TERMS OF SERVICE
Please read these terms of service (“Terms and Conditions” or “Agreement”) carefully. This Agreement affects your rights. Ebates Performance Marketing, Inc. dba Rakuten Rewards (“Company” or “we”) makes available this website (the “Company Property”) for your use under these Terms and Conditions.
This Agreement constitutes a legally binding agreement between each individual who uses this Company Property (“You” or “User”) and Company. IF YOU USE THE COMPANY PROPERTY, YOU AGREE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY All OF ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DISCONTINUE YOUR USE OF THE COMPANY PROPERTY IMMEDIATELY. YOU AGREE TO THE MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISIONS, DESCRIBED FULLY IN SECTION 4 below, TO RESOLVE ANY DISPUTES WITH the Company, Except for those Matters that may be taken to small-claims court.
1. CHANGES TO THE TERMS AND CONDITIONS
1.1 Company may at its discretion modify, update, add to, discontinue, remove or otherwise change these Terms and Conditions at any time. Each such modification will take immediate effect upon notification to you. Company may provide you with notices, including those regarding changes to these Terms and Conditions, by email, regular mail, text message, in-app messaging, or other reasonable means now known or hereinafter developed.
1.2 Your continued use of the Company Property following any such notifications constitutes your acceptance of such modifications and your agreement to be bound by these Terms and Conditions. If you do not agree to any modification of these Terms and Conditions, your sole remedy is to discontinue your use of the Company Property. The most current version of these Terms and Conditions will be available on the Company Property and supersedes previous versions.
3. INFORMAL DISPUTE RESOLUTION
We would like an opportunity to address your concerns without a formal legal case. Before filing a claim against Company, You agree to try to resolve the dispute informally by submitting your request through our Member Services page. Please be sure to select “Rakuten Feedback” under Topics in your request. We will try to resolve the dispute informally by contacting you in writing via email. If a dispute is not resolved within 30 days of submission through this form, you or Company may bring a formal proceeding.
4. DISPUTE RESOLUTION BY BINDING ARBITRATION; CLASS ACTION WAIVER
4.1 You and Company agree to arbitrate any and all disputes, claims, or controversies arising out of, in connection with, or relating to this Agreement, Company’s business, the Company Property, and our relationship with you, including any claims that may arise after the termination of this Agreement. This agreement to arbitrate includes any claims against Company’s employees, agents or any subsidiaries of Company. Arbitration is a method of claim resolution that is less formal than a traditional court proceeding in state or federal court. It uses a neutral arbitrator instead of a judge or jury and the arbitrator’s decision is subject to limited review by courts.
4.2 All disputes concerning the arbitrability of a claim (including disputes about the scope, interpretation, breach, applicability, enforceability, revocability or validity of this Agreement) shall be decided by the arbitrator. The arbitrator shall also decide whether any claim is subject to arbitration. You further agree that the U.S. Federal Arbitration Act and federal arbitration law shall govern the interpretation and enforcement of this agreement to arbitrate.
4.3 CLASS ACTION WAIVER: YOU AND COMPANY ALSO AGREE THAT EACH IS GIVING UP THE RIGHT TO A JURY TRIAL AND THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT OR REPRESENTATIVE PROCEEDING, CONSOLIDATED ACTION, OR PRIVATE ATTORNEY GENERAL ACTION. This means that neither you nor Company can seek to assert class or representative claims against each other either in court or in arbitration and no relief can be awarded on a class or representative basis. The arbitrator also may not consolidate or join another person’s claim with your claim or issue an order that would achieve the same result. You and the Company further agree that if the provisions of this paragraph, known as the “Class Action Waiver,” are found to be unenforceable, it cannot be severed from this arbitration agreement and the entire provision compelling arbitration shall be null and void.
4.4 To the extent possible under your local law, the arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules or pursuant to JAMS' Streamlined Arbitration Rules and Procedures (“Rules”). The Rules are available online at www.jamsadr.com. The arbitrator is bound by the terms of this Agreement. If your claim in arbitration is for less than $10,000, Company will reimburse you for filing and arbitrator fees at the conclusion of the proceeding unless your claim is found to be frivolous by the arbitrator. The exclusive venue for any dispute or issue arising out of this Agreement shall be held in San Francisco County, California.
4.5 Notwithstanding any provision in this Agreement to the contrary, you agree that if we make any future, material change to this arbitration provision, you may reject any change by sending us written notice within thirty (30) calendar days of the change to Ebates Performance Marketing, Inc. DBA Rakuten Rewards, 800 Concar Drive, Suite 175, San Mateo, CA 94402, Attn: Legal. Your decision to reject changes in a new arbitration provision, however, does not affect any prior arbitration provisions to which you have already agreed, which would still remain in effect.
4.6 This arbitration provision is optional. You may decline or opt out of this agreement to arbitrate by sending written and signed notice to Ebates Performance Marketing, Inc. dba Rakuten Rewards, 800 Concar Drive, Suite 175, San Mateo, CA 94402, Attn: Legal within thirty (30) calendar days of the date you first used the Company Property.
4.7 Judgment upon the arbitration award 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.
5.1 Subject to this Agreement, we hereby grant you a non-exclusive, non-transferable license (without the right to sublicense) to access and use the Company Property. You agree that you obtain no rights other than the rights and licenses expressly granted in this Agreement. Company reserves the right to change, upgrade or discontinue the Company Property and/or any feature of the Company Property, at any time, with or without notice. All rights not expressly granted under this Agreement are reserved by Company or its licensors.
You agree that you will not, and will not permit others to: (i) damage, interfere with or unreasonably overload the Company Property; (ii) introduce into the Company Property any code intended to disrupt its operation; (iii) alter or delete any information, data, text, links, images, software, chat, communications and other content available through the Company Property (collectively, “Content”); (iv) access the Company Property by expert system, electronic agent, “bot” or other automated means; (v) use scripts or disguised redirects to derive financial benefit from Company; (vi) modify, reverse engineer, reverse assemble, decompile, copy or otherwise derive the source code of the Company Property for any reason; (vii) rent, sell or sublicense the Company Property; (viii) provide any unauthorized third party with access to the Company Property; (ix) access or attempt to access confidential Content through the Company Property; (x) interfere with the operation of the Company Property, including, but not limited to, distribution of unsolicited advertising or mail messages and propagation of computer worms and viruses; (xi) post any material in any form whatsoever on the Company Property that is defamatory, obscene or otherwise unlawful or violates any third party’s right of privacy or publicity; (xii) infringe any third party’s patent, copyright, service mark, trademark or other intellectual property right of any kind or misappropriate the trade secrets of any third party in connection with your use of the Company Property; (xiii) engage in any activity that does not comply with applicable law and regulations or otherwise engage in any illegal, manipulative or misleading activity through the use of the Company Property; (xiv) use the manual or automated software, devices or other processes to "scrape," "crawl," "spider" or index any page of Content from the Company Property.
All right, title and interest in the Company Property and the Content belong to Company or its licensors. Additionally, Company shall maintain all right, title and interest in the “Rakuten” mark, the “Ebates” mark, the Rakuten logo, the Ebates logo and any other marks, service marks, trademarks or logos of Company and its affiliates (“Company Marks”). The Company Marks may not be used in connection with any product or service that is not Company’s or in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Company. You shall not by any means bid on any keywords with any search engine containing “Rakuten,” “Ebates” or anything substantially similar to “Rakuten,” “Ebates,” “Buy.com” or any other Company Mark including, without limitation, Rakuten.com, Rakuten.ca, Ebates.com, Buy.com, BFAds.net or Ebates.ca. You shall not mention or use Company in any ad text, extensions or banner ads without the express written consent of Company. All other trademarks not owned by Company that are used in the Programs are the property of their respective owners, who may or may not be affiliated with, connected to or sponsored by Company.
You agree to indemnify Company its affiliates, as well as their respective officers, directors, employees, successors, agents and affiliates, for any and all claims, damages, losses and causes of action (including attorneys’ fees and court costs) arising out of or relating to your breach of this Agreement or for any materials in any form whatsoever that are provided by you. You agree to cooperate as fully as reasonably required in our defense and/or settlement of any claim. We reserve the right, in our reasonable discretion, to assume exclusive control over the defense and settlement of any matter subject to indemnification by you.
9. WARRANTY DISCLAIMER
THE CONTENT AND THE COMPANY PROPERTY ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE MAKE NO WARRANTY AS TO THE QUALITY, ACCURACY, CURRENTNESS, COMPLETENESS, RELIABILITY OR VALIDITY OF THE CONTENT OR THE COMPANY PROPERTY, INCLUDING, WITHOUT LIMITATION, OPINION, STATEMENT, RECOMMENDATIONS, REVIEWS OR OTHER INFORMATION DISPLAYED, UPLOADED OR DISTRIBUTED IN CONNECTION WITH ANY THE COMPANY PROPERTY. COMPANY DOES NOT WARRANT THAT THE FUNCTIONALITY OF THE COMPANY PROPERTY WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THEY WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
10. LIMITATION OF LIABILLITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, STATUTORY, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES OR FOR ANY LOSS PROFITS, LOSS DATA OR LOSS OF USE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT THE COMPANY’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED FIFTY U.S. DOLLARS ($50). THIS LIMITATION SHALL APPLY TO ANY AND ALL LIABILITIES OR CAUSES OF ACTION HOWEVER ALLEGED OR ARISING, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, BREACH OF CONTRACT, OR ANY OTHER CLAIM WHETHER IN TORT, CONTRACT, OR EQUITY.
11. TERMINATION OR SUSPENSION
This Agreement is effective when accepted by you and will remain in effect until you discontinue use of the Company Property. We may terminate this Agreement and your use of the Company Property at any time, for any reason or no reason. We may, in our sole discretion, at any time and without prior notice, discontinue, cancel, suspend, change or limit access to all or any part, functionality, feature or other component of the Company Property. You agree that Company will not be liable to you or to any third party for any modification, suspension, or termination of your access to any of the Company Property. If you are dissatisfied with any aspect of the Company Property at any time, your sole and exclusive remedy is to cease your use of the Company Property. Termination will not prejudice either you or our remedies at law or in equity.
12. GENERAL PROVISIONS
12.1 Entire Agreement. These Terms and Conditions constitute the entire agreement between you and Company and govern your use of the Company Property superseding any prior agreements between you and Company with respect to the Company Property (including, without limitation, earlier versions of this Agreement that may have been accepted by you). Any representations, statements or agreements made or entered into elsewhere, whether directly or indirectly, written or oral or in advertising are not binding toward Company unless expressly confirmed in writing by Company to you. You may also be subject to additional terms and conditions that may apply when you use certain features of the Company Property.
12.2 Choice of Law. The validity, construction and interpretation of this Agreement and the relationship between You and Company, including the rights and duties of the parties, will be governed by the laws of the State of California in the United States without regard to its conflict of law provisions. This shall not limit the protection afforded to you by provisions that cannot be derogated from by agreement by virtue of applicable law.
12.3 Interpretation. Headings under this Agreement are intended only for convenience and shall not affect the interpretation of this Agreement.
12.4 Waiver and Severability of Terms. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be invalid, such invalidity shall not affect the remaining provisions, except as otherwise stated.
12.5 Assignment. You may not assign, transfer, or otherwise dispose of your rights and obligations under this Agreement, in whole or in part, without our prior written consent, and any such assignment without such consent will be null and void. Company has the right to transfer, assign or otherwise dispose of these Terms and Conditions without Your consent.