained data to prevent, investigate, or identify possible wrongdoing in connection with the Partiac Service or to comply with legal obligations.  Please note that information may exist in backup storage even after it has been removed from our active databases.

We will respond to requests relating to personal data sent from within the European Union (if any) according to the procedures mandated by the member state from where the request is sent.

F.  Security

We follow generally accepted industry standards to protect the personal information submitted to us, both during transmission and once we receive it.  No method of transmission over the Internet or via mobile device, or method of electronic storage, is 100% secure, however.  Therefore, while we strive to use commercially acceptable means to protect your personal information, we cannot guarantee its absolute security.

G.  Modifications to This Privacy Policy

We may revise this Privacy Policy from time to time. The most current version of the Privacy Policy will govern our use of your information and will be located here.  If we make material changes to this Privacy Policy, we will notify you by email or by posting a notice on the Partiac Service prior to the effective date of the changes. By continuing to access or use the Partiac Service after those changes become effective, you agree to be bound by the revised Privacy Policy.

 

7.  LIMITATION OF LIABILITY

PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF PARTIAC AND ITS SUBSIDIARIES, AFFILIATES, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, AND LICENSORS (COLLECTIVELY, THE “PARTIAC ENTITIES”). EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.  NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED.  THE PARTIAC SERVICE IS MADE AVAILABLE TO YOU ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS.  YOUR USE OF THE PARTIAC SERVICE IS AT YOUR OWN DISCRETION AND RISK.  THE PARTIAC ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE PARTIAC SERVICE, ITS SAFETY OR SECURITY, OR THE PARTIAC SERVICE CONTENT.  ACCORDINGLY, THE PARTIAC ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF THE CONTENT ON THE PARTIAC SERVICE

THE PARTIAC ENTITIES MAKE NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY, SUCH AS THE BUSINESSES LISTED ON THE PARTIAC SERVICE OR THE PARTIAC SERVICE’S USERS.  ACCORDINGLY, THE PARTIAC ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE FROM THEIR ACTIONS, INCLUDING, FOR EXAMPLE, IF ANOTHER END USER MISUSES YOUR CONTENT OR IDENTITY, OR IF YOU HAVE A NEGATIVE EXPERIENCE WITH ONE OF THE BUSINESSES LISTED ON THE PARTIAC SERVICE.  YOUR PURCHASE AND USE OF PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH THE PARTIAC SERVICE IS AT YOUR OWN DISCRETION AND RISK.

THE PARTIAC ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO THE PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE PARTIAC SERVICE, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO YOU BY A REPRESENTATIVE OF ONE OF THE PARTIAC ENTITIES SHALL CREATE A REPRESENTATION OR WARRANTY.

YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE PARTIAC SERVICE, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE PARTIAC SERVICE. THE PARTIAC ENTITIES’ MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE PARTIAC SERVICE OR THESE TERMS OF SERVICE IS LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO THE PARTIAC ENTITIES IN CONNECTION WITH THE PARTIAC SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY, OR (ii) $50.

THE PARTIAC ENTITIES DISCLAIM LIABILITY AND SHALL NOT BE LIABLE FOR ANY (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF PROFITS, (iii) BUSINESS INTERRUPTION, (iv) REPUTATIONAL HARM, OR (v) LOSS OF INFORMATION OR DATA.  IN NO EVENT SHALL THE PARTIES ENTITIES BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH (1) ANY USE OF THE PARTIAC SERVICE OR THE CONTENT POSTED ON THE PARTIAC SERVICE, (2) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE PARTIAC SERVICE), (3) THE PERFORMANCE OR NON-PERFORMANCE OF ANY BUSINESS IN CONNECTION WITH THE PARTIAC SERVICE.  IN ADDITION, ALL END USERS SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING END USERS TO THE PARTIAC SERVICE BY REFERRAL, LINK OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE PARTIAC SERVICE OR THE CONTENT POSTED ON THE PARTIAC SERVICE.  THE PARTIAC ENTITIES ARE NEITHER AGENTS OF NOR ARE CONNECTED WITH ANY BUSINESS FEATURED ON THE PARTIAC SERVICE.

 

8.  INDEMNITY

You agree to defend, indemnify and hold harmless the Partiac Parties from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Partiac Service, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any claims or damages that arise as a result of any of Your Content or any that is submitted via your account; or (vi) any other party’s access and use of the Partiac Service with your username, password or other appropriate security code.

 

9.  TERMINATION

You may terminate the Terms of Service at any time by closing your account and discontinuing your use of the Partiac Service.  Please review our Privacy Policy for information about what we do with your account when terminated.

We may close your account, suspend your ability to use certain portions of the Partiac Service, and/or ban you altogether from the Partiac Service for any or no reason, and without notice or liability of any kind. Any such action could prevent you from accessing your account, the Partiac Service, Your Content, or any other related information.

In the event of any termination, whether by you or us, these Terms of Service will continue in full force and effect, including our right to use Your Content.

 

10.  ARBITRATION

Any dispute arising from or relating to the subject matter of these Terms of Service shall be finally settled by arbitration in Orange County, California, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having 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. Any arbitration under these Terms of Service will take place on an individual basis: class arbitrations and class actions are not permitted.  YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND US ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.  Notwithstanding the foregoing, each party shall have the right to institute an action at any time in a court of proper jurisdiction for injunctive or other equitable relief provided that such relief is needed on an exigent basis and cannot be obtained in arbitration, and that any such action be stayed as soon as such relief is granted or denied, so that arbitration will proceed as the sole forum for resolution of the dispute.

 

11.  END USER LICENSE GRANT

A.  Partiac Service

Subject to the terms and conditions of these Terms of Service, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Partiac Service for your personal, non-commercial use, except as otherwise permitted by these Terms of Service.  Partiac reserves all rights not expressly granted herein in the Partiac Service and its Content (as defined above).  Partiac may terminate this license at any time for any reason or no reason.

B.  Mobile Software / Application

We make available software to access the Partiac Service via a mobile device (“Application”). To use the Application, you must have a mobile device that is compatible with the Partiac Service. We do not warrant that the Application will be compatible with your mobile device. We hereby grant you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Application for one Partiac account on one mobile device owned or leased solely by you, for your personal, non-commercial use, except as provided in these Terms of Service. You may not: (i) modify, disassemble, decompile or reverse engineer the Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Application to any third party or use the Application to provide time sharing or similar services for any third party; (iii) make any copies of the Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Application, features that prevent or restrict use or copying of any content accessible through the Application, or features that enforce limitations on use of the Application; or (v) delete the copyright and/or other proprietary rights notices on the Application.  You acknowledge that we may from time to time issue upgraded versions of the Application, and may automatically electronically upgrade the version of the Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms of Service will apply to all such upgrades.  Any third-party code that may be incorporated in the Application is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Application or any copy thereof, and we or our third party partners or suppliers retain all right, title, and interest in the Application (and any copy thereof).

i.  Application Downloaded From Apple App Store

This paragraph is intended to apply to you if you have downloaded the Application from the Apple App Store.  You and we acknowledge that these Terms of Service are concluded between we and you only, and not with Apple Inc. (“Apple”), and as between we and Apple, we, not Apple, is solely responsible for the Application and the Partiac Service and the content thereof.  You acknowledge that Apple, Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). You 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.

This Agreement incorporates by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/). For purposes of these Terms of Service, the “Application” is considered the “Licensed Application” as defined in the LAEULA and “Partiac” is considered the “Application Provider” as defined in the LAEULA. If any terms of these Terms of Service conflict with the terms of the LAEULA, the terms of these Terms of Service shall control.

 

12.  MISCELLANEOUS

A.  Entire Agreement / Severability

These Terms of Service, together with any amendments and any additional agreements you may enter into with us in connection with the Partiac Service, shall constitute the entire agreement between you and us concerning the Partiac Service. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect.

B.  No Waiver

No waiver of any term of these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision.

C.  Third Party Beneficiaries and Agreements

If you downloaded the Application from the Apple App Store, you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as a third party beneficiary hereof.  You agree to comply with, and your license to use the Application and Partiac Service is conditioned upon your compliance with, all applicable third-party terms of agreement, as may be applicable, when using the Application and/or Partiac Service.

D.  Assignment

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction or notice.

E.  Special Provisions Applicable to Users Outside the United States

The following provisions apply to users outside the United States: You consent to having your personal data transferred to and processed in the United States. If you are located in a country embargoed by the United States, or are on the U.S. Treasury Department’s list of Specially Designated Nationals you will not engage in commercial activities using the Partiac Service.

F.  Third Party Links

The Partiac Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by us. We do not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third party website from the Partiac Service, such as through Facebook Connect or Twitter, you do so at your own risk, and you understand that these Terms of Service and Privacy Policy do not apply to your use of such sites. You expressly release us from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers and Businesses found on the Partiac Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such third parties. You agree that we shall not be responsible for any loss or damage of any sort relating to your dealings with such third parties.

G.  Notices

We may provide notices, whether such notices are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, or Apple App Store, as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in these Terms of Service.

H.  Governing Law

The laws of State of California, excluding its conflicts-of-law rules, govern these Terms of Service and any dispute arising thereunder.  To the extent applicable, you expressly agree that exclusive jurisdiction for any claim or action arising out of or relating to these Terms of Service shall be the federal or state courts that govern Orange County, California, and you expressly consent (to the extent applicable) to the exercise of personal jurisdiction of such courts in connection with any dispute, including any claim involving us or our affiliates, subsidiaries, contractors, vendors and content providers.  This section is not intended to abrogate or diminish your agreement to arbitrate all disputes as set forth in Section 10 (“ARBITRATION”) above.  Please note that your conduct may also be subject to other local, state, national, and international laws. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to these Terms of Service or to any dispute or transaction arising out of these Terms of Service.

 

I.  Contact Us

Should you wish to contact us with any questions, complaints or claims with respect to the Partiac Service, you should visit our website at www.partiac.com and use the contact information there provided.

4845-0779-7546.1

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