END-USER LICENSE AGREEMENT
Updated: September 1, 2016
This End-User License Agreement (“EULA”) governs your use of the Service and will be effective the day that you accept it (the “Effective Date”). This EULA, the applicable Order Form, and YouEarnedIt Terms and Conditions are referred to as the “Agreement.” Any capitalized terms that are not defined in this EULA shall have the definition provided in the YouEarnedIt Terms and Conditions or the applicable Order Form.
The words “we”, “us,” and “YEI” refer to YouEarnedIt, Inc. The words “User”, “Basic User”, “you”, “your”, and “yours” mean you, the individual(s) or entity identified on the account, those who request and use the account(s) accessed under the Agreement or any person authorized by the Customer identified in the applicable Order Form to use the Service.
By using the Service, you acknowledge and agree that:
This EULA commences on the Effective Date and continues for the time specified on an Order Form.
2. Customer Administrators.
Customer and its Administrators will manage and administer Customer’s internal rules with respect to earning and distributing Points, a Basic User’s eligibility to participate in the Service, and the redemption of Points. You will be responsible for paying any taxes on Rewards to the extent they are taxable income under applicable tax law. You should make any requests to the Customer Administrators and not directly to YEI regarding the Service.
Subject to the terms and conditions of the Agreement (including payment of all amounts due) YEI grants you a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license to access and use the Service for its intended purpose during the term of the applicable Order Form.
4. Acceptable Use.
While using the Service you will comply with the following:
a. you will follow the applicable laws regarding the transmission of data;
b. you will not use the Service to engage in, foster or promote SPAM, illegal, abusive or irresponsible behavior;
c. you will not interfere or attempt to interfere in any manner with the functionality or proper working of the Service;
d. you will not transmit or store via the Service any offensive Content; and
e. you are responsible for any violations of this EULA by anyone using the Service with your permission.
5. Restrictions on Use.
You may only use the Service as a part of Customer’s own internal reward and incentive program and may not:
a. use the Service to process or permit the software to process data for any third party;
b. use the Service in operation of a service bureau;
c. permit any third parties to use the Service;
d. remove, obscure, or alter any notice of any mark, or other intellectual property or proprietary right designation appearing on or contained within the Service; or
e. reproduce, modify, translate, decompile, disassemble, adapt, reverse engineer, distribute, display, publish or transfer any part of the Service in any form or by any means, without YEI’s prior written permission.
6. Unauthorized Use.
It is your responsibility to keep your username and password from the knowledge of others. If you suspect any authorized access to any Customer account, you will immediately notify the Customer Admin who will then notify YEI.
7. Intellectual Property.
Title and ownership of the Service remains with YEI and/or its licensors. All rights except those expressly granted to Customer and its Users shall be reserved to YEI and/or its licensors. Any content contributed by a Basic User (e.g. recognition) will be deemed to be “Content” within the scope of the Agreement. You agree that:
a. you are the owner/authorized licensor with necessary licenses, rights, consents, and permissions to publish Content; and
b. YEI’s use of the Content as described in the Agreement does not violate the rights (including without limitation the intellectual property rights) of any third party.
8. Service Suspension.
YEI may suspend your access to the Service at any time without liability to YEI. If you breach the EULA, we may suspend or terminate your access to the Service. If YEI determines in its sole reasonable discretion that you abused the Service, and/or committed or attempted to commit fraud or misrepresentation in connection with the Service, then in addition to any other remedies available to YEI, you agree that you will forfeit any Points accumulated and will not be eligible to earn any additional Points or otherwise use the Service.
9. WARRANTY DISCLAIMER; LIMIT OF LIABILITY.
YEI AND ITS LICENSORS DISCLAIM ALL IMPLIED AND EXPRESS WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, AND NON-INFRINGEMENT. YEI IS NOT RESPONSIBLE FOR AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY FULFILLMENT VENDOR.
IN NO EVENT SHALL YEI BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS, OR LOST SAVINGS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE. IN NO EVENT SHALL YEI’S LIABILITY HEREUNDER (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) IN THE AGGREGATE EXCEED $100.00 AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
YOU HEREBY REMISE, RELEASE, ACQUIT AND FOREVER DISCHARGE YEI, ANY EMPLOYEES OR OFFICERS OF YEI, AND ANY INDIVIDUALS ASSOCIATED WITH YEI OR YEI SERVICES (“RELEASED PARTIES”) OF AND FROM ANY AND ALL LIABILITIES, CLAIMS, REMEDIES, DEMANDS, SUITS OR CAUSES OF ACTION OF WHATSOEVER KIND OR CHARACTER, IN WHOLE OR IN PART, WHETHER CHOATE OR INCHOATE, WHICH YOU MAY EVER HAVE AGAINST THE RELEASED PARTIES THAT IN ANY WAY DIRECTLY OR INDIRECTLY RELATE TO, RESULT FROM, ARE BASED UPON, OR ARISE OUT OF THE YEI SERVICES OR ANY REWARDS OBTAINED BY YOU.
YOU FURTHER AGREE TO DEFEND, INDEMNIFY, SAVE, AND HOLD THE RELEASED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, DAMAGES, LIABILITIES, LAWSUITS, LITIGATION, ATTORNEYS FEES, EXPENSES, OR ARBITRATIONS ARISING OUT OF ANY YOUR ACTIONS, EITHER INTENTIONALLY OR NEGLIGENTLY, DURING YOUR USE OF THE YEI SERVICES.
YOU FURTHER ACKNOWLEDGE AND AGREE THAT ANY OF YOUR ACTIVITIES RELATING TO THE YEI SERVICES AND ANY REWARDS SHALL BE PURELY VOLUNTARY AND CONDUCTED AT YOUR OWN CHOICE. YOU HEREBY ASSUME ALL RISKS ASSOCIATED WITH THE USE OF THE YEI SERVICES AND REWARDS, INCLUDING ALL RISKS OF PERSONAL INJURY OR PROPERTY DAMAGE.
You have read and agree to the terms of YEI’s Privacy Statement, available here.
11. U.S. Government End-Users.
If the User is a branch or agency of the United States Government or a contractor thereto, the following provision applies. The software and documentation are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policies set forth in 48 C.F.R. 12.212; or (b) for acquisition on behalf of the department of defense consistent with the policies set for the in 48 C.F.R. 227.7202-1 (Aug. 1995) and 227.7202-3 (Aug. 1995).
12. Modifications to this EULA.
YEI may modify or update this EULA from time to time by (a) posting a revised EULA on the Website and (b) providing notice to you that this EULA has changed via e-mail. You are responsible for reviewing and becoming familiar with any modifications to this EULA. The modified version of this EULA will become effective thirty (30) days after we have posted the modified EULA and provided you notification of the modifications. Your use of the Service following that period constitutes your acceptance of the terms and conditions of this EULA, as modified. If you do not agree with the modifications, you are not authorized to use our Service.
13. Electronic Signature.
You agree and consent to the use of a key pad, mouse, or other device to select an item, button, icon or similar act/action while using the Service constitutes your signature, acceptance, and agreement to the terms of this EULA as if actually signed by you in writing.
Any dispute, controversy or claim arising under, out of or relating to this EULA and any subsequent amendments of this EULA, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to arbitration before the American Arbitration Association (“AAA”) in accordance with the AAA Commercial Arbitration Rules. The place of arbitration shall be Austin, Texas. The language to be used in the arbitral proceedings shall be English. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary, without breach of this Section and without abridgment of the powers of the arbitrator. The arbitrator may award any form of individual or equitable relief, including injunctive relief. Any award will be final and conclusive to the parties and may be entered in any court of competent jurisdiction. You agree to the entry of injunctive relief to stop any lawsuit or to remove you as a participant in such a suit. This EULA does not constitute a waiver of any of your rights and remedies to pursue a claim individually in binding arbitration, but not as a class action. This provision preventing you from bringing, joining or participating in class action lawsuits is an independent covenant. You may opt-out of this Section by providing written notice of your decision within thirty (30) days of the Effective Date.