SHOPKICK™ PROGRAM TERMS OF SERVICE

This is an agreement between you and shopkick, Inc. (“shopkick” or “we”). Please read the following terms and conditions carefully. These terms, along with the Privacy Policy discussed below, (together, these terms and the Privacy Policy are called the “Terms”), govern your access to and use of the shopkick mobile application (the “Application”) and any related interactive and informational services made available to consumers (“Services”) on any media platform (as described below) (together, the Application and Services are called the “Program”), and constitute a binding legal agreement between you, as a user of the Program, and shopkick, the provider of the Program (the “Agreement”). Your access to and use of the Program requires your compliance with the Terms. By downloading the Application, or accessing and/or using any portion of the Program, you agree to be bound by this Agreement.

License

Subject to your compliance with the Terms, you may download and install one (1) copy of the Application to your supported device, and access and use the Services, solely for your own personal and non-commercial use. You may not: (i) copy, modify or distribute the Application for any purpose; (ii) transfer, sublicense, lease, lend, rent or otherwise distribute the Application or the Services to anyone else; (iii) reverse-engineer, decompile or create derivative works of the Application or the Services; (iv) make the functionality of the Application or the Services available to multiple users through any means; (v) use multiple accounts per individual user per device; or (v) use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Terms. No other licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by shopkick or its licensors.

Messaging

As part of the Services we provide, you may receive push notifications, local client notifications, text messages, pictures messages, alerts, emails or other types of messages directly sent to you outside or inside the Application (“Push Messages”). You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services or through the phone’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please be aware that messaging fees may apply depending on the message plan you have with your wireless carrier.

Registration

In order to access certain features of the Services, you have to create a file with us (an “Account”). Even if you do not “register” with a username and/or password, we still need to create an Account for you in order to customize your Application experience and show you more relevant information. To create an Account, you must be a legal resident of the 50 United States (or the District of Columbia) who is at least 13 years of age or older at the time of registration, to participate in the Program. If you are younger than 18 years of age, then you need to ensure that your parents consent to your using the Services and redeeming rewards. If you register, you will be asked to choose a user name and a password. You agree not to disclose your password to anyone else and that you will be solely responsible for any activities or actions taken under your Account, whether or not authorized by you. Please notify us immediately of any unauthorized use of your password or your Account. We are not liable for any loss or damage from your failure to comply with these requirements. You agree that the information you provide us will be true, accurate, current and complete. By creating an Account you consent to the use of: (i) electronic means to complete the Terms and to provide you with any notices given pursuant to the Terms; and (ii) electronic records to store information related to the Terms or your use of the Services.

Earning kicks™, Bonuses and Other Awards

You may earn kicks rewards in a variety of ways as indicated through the Application. You are responsible for ensuring that kicks are properly credited and you should check your account regularly. kicks for walking-in can only be earned by physical presence at eligible walk-in locations that are open for business and active at the time you have the application open, have cell phone network reception, are accessing the relevant pages in the application, and have kicks available for distribution at the time. You may not purchase, combine or transfer kicks with other members of the Program (“Members”) or any other person, and any attempt to do so may result in disqualification from the Program and forfeiture of all kicks in your account. Bonus kicks and other types of bonuses may be earned in a variety of ways as specified by shopkick, including completing a “Bonus Set,” making certain purchases, “checking-in” to a retailer near your actual physical location, and/or scanning product codes from a participating brand when you are physically present at a retailer (collectively, “Bonuses”).

Automatic Expiration: Unless otherwise indicated by shopkick: (i) Bonuses expire automatically within 30 days after they are awarded, if not used or redeemed, and (ii) kicks unlocked but not earned expire automatically within 30 days, or as otherwise indicated in the Application .

shopkick reserves the right to change, add or remove Bonus Sets and Bonus types, and the methods by which Members can earn and redeem kicks, Bonuses or Bonus Sets, or other awards, for any reason and without notice to you, in its sole discretion and at any time.

If you believe that kicks or Bonuses or other awards were not properly accrued to your account, please notify shopkick by using the “Contact Us” form on the website within 30 days of when you think the error occurred. Allow 30 days for any claims to be researched and corrected as needed. shopkick’s determination will be final. Unfortunately we cannot guarantee that kicks or Bonuses or other awards that you believe should have been accrued can be credited to you later, if shopkick cannot determine the precise location you were in, or the action you took on the shopkick application or at a store, at the time when you believe the kicks or Bonuses or other awards should have been credited. Among other reasons, technical problems with a check-in or scanning system or verification of transaction information may result in your action not being detected or verified accurately by the shopkick Application. While we try to prevent that from happening, neither we nor our affiliates and business partners can be held liable for your inability to accrue kicks or Bonuses or other awards in such event.

Redeeming kicks, Bonuses and Other Awards for Rewards

You may redeem kicks, Bonuses and other awards for various rewards (“Rewards”) listed in the Rewards section of the shopkick Application while supplies last and/or during the time periods specified. You can select any item still available for which you have accumulated sufficient kicks and Bonuses for redemption. To redeem, click the selected item and follow instructions provided to claim the Reward. For some Rewards, for example a “virtual store card,“ you may see on your mobile or other device, or receive an email containing, a unique code that you will need to present to a store sales associate to redeem your Reward. Once the code of the virtual store card is sent to you, the redemption process and the store card itself is handled by the store the card is to be used at, and shopkick is not responsible or liable for its value or the process. Emails will be sent to the email address you provide. Other Rewards may require a mailing address to ship the Rewards. You are responsible for maintaining the accuracy of your contact information in your Account. shopkick may modify the list of Rewards periodically, and reserves the right to modify the kicks values of the Rewards at any time for any reason. shopkick is not the supplier of any Reward, and is not liable or responsible for its fulfillment or proper condition or value. Please contact the supplier of the Reward directly with any claims that you may have.

kicks can be used as soon as they are reflected in your Account balance or may be accrued over time for later use prior to expiration or forfeiture, or termination of the Program. Some Rewards may require additional time before they can be fulfilled. kicks and Bonuses have no cash value and may only be redeemed for Rewards offered in this Program. kicks and Bonuses earned are not your property and cannot be sold, transferred, or assigned. kicks and Bonuses may be revoked at any time by shopkick. All redemptions of kicks and Bonuses for Rewards are final. Refunds, exchanges and other issues regarding the redeemed item are governed by the Reward supplier’s terms and conditions applicable to the item, including any warranty, and are not the responsibility of shopkick. Restrictions may apply to certain Rewards. Terms and conditions of Rewards are disclosed on the Application. Merchants participating in shopkick are subject to change at any time. You are responsible for the payment of any applicable taxes that may result from Rewards received as part of the Program. Rewards pictured on the shopkick application may not necessarily reflect exact colors or models of actual Rewards due to model variations and/or manufacturer’s updates.

Merchandise rewards that are not available to be claimed in-store or within the Application will be shipped via U.S. mail (or other carrier at the discretion of shopkick) within six to eight weeks from date of Reward redemption. Merchandise can only be shipped to approved U.S. shipping locations. Some merchandise Rewards require a street address for shipment. shopkick reserves the right to substitute merchandise of equal or greater value in place of unavailable merchandise, or to refund kicks that were redeemed for unavailable merchandise. All Program Rewards are provided “as is” without warranty of any kind, either express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose or non-infringement.

Forfeiture of kicks and Bonuses for Inactivity or Account Termination/Cancellation

We may deem your Account inactive if you have not actively used the Application for 180 days or more. Once your Account is deemed inactive, shopkick may forfeit any or all kicks, Bonuses and other awards within your Account at any time, without notice. Any inactive Account may be terminated by shopkick, at any time and without notice, and in that case, any kicks, Bonuses and Other Awards within the Account will be immediately and automatically forfeited. You may terminate your Account at any time by sending an email with the subject line “Please Cancel My shopkick Membership” to support@shopkick.com and requesting to be removed from the Program. By canceling your shopkick membership, the Account registered to you will be terminated and all kicks, Bonuses and other awards immediately forfeited. Abuse of the Program, including, without limitation, failure to follow the Terms, Program policies and procedures or other improper conduct as determined by shopkick in its sole discretion may result in cancellation, termination or suspension of your Account and/or forfeiture of all kicks, Bonuses and other awards accrued, as well as disqualification from future programs.

Privacy

Our goal is to make the Program as good, useful and rewarding for you as possible. In order to do that, we need to collect and process information from you when you use the Program. We will collect certain personally identifiable information from you as set forth in more detail in our Privacy Policy http://www.shopkick.com/privacy-policy.html, which is part of the Terms. When you use the Program, shopkick has access to, and in many cases will monitor, your usage of the Program as you send and receive Content (defined below). By accessing and using the Program, you agree that we may collect, use and disclose, as set forth in the Privacy Policy, certain information you provide during your access to or use of the Program, and in some cases information that is provided to the Program by other parties. As part of providing you the Program, we may need to provide you with certain infrequent service communications, such as service announcements and administrative messages (“Service Communications”). These Service Communications, which will not include advertisements, are considered part of the Services and your Account, which you may not be able to opt-out from receiving.

Kicks When You Buy

Our Kicks When You Buy program, also referred to as kicks for purchase, or kicks for purchase with linked card, or Buy & Collect, lets you associate one or more of your credit or debit cards issued from certain card networks, stores or card issuers (each, a “Card”) with your Account using the Application, so you can be eligible to receive kicks when you use that Card at a participating merchant for certain qualifying purchases (“Card Awards”). If you choose to associate a Card with your Account, we will direct you to a secure site operated by the Card network or issuer on shopkick’s behalf where you will be required provide your Card information and agree: (i) that certain transaction information from your associated Card may be shared with shopkick as well as other Card networks , and (ii) to Card network- and/or issuer-specific terms and conditions, as applicable. We will use the information provided by a Card network or issuer solely to: (i) enable your participation in Kicks When You Buy by enabling redemption of offers from participating merchants, sharing return information with participating merchants to enable shopkick to validate offer eligibility, award kicks and provide aggregated and anonymized reporting to the applicable participating merchants, and (ii) develop, test and improve the Program. shopkick and each Card network or issuer will not be responsible for any errors or mistakes associated with that secure site and shopkick will not store your Card number. The Card network or issuer will register your Card on shopkick’s behalf and will provide a non-Card number identifier to shopkick that relates to your associated Card. Card networks and issuers’ only role in Kicks When You Buy is to provide data from your associated Card to enable your participation in Kicks When You Buy. Once you have associated a Card with Kicks When You Buy, you may remove the association at any time through the Application; however the Card Network or issuer may still continue to deliver shopkick information about your returns at participating merchants for a limited period of time after the association has been removed to use solely for the above purposes. You may only associate a Card with your Account if you are a registered user of the Application who also has a verified phone number associated with your Account. Card Awards may not be used until a certain time period (for example, for returns associated with that participating merchant) has expired. Typically this is between 30 and 45 days, but it could be longer, as indicated in the Pending Purchase section of the Application. If you make a return, the transaction is invalidated, disputed, or does not settle for any reason, then some or all pending kicks will be decremented from your Account, as determined by, and at the sole discretion of, shopkick. If you make a return for cash, store credit or credit to a different credit card, we will still need to take away some or all of your pending kicks accordingly. We, the Card networks and issuers are not in any way liable for your use of the Card at a participating merchant, any issues you might have with the participating merchant or the Card issuer, or any returns or attempted returns at the participating merchant. Unfortunately we, the Card networks and issuers cannot be liable for any errors or omissions in awarding the kicks for a number of reasons, including because we cannot control the accuracy of the information that we may receive from a participating merchant.

mCommerce

Our mCommerce capability within the Application lets you earn kicks from online purchases at participating merchant websites.  By using shopkick’s mCommerce capability, in addition to our Terms, you will be agreeing to terms and conditions of each applicable participating merchant, Card processor, Card network and/or Card issuer (collectively, “mCommerce Processors”).  If you do not agree to all of the applicable mCommerce Processor terms and conditions, then you may not use our mCommerce capability.

 

mCommerce transactions will be handled by mCommerce Processors rather than shopkick.  Under no circumstances will shopkick be responsible for mCommerce Processor errors, omissions, negligence, reckless or intentional acts, privacy or publicity rights violations, and/or security breaches, including with respect to any notification obligations related thereto.

 

You hereby agree that mCommerce transaction-related information may be shared among and between shopkick and mCommerce Processors.  However, shopkick will only use such information to award kicks, deduct kicks, validate offer eligibility, enable offer redemption, develop, test and improve the Program, and/or provide aggregated and anonymized reporting.

 

From time to time, there will be circumstances where shopkick does not receive valid, complete and/or otherwise sufficient data relating to mCommerce transactions.  Under no circumstances will shopick be liable for errors or omissions in awarding, or failure to award, mCommerce-related kicks.  Certain mCommerce transactions, or portions thereof, may not be eligible to receive kicks, including, but not limited to, clearance items, gift cards, tax, and/or shipping & handling fees.  At shopkick’s sole discretion, entire mCommerce transactions may be determined to be ineligible for kicks, or only eligible for award of partial kicks credit.

 

mCommerce awards may not be used until a certain time period (for example, for returns associated with that participating merchant) has expired. Typically this is between 30 and 45 days, but it could be longer, as indicated in the Pending Purchase section of the Application. If you make a return, the transaction is invalidated, disputed, or does not settle for any reason, then some or all pending kicks will be decremented from your Account, as determined and at the sole discretion of shopkick. If you make a return for cash, store credit or credit to a different credit card, we will still need to take away some or all of your pending kicks accordingly.

 

shopkick shall not be responsible for any online shopping transactions that you make, or attempt to make, using the mCommerce capability of our Application.  For any questions regarding, or issues with, any such transaction, please contact the participating merchant and/or your Card issuer directly.

Payment

The use of the Services and Applications is currently made available to users free of charge; however, while it is not currently intended, we reserve the right to charge a fee for using the Services at any time. If we begin charging a fee for your continued access to the Services, we will give you at least 15 days prior notice so you can opt out of the Services. If you choose to opt out of the Services, shopkick may forfeit any or all kicks, Bonuses and/or other awards in your Account after the prior notice period.

Content

Certain portions of the Program may allow you to post or upload text, graphics, images, and other content for display or publication through the Services (“Content”). By submitting Content to shopkick, you hereby grant shopkick a worldwide, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Services and shopkick’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Program (and derivative works thereof) in any media formats and through any media channels. If you publish images or other such content through the Services, they may be viewed by and shared with other users, for example, on social networks like Facebook, based on your settings.

You agree not to: (i) submit material that violates anyone else's proprietary rights, including privacy and publicity rights, or can be considered spam or junk mail; (ii) knowingly publish false or inaccurate information; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements, “pyramid schemes,” chain letters or other solicitations; or (v) impersonate another person. shopkick does not endorse any Content or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with any Content. We reserve the right to decide whether Content is appropriate and complies with the Terms, and may remove such Content and/or terminate your access for uploading material in violation of the Terms at any time without prior notice. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting publishing or otherwise making available Content or other materials that are believed to violate the Terms.

It is shopkick’s policy to terminate your access to the Services if you infringe the copyright rights of others upon receipt of proper notification to shopkick by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Services; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. You may contact our Copyright Agent at tos@shopkick.com.

Contests and Sweepstakes

From time to time shopkick may offer contests or sweepstakes that are governed by a separate set of rules (“Rules”). The Rules may include eligibility requirements, additional terms and conditions, information about how your personal information might be used, and other requirements or information. Before you decide to enter one of the contests or sweepstakes, you agree to read the applicable Rules. By participating in a contest or sweepstake, you will be subject to those Rules and you agree to comply with them.

Restrictions

The Program may be used and accessed for lawful purposes only. You agree not to, and to not encourage or conspire with anyone else to, engage in any conduct that is inconsistent with the purposes, intent and spirit of the Program, or otherwise “game the system”. You also agree to abide by all applicable local, state, national and foreign laws and regulations in connection with your use of the Services. In addition, you agree not to do any of the following:

·       use the Services to collect or store personal data about other users without their express permission;

·       upload, post, email or otherwise transmit any viruses or other computer code that may interrupt, destroy, limit the functionality of the Services, or interfere with the access of any user to the Services;

·       circumvent, disable or otherwise interfere with security related features of the Services or features that prevent or restrict use or copying of any Content;

·       use any meta tags or other hidden text or metadata utilizing a shopkick name, trademark, URL or product name;

·       use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages contained in the Services;

·       attempt to or actually access the Services by any means other than through the Application or other shopkick-provided platforms;

·       attempt to probe, scan or test the vulnerability of any shopkick system or network or breach or impair or circumvent any security or authentication measures protecting the Services or the Application;

·       attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to discover or determine the source code of any Application used to provide the Services;

·       use the Services or Application in any way that competes with shopkick; or attempt to or acquire kicks, bonuses, other awards or any other type of awards other than in a manner consistent with the intended use of the Services;

·       post any product review on a digital distribution platform for mobile devices (for example, iTunes Store, Android Market, BlackBerry App World), which includes a referral or promo code for collecting or receiving awards through the Services;

·       inaccurately represent the value of a referral or promo code award to any individual; or encourage or instruct any other individual to do any of the foregoing.

shopkick expressly reserves the right to retroactively reverse any rewards or benefits granted to you for any such prohibited conduct, or based on any material violation of the Terms; you agree to provide your full cooperation and prompt repayment under such circumstances. shopkick shall determine, in its sole discretion, whether you have engaged in prohibited conduct; shopkick’s determination shall be final and unreviewable, and you waive any and all rights you may have to challenge that decision.

Termination; Cancellation

You may terminate your Account at any time and for any reason by deleting your account via the Application or by sending shopkick notice as described above. Upon any termination by you, your Account may no longer be accessible. Any termination request will be handled within 30 days of receipt of such a request by shopkick. Any suspension, termination or cancellation will not affect your obligations to shopkick under the Terms (including but not limited to ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.

We may immediately terminate or suspend your access to the Services and remove any material (including any Content provided by you) from the Services or our servers, in the event that you breach the Terms, at our sole discretion and without prior notice to you. We also reserve the right to terminate the Services or your access at any time and for any reason, including but not limited to the need to conduct maintenance or if we discontinue any portion of the Services. Upon termination, all licenses and other rights granted to you under the Terms will immediately cease. We will not be liable to you or any other person for termination of the Services or termination of your use of the Services. Upon any termination or suspension, any information (including Content) that you have submitted to the Services may no longer be accessed by you. Furthermore, we will have no obligation to maintain any information stored in our database related to your Account or to forward any information to you or any other person.

Ownership

The Services and Application are protected by copyright, trademark, and other laws of the United States and foreign countries. shopkick and its licensors exclusively own all right, title and interest in and to the Services and Application, including all associated intellectual property rights. You may not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Application. You may not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services, except as expressly permitted in the Terms. Any feedback, comments and suggestions that you may provide for improvements to the Services or Applications (“Feedback”) will be the sole and exclusive property of shopkick and you hereby irrevocably assign to shopkick all of your right, title, and interest in and to all Feedback.

Third Party Services, Websites or Resources

The Services may contain content or services provided by third parties and/or links to third party services, websites or resources. We are not responsible or liable for the availability, accuracy, functionality, adherence to third party policies or shopkick policies, or legality of, and we do not endorse, such websites, services or resources or the content, products, or services on or available from such websites or resources. You are solely responsible for and assume all risk arising from your use of any such websites, services or resources.

Disclaimers

Your use of the Program is at your sole discretion and risk. We will not be responsible for any harm to your computer or mobile device, loss of data, personal injury, property damage, or other harm that results from your use of the Services and/or Application. We do not make any warranties: (i) regarding the security, accuracy, reliability, timeliness and performance of the Services; or (ii) that the Services and/or Applications will be error-free or that any errors will be corrected. shopkick will not be liable, and you are solely responsible, for any access or usage charges charged by your wireless carrier related to any device that you use to access or use the Application or Services.

We are not responsible for (i) incorrect or inaccurate transcription of information, (ii) problems related to any of the equipment or software associated with the Services or Application or used by you, (iii) human error outside our reasonable control, (iv) any interruption, deletion, omission, degradation, defect, or line failure of any telephone network or electronic transmission, or (v) problems relating to inability to access an Application or the Services.

We disclaim all liability for any technical failures or errors of, on, or connected to the Services and/or Application, including but not limited to Push Messages sent erroneously due to technical failures or errors. We will use reasonable efforts to correct any such failures swiftly upon discovering them or being informed about them. If you think that you have received Push Messages in error or experienced other technical failures, please contact us immediately.

The Services and Application, and all materials, information, products and services included therein, are provided on an “AS IS” and “AS AVAILABLE” basis without warranties of any kind. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICES AND APPLICATIONS, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING OR COURSE OF PERFORMANCE. No advice or information, whether oral or written, obtained by you from shopkick, will create any warranty not expressly stated in this Agreement.

Indemnity

You agree to defend, indemnify, and hold shopkick, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, arising out of or in any way connected with (i) your access to or use of the Application or Services; (ii) your violation of the Terms; or (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right.

Limitation of Liability

IN NO EVENT WILL SHOPKICK, ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES AND/OR APPLICATION, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SHOPKICK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SHOPKICK’S CUMULATIVE LIABILITY TO YOU, FOR ALL CLAIMS REGARDLESS OF TYPE, EXCEED TWENTY DOLLARS ($20).

In addition, from time to time, various entities may sponsor reward points, offers and other rewards as part of a Service (“Sponsors”). YOU HEREBY WAIVE AND DISCLAIM ANY AND ALL LIABILITY CLAIMS AGAINST SPONSORS RELATING IN ANY WAY TO YOUR USE OF THE SERVICES OR ANY SUCH REWARDS. You agree that Sponsors are third party beneficiaries of the Terms, and may enforce the Terms directly.

Exclusions

Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.

General

The Terms shall be governed by California law, without respect to its conflict of laws principles. Any dispute arising from or relating to this Agreement will be finally settled by arbitration in San Mateo County, California, in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect. The prevailing party in any arbitration or other proceeding arising under the Terms will be entitled to receive reimbursement of its reasonable expenses and attorneys’ fees. Judgment may be entered in any court having jurisdiction. Notwithstanding the foregoing, we have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator.

The Terms are the entire agreement between you and shopkick concerning the Program, and supersede all prior or contemporaneous communications between you and shopkick with respect to the Program. If any provision of the Terms is deemed invalid by a court of competent jurisdiction, the remaining provisions will remain in full force and effect. No waiver of any term of the Terms shall be deemed a further or continuing waiver of such term or any other term, and shopkick's failure to assert any right or provision under the Terms shall not constitute a waiver of such right or provision.

We reserve the right, in our sole discretion, to modify, discontinue or terminate any or all of the Program at any time, or modify the Terms without notice; updates will be posted at http://www.shopkick.com/terms-of-service.html and/orhttp://www.shopkick.com/privacy-policy.html. All modified terms and conditions will be immediately effective as of the date the modified Terns are posted on the shopkick website and will apply to all Accounts and Members enrolled in the Program. If any modified terms and conditions are not acceptable to you, your sole remedy is to cease using the Services, and if applicable, terminate or cancel your Account. By continuing to access or use the Application and/or the Services after we have posted the new terms and conditions on the site, you agree to be bound by such changes. Members will be notified by email or in the Application or through other available means if the Program is suspended or cancelled. Notice of cancellation will also appear on the shopkick website.

If you have any questions about the Terms, please contact us at tos@shopkick.com.

We hope you will enjoy shopkick’s Program.

Last updated as of: October 7, 2013