Terms and Conditions for the Upfluence Shopper Program

Last update: May 6th, 2020

The terms and conditions set forth here (hereinafter the “Terms and Conditions”) govern your participation in the Shopper’s Program (the “Program”) for this merchant’s website (and any affiliated mobile website) (collectively, the website(s) and mobile enabled website are referred to as the “Merchant’s Website”, and the operator and owner of the website is referred to as the “MERCHANT”).
Please note that these Terms and Conditions are separate from and independent of any terms and conditions or terms of use governing the operation and/or use of the Merchant’s Website. These Terms and Conditions form an agreement directly between you, the Shopper, and Upfluence, Inc. with respect to this Program only (the “Agreement”). You will therefore continue to be subject to any terms of use governing use of the Merchant’s Website as well as any privacy policies that relate to the Merchant’s Website.
To the extent that there may be any conflict between these Terms and Conditions and (i) any Privacy Policy pertaining to the Program, or (ii) any other terms of use or privacy policy, these Terms & Conditions will control in connection with any matter relating to the Program. Upfluence is not responsible, however, for, and does not operate or control the Merchant’s Website, and therefore, in any matter between you and the Merchant’s Website or its owner and operator, you will look solely to such Merchant’s Website (and the MERCHANT) and not Upfluence. We are not responsible for any products, services, shipping, returns, or other transactions taking place between you and MERCHANT over the Merchant’s Website.
If you may have any questions about opt-in or opt out of this Program or marketing and email lists, however, please contact us directly at legal@upfluence.com.

The Shopper’s Program

Upfluence, Inc. (“Company”) is working with MERCHANT to offer a direct marketing opportunity to customers shopping at the Merchant’s Website. Specifically, Company is working with MERCHANT to explore analytics that may be used in connection with providing or operating online or other marketing programs through social media or otherwise through digital channels, and which may result to extend customer benefits and privileges to users that become Members of the Program. These benefits may include one or more of the following: membership in an email marketing list to be advised of special events, sales, receiving company news, or a newsletter or additional or discounted offers that extended from time to time by the MERCHANT.

Acceptance of Terms

By entering your email address and/or social media handle as required, and checking on the box stating “I Agree”, you agree to the terms and conditions, rules, regulations, policies and procedures of the Program, including these Terms and Conditions, including the provisions relating to governing law, mandatory arbitration of all disputes on an individual (i.e., non-class action) basis, and venue of any dispute. You also agree that you have read and agree to the Program’s Privacy Policy. If you do not agree to these Terms and Conditions, you may access the Merchant’s Website without becoming a Member of the Program.

Membership Eligibility

The Program is open to individuals (not corporations), (ii) who are at least 18 years of age (or the age of majority, whichever is younger in your home country/state). If you are not old enough to enter into a binding contract where you live, you may not become a Member, but you may do so through your parent and legal guardian. Members may join the Program by entering their email addresses and social media handles, as set forth in the box – you do not need to make a purchase from the Merchant’s Website to join. You must only enroll yourself, and provide complete, accurate, and current information about yourself and your contact/handle information provided.
Your providing your contact information and enrolling in the Program will constitute your agreement to these Terms and Conditions, but please note that Company may refuse membership to any Shopper who does not adhere to the rules and policies of the Program, or who otherwise violates the enrollment procedures, these Terms & Conditions or any applicable Privacy Policy. Company reserves the right to revoke your Membership or any or all benefits to which you may be entitled, if Company’s sole discretion, if you may use the Program for improper or fraudulent purposes (including commercial purposes), violates these Terms and Conditions, or seeks or obtains benefits through deception, forgery and/or fraud. In the event you’re your Membership may be cancelled or revoked due to an improper act or other violation of this Agreement, the Company/MERCHANT may revoke or rescind without penalty or compensation any awards, discounts, loyalty points, or other benefits earned by you in connection with your Membership.

Company Reserves the Right to Change the Terms or Cancel the Program At Any Time

You agree and acknowledge that the Company may, in its sole discretion and from time to time alter, amend, modify or limit the Program rules, policies, or any benefits offered under the Program, if any. The Company may also terminate the Program at any time, for any reason, without prior notice to you. Modifications to the Program (including any changes to these Terms and Conditions) shall be made at the Merchant’s Website; alternatively, or in addition, we may email you or contact you through other digital channels and contact information that you provide to us – such as social media direct message, phone sms, or otherwise – about any such changes or mod. Your continued participation in the Program will confirm your acceptance of such changes. We reserve the right to disqualify Members who have violated any of the Program Terms and Conditions.

Digital Communications

MERCHANT may, from time to time, communicate with you via certain digital and other channels: including mail, email, sms, direct message and other channels or contact means that you may provide, unless you may have elected to opt out of receiving marketing communications. MERCHANT may use these digital channels to notify you if you are eligible for discounts, awards, or other member benefits, at MERCHANT’s sole discretion. Please note that if you may opt out of receiving marketing communications, the Company still may send you communications about the Company’s business, this Program, your account and other non-marketing communications via the same channels, while this Agreement continues in effect.
It is your obligation to maintain current contact information for your Membership, and the Company cannot be responsible for any failure to maintain your membership or contact information current.

Data Privacy Policy

Please see our Privacy Policy for information about the data we collect and how it may be used. The data we receive is all provided by you, the MERCHANT, and, as available, may also be provided by social media platforms for the social media handle(s) you provide.

Membership is Personal to You

The Program Membership is specific to you, and only you, and no benefits, awards, offers, coupons, loyalty “points” or discounts, if any, and as may be applicable for any Merchant’s Website (collectively “Membership Benefits”) may be transferred to any person, nor may they be assigned, swapped, bartered, auctioned, exchanged or traded, whether for money, any items of value, or other consideration. No Membership Benefits, if any, may be exchanged after the termination of this Agreement for any reason, and are not “gift certificates”, “store credits” for returned merchandise or services, and are, furthermore, not descendible or transferable in part or in whole, and as such, they will terminate automatically upon your death or in the event of your bankruptcy.

Taxes

If there may be any income, sales, use, Value Added or other tax that may arise or be payable due to any coupons, discounts or offers, or other Membership Benefits, or otherwise in connection with the Member’s participation in or use of the Program, Member will be solely responsible to pay such taxes (apart from Company’s or Customer’s income taxes, of course).

Limitation of claims

To the fullest extent permissible under applicable law, neither Upfluence nor Customer will be responsible or liable for any direct, indirect, incidental, consequential or any other damages under any contract, negligence, strict liability or other theory arising out of or relating in any way, directly or indirectly, to your participation in the Program. This applies even if foreseeable or even if Company has been advised of the possibility of such damages. In New Jersey, and potentially other states, this limitation may apply solely to claims based on breach of warranty.

RELEASE OF LIABILITY AS TO MERCHANT’S WEBSITE, PRODUCTS, SERVICES

UPFLUENCE IS A TECHNOLOGY SERVICES PROVIDER, AND IS NOT A MERCHANT OR SERVICE PROVIDER; AS SUCH YOU WILL LOOK SOLELY TO MERCHANT WITH RESPECT TO THE PROVISION OF ANY PRODUCTS OR SERVICES IN CONNECTION WITH THE WEBSITE. YOU WILL FURTHER RELEASE UPFLUENCE, INC. AND ITS SUBSIDIARIES, DIVISIONS, AND AFFILIATE ENTITIES, ALONG WITH EACH SUCH COMPANY’S RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM AND AGAINST ANY AND ALL LIABILITY RELATING TO (i) ANY FAILURE BY MERCHANT TO FULLY REDEEM OR OTHERWISE PROPERLY PROVIDE TO YOU THE DISCOUNTS, LOYALTY POINTS, AWARDS, OR OTHER MEMBERSHIP BENEFITS THAT MAY BE DUE TO YOU UNDER OR OTHER YOUR MEMBERSHIP, (ii) ANY CONTENT THAT MAY BE PROVIDED TO YOU VIA DIGITAL CHANNELS BY MERCHANT, AND (iii) ANY DATA OR PERSONAL INFORMATION (“INFORMATION”) THAT MERCHANT MAY PROVIDE TO UPFLUENCE, WHETHER IN KEEPING WITH OR IN VIOLATION OF SUCH MERCHANT’S PRIVACY POLICY OR AGREEMENT WITH YOU. IN ALL SUCH CASES, YOU WILL LOOK SOLELY TO MERCHANT.

LIMITATION OF LIABILITY

NO WARRANTY

TO THE EXTENT ANY AWARDS OR POINTS MAY BE AWARDED UNDER THIS AGREEMENT OR THE PROGRAM, UPFLUENCE DOES NOT MAKE ANY MAKE ANY EXPRESS OR IMPLIED WARRANTY REGARDING SUCH REWARDS OR POINTS. UPFLUENCE FURTHER DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY PRODUCTS OR SERVICES RELATED TO SUCH PROGRAM OR PRODUCTS OR SERVICES OTHERWISE PURCHASED BY OR THROUGH THE MERCHANT. UPFLUENCE ALSO DOES NOT MAKE ANY GUARANTY OR WARRANT THE PERFORMANCE OF MERCHANT WITH RESPECT TO ANY REWARDS OR OFFERS PROVIDED IN CONNECTION WITH THE PROGRAM, AND DISCLAIMS ALL WARRANTIES OF ACCURACY, RELIABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM, INCLUDING BUT NOT LIMITED TO THE ACCURACY OR COMPLETENESS OF ANY PRODUCTS, CONTENT CONTAINED THEREIN OR PROVIDED BY US, OR THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION OR DATA THAT WE MAY PROVIDE TO YOU OR TO OTHERS, SO LONG AS IT IS NOT INTENTIONALLY MISLEADING. WE DO NOT REPRESENT, WARRANT, COVENANT OR GUARANTEE THAT ACCESS TO ANY PRODUCT, THE PROGRAM OR ANY SERVICES OR COMMUNICATIONS/ MESSAGING FROM OR TO US WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE, OR THAT THERE WILL BE NO FAILURES, DELAYS, INACCURACIES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED CONTENT, DATA, OR PRODUCTS, OR THAT NO SOFTWARE DISABLING OR DISRUPTING DEVICES, VIRUSES, WORMS, BUGS, OR DEFECTS OF SIMILAR NATURE WILL BE TRANSMITTED, AND WE WILL NOT BE LIABLE IN THE EVENT OF ANY SUCH OCCURRENCE. WE FURTHER DO NOT REPRESENT, WARRANT, COVENANT OR GUARANTEE THAT ANY PART OR ALL OF THE SERVICE OR THE PROGRAM CAN BE ACCESSED VIA ALL DEVICES, OR IS AVAILABLE IN ALL GEOGRAPHIC LOCATIONS.
THE AGREEMENT IS NOT SUBJECT TO THE LAWS OF SUCH STATES, BUT TO THE EXTENT A CLAIM IS BROUGHT THEREIN, OR A DIFFERENT STATE’S LAW IS FOUND TO APPLY THAN AS SET FORTH HERE, OUR LIABILITY AND WARRANTIES ARE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOUR AGREEMENT TO THESE TERMS AND CONDITIONS WAIVES CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, IN PART:
“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”.
IN NO EVENT SHALL UPFLUENCE’S TOTAL CUMULATIVE LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) EXCEED THE AMOUNTS PAID BY YOU (NET OF RETURNS), IF ANY, DURING THE PREVIOUS TWELVE (12) MONTHS MAKING BONA FIDE GOOD FAITH PURCHASES AT MERCHANT’S WEBSITE, OR $200, WHICHEVER IS GREATER.

MANDATORY ARBITRATION OF DISPUTES. CLASS ACTION WAIVER.

ANY DISPUTE RELATING IN ANY WAY TO THESE TERMS AND CONDITIONS OR UPFLUENCE’S PROGRAM, INCLUDING CLAIMS BASED ON STATE OR FEDERAL STATUTES, SHALL BE SUBMITTED TO CONFIDENTIAL ARBITRATION IN NEW YORK COUNTY, NEW YORK. SUCH PROCEEDINGS SHALL BE CONDUCTED UNDER THEN PREVAILING RULES OF JAMS ADR PERTAINING TO THE TYPE OF DISPUTE AT ISSUE. THE ARBITRATOR’S AWARD SHALL BE BINDING AND FINAL AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION. UNDER THIS AGREEMENT, EACH OF COMPANY AND MEMBER UNDERSTANDS AND AGREES THAT BY ACCEPTING THESE TERMS AND CONDITIONS, AND ENTERING THIS AGREEMENT, THEY ARE GIVING UP THEIR RIGHT TO A COURT PROCEEDING OR A JURY TRIAL. COMPANY AND MEMBER FURTHER AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ARBITRATION OR ACTION. NOTWITHSTANDING THE FOREGOING, THIS MANDATORY ARBITRATION PROVISION SHALL NOT APPLY TO ANY CLAIM BROUGHT BY UPFLUENCE CONCERNING A CLAIM CONCERNING OR ALLEGING A VIOLATION OR THREATENED VIOLATION OF UPFLUENCE’S INTELLECTUAL PROPERTY RIGHTS, IN WHICH CASE COMPANY MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK. MEMBER CONSENTS TO EXCLUSIVE JURISDICTION AND VENUE IN THESE COURTS. IN THE EVENT THAT THE ADMINISTRATIVE FILING FEES AND DEPOSITS THAT MUST BE PAID TO INITIATE ARBITRATION AGAINST UPFLUENCE EXCEED $150 USD, UPFLUENCE AGREES TO PAY THEM AND/OR ADVANCE THEM ON YOUR BEHALF, SUBJECT TO ULTIMATE ALLOCATION BY THE ARBITRATOR. IN THE EVENT THAT UPFLUENCE MAY PREVAIL IN SUCH ARBITRATION, PROVIDED THAT YOU HAVE REASONABLE MEANS TO PAY SUCH AMOUNTS, IT SHALL BE ENTITLED TO RECOVER THE FEES THAT IT MAY HAVE ADVANCED ON YOUR BEHALF UNDER THIS PROVISION, AS WELL AS ANY OTHER AMOUNTS IN THE REASONABLE JUDGMENT OF THE ARBITRATOR. IF YOU ARE ABLE TO DEMONSTRATE THAT THE COSTS OF ARBITRATION WILL BE PROHIBITIVE AS COMPARED TO THE REASONABLE COSTS OF LITIGATION OF THE SAME CLAIM, UPFLUENCE WILL PAY AS MUCH OF YOUR FILING AND HEARING FEES IN CONNECTION WITH THE ARBITRATION AS THE ARBITRATOR DEEMS NECESSARY TO PREVENT THE ARBITRATION FROM BEING COST-PROHIBITIVE, TAKING INTO CONSIDERATION THE REASONABLE LIKELY MAXIMUM VALUE OF YOUR CLAIM. NO CLAIMS ARISING FROM YOUR VIOLATION OR THREATENED VIOLATION OF UPFLUENCE’S INTELLECTUAL PROPERTY RIGHTS SHALL BE SUBJECT TO THIS ARBITRATION PROVISION.
ANY CLAIM BROUGHT BY EITHER PARTY SUBJECT TO THIS ARBITRATION PROVISION MUST BE FILED WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO SUCH CLAIM, OTHERWISE, THE CLAIM IS BARRED AND THE RIGHT TO PURSUE SUCH CLAIM OR OCCURRENCE IS WAIVED.

GOVERNING LAW

These Terms and Conditions, as well as the relationship between you and the Company, shall be governed by, construed and enforced in accordance with the laws of the State of New York, without giving effect to any conflict of law provisions.