Terms of Service
Effective December 15, 2017
- A. About Us:
BY ACCESSING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE PROVISIONS, CONDITIONS AND NOTICES CONTAINED IN THESE TERMS JUST AS IF YOU SIGNED THESE TERMS.
THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH US.
- B. Our Terms of Service:
- 1. Service Conditions. You cannot use the Services unless: (a) you are at least 18 years of age (or such other age of legal majority applicable in your jurisdiction), or (b) you are at least 13 years of age, have obtained the consent of your parent or legal guardian to use the Services, and your parent or legal guardian agrees to be bound by these Terms and agrees to be responsible for your use of the Services on your behalf. By accessing the Services, you represent and warrant to us that you have the right, authority and capacity to agree to, and abide by these Terms.
- 2. Grant of License. These Terms provide you with a personal, revocable, non-exclusive, non-assignable, non-transferable, limited and temporary license to access and use portions of the Services determined by us, subject to these Terms and our Policies.
- 3. Mobile Devices. If you are accessing the Services via a mobile device or tablet which is owned or controlled by you (a “Device”) then, subject to your compliance with these Terms and our Policies, the license granted hereunder allows you to access the Services using your Device. You understand and agree that use of the Services via your Device may result in data or other charges from your mobile communication service provider and you expressly release, indemnify, hold harmless, and defend us from any and all liability relating to any such charges and/or your Device.
- 4. Account.
(a) To use certain aspects of the Services, you must register for an Account. In connection with the Services, you agree to provide true, accurate, current and complete information as prompted by our registration forms, and to maintain and promptly update the information you provide to us in order to keep your information true, accurate, current and complete. It is your obligation to maintain and control passwords to your Account. YOU AGREE THAT YOU ARE SOLELY AND FULLY RESPONSIBLE FOR ANY ACTIVITIES AND/OR ACTIONS TAKEN UNDER YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH ACTIVITIES OR ACTIONS. You agree to immediately notify us of any unauthorized uses of your username and password and/or any other breaches of security. There is no assumption by us of your responsibility to notify your local law enforcement agency of any identity theft. You agree we will not be liable for any loss or damages caused by your failure to comply with your security obligations.
- 5. Users and Deals.
(a) Generally. Deals are made available to Users via the Services as further set forth in Section 6 below. Users may purchase a Deal using the Services, which provides that User the ability to redeem that Deal at the Location’s physical office location.
(b) Deal Specifics. The terms of the Deals are determined by the relevant Location providing such Deal (not us). All Deals made available in connection with the Services are promotional only and are redeemable solely for the applicable goods or services of the relevant Location. The Location, not Floatation Locations, is the provider of the Deals and the Location is solely responsible for redeeming any Deals you obtain. Each Location may refuse to honor any Deal, as determined solely by the Location, subject to these Terms, and you agree Floatation Locations will have no liability if a Location refuses or fails to honor any Deal. In addition, each purchaser of a Deal agrees: (i) redemption frequency is determined by the Location; (ii) use of Deals relating to age restricted items (e.g. alcohol) is at the sole discretion of the Location and is subject to compliance with applicable law; (iii) Deals cannot be combined with any other rewards, offers, vouchers, third party Deals, coupons, or promotions, unless otherwise specified by the Location; (iv) Deals cannot be used for taxes, tips or prior balances, unless permitted by the Location; (v) neither Floatation Locations nor the Location is responsible for malfunctioning Deal barcodes or other activation interfaces; (vi) reproduction or sale of any Deal is prohibited; (vii) any attempted redemption not consistent with these Terms or any other restrictions imposed by the Location or Floatation Locations will render the Deal void; (viii) Deals are void to the extent prohibited by law; (ix) Deals may be applied only to the applicable products or services sold by the Location that are the subject of such Deals; (x) limit one (1) Deal per redemption unless otherwise specified by the Location; (xi) Deals may be transferred once issued, subject to these Terms and any Deal terms specified by the Location; (xii) Deals have no cash value and cannot be redeemed or exchanged for cash; (xiii) Deals are non-refundable; (xiv) you may be required to pay sales tax at the time you redeem the Deal; and (xv) you agree to abide by and comply with the terms of the Deal and these Terms.
(c) Venue Only. Our Services create a venue only. WITH THAT IN MIND, YOU UNDERSTAND AND AGREE THAT: (i) we do not employ any Locations and have no control over the acts or omissions of any Locations in any way using or having used the Services, on or off our Website; (ii) we are not responsible for any Location’s compliance or non-compliance with applicable laws in connection with any Deals or any transaction involving a Location; (iii) we make no representations or warranties about the quality or legality of the services offered by a Location in connection with a Deal or about interactions or dealings with others; (iv) we are not responsible for the performance or conduct of any Locations, any other User, or other third parties in any way, on or off the Website; and (v) we are under no obligation to become involved in disputes between any Users (whether or not such Users are Locations). We have no control over the terms of the Deal, and we make no representations or warranties with respect to the accuracy, legality, or enforceability of such Deal terms. We are acting as an independent contractor that facilitates the Services (e.g. distribution of the Deals) and no employment, joint venture or other agency relationship exists between us and a Location in connection with your use of the Services.
- 6. Locations and Deals and Other Location Terms.
(a) Deals Generally. Locations shall create a specified number of Deals with a specific start and expiration date using the Services (“Open Period”) in exchange for a fee communicated to the Location at the time the Deals are created via the Services or otherwise.
(b) Display. Deals shall be displayed on the Services in a manner and method determined by us. The Deal shall be redeemable by a User with the Location in accordance with the terms of the Deal immediately upon being displayed on the Services, which will be on or about the commencement of the Open Period, as determined by us in our sole and exclusive discretion. Once a Deal is active and displayed on the Services, Locations shall be solely responsible for all User interaction in connection with the Deal and for supplying all goods and services specified in the Deal. We reserve the right, but are not be obligated, to reject or discontinue displaying any Deal on the Services any reason, including, but not limited to, to conform the Deal to Floatation Locations specifications or applicable law.
(c) Redemption. Locations shall: (i) honor the Deals during the time period specified on the Deal as well as the Open Period, pursuant to the terms of the Deal, and as required by applicable law; (ii) address all User inquiries and disputes in connection with the redemption and use of the Deals; (iii) honor any Deal presented by an individual unless you reasonably believe that individual obtained the Deal in an unauthorized manner, in which case you shall contact Floatation Locations; and (iv) comply with the terms of the Deal without adding any additional restrictions, conditions, terms, or charges, that are not expressly stated on the Deal.
(d) Compliance With Certain Laws. Each Location agrees to ensure that the Deals comply with any and all laws that govern the Deals, including but not limited to laws relating to expiration dates, charges, non-use fees or other terms of the Deal. Locations shall be solely responsible for and agrees to report and pay over to the applicable governmental agency any unredeemed cash value of any Deal issued using the Services.
(e) Marketing. Each Location grants to Floatation Locations a non-exclusive, perpetual, irrevocable, worldwide license and right to reproduce, display, distribute, transmit, and otherwise use the Location’s name, logo and any trademarks and any images, artwork, text and other Content provided by Location (collectively, “Location IP”) in connection with the marketing, promotion, sale or distribution of Deals, in any and all media or formats created now or hereafter existing.
(f) Additional Location Representations. Each Location represents and warrants that: (i) the terms and conditions of the Deal complies with and will not violate any local, state or federal law, statute, rule, regulation, or order; (ii) Location owns all right, title and interest in the Location IP and has the right to grant the licenses in the Location IP as set forth in these Terms; and (iii) the Deals and any advertising of the products and services offered in the Deal will not constitute unfair, deceptive, or abusive trade practices or fraud or disparagement under applicable law.
- 7. Content.
(a) By Us. CONTENT ON THE SERVICES, OR OBTAINED FROM A LINKED SITE ARE PROVIDED TO YOU ‘AS IS’, ‘AS AVAILABLE’ AND ‘WITH ALL FAULTS’. WE PROVIDE THE SERVICES FOR INFORMATIONAL PURPOSES ONLY AND ANY STATEMENTS ON THE WEBSITE ARE OPINIONS OF THE AUTHOR, CONTRIBUTORS, AND USERS. OUR SERVICES ARE NOT TO BE CONSTRUED AS INVESTMENT, LEGAL, EMPLOYMENT, ACCOUNTING, TAX, OR OTHER PROFESSIONAL ADVICE. OUR SERVICES ARE A RESOURCE ONLY. As such, we expressly disclaim all liability related to the accuracy or reliability of any opinion, guidance, or Content Transmitted by us or available through our Services or reliance on any of the aforementioned. We will do our best to provide top-quality Services to you. However, the Content published through the Services may also include inaccuracies or typographical errors. We do not warrant or represent that the Content available through our Services is complete or up-to-date.
(b) Linked Sites.
(ii) Third Party Products and Services. When you use the Services to purchase products or services from a Linked Site, you are purchasing that product or service directly from the third party Linked Site. Your order is placed with, filled by, and shipped by that third party Linked Site. We have no involvement in any shipment, fulfillment, returns, or refunds associated with any products or services that you purchase from a Linked Site or third party. You understand that you must contact the third party Linked Site directly for inquiries related to your purchase, including but not limited to: returns, shipping, customer service, refunds, or general information. By using the Services, you expressly represent and warrant that you will abide by and will not violate any policies, rules, terms, or conditions of that third party Linked Site.
(c) Transmitted by You.
(i) You are solely responsible for the Content that you Transmit by way of the Services and/or Transmit to us by way of the Services or otherwise (collectively, “User Content”). You represent and warrant to us that you shall not Transmit User Content that: (A) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, or physical or mental illness to you, to any other person, (B) may cause loss or damage to any person or property; (C) involves or contributes to a violation of criminal or civil law; (D) contains 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, sexually explicit, or otherwise objectionable; (E) contains Content that you do not have a right to disclose under any law or under contractual or fiduciary relationships; (F) infringes on the intellectual property rights of others; or (G) violates any provision of the use restrictions in Section 12. WE ARE NOT RESPONSIBLE FOR ANOTHER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU TRANSMIT USING THE SERVICES.
(ii) You will retain ownership of any copyrights relating to your User Content. However, you also agree that by Transmitting User Content to us and/or Transmitting User Content anywhere within, on, or using the Services, you hereby grant to us and represent and warrant to us that you have all rights necessary to grant to us a worldwide, irrevocable, perpetual, non-exclusive, cost-free, royalty-free license to use, copy, sell, rent, license, sublicense, display, publically perform, create derivative works of, distribute, store, archive, transform, edit, alter, distort, modify, add to, subtract from, enhance, broadcast, telecast, duplicate, distribute, and/or otherwise exploit your User Content, each as determined exclusively by us, in all forms of media and forms of exploitation, now known or hereafter created including but not limited to, Social Media Profiles, websites, film, television, radio, and/or print, each as determined exclusively by us. In order to further effect the rights and license that you grant to us regarding your User Content, you also hereby grant to us the unconditional, perpetual, irrevocable right to use and exploit your name, persona, image, photograph, and likeness that you provide in connection with any User Content, without any obligation or compensation to you. To the extent any ‘moral rights’, ‘ancillary rights’, or similar rights in or to the User Content exists and are not licensed to us hereby, you agree not to enforce any such rights and you shall procure the same agreement not to enforce from any others who may possess such rights. Without limiting the scope of the license granted to us by you hereunder or any future grant of rights, consents, agreements, assignments, and waivers you may make with respect to User Content, and to the extent allowed by applicable law, you hereby ratify any prior grant of rights, consents, agreements, assignments and waivers made by you with respect to your User Content. You further acknowledge and agree that no compensation will be paid with respect to the use of your User Content or any of the rights granted to us in these Terms. You agree that the license granted by you in this Section 7(c)(ii) shall be binding upon you, your heirs, legal representatives, assigns, transferees and successors in interest and shall survive any termination of these Terms, of your Account, and/or your license to use and access the Services. You agree that any User Content you Transmit is not being disclosed in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way. For clarity, and without altering the forgoing, generally, while you retain the copyrights in your User Content, we can do anything we desire with your User Content just as if we owned the User Content and any copyrights therein. You represent and warrant that you own or otherwise possess all necessary rights with respect to your User Content, and that your User Content does not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate rights of any third party, including but not limited to intellectual property rights and/or trade secret rights.
(iii) You agree that we may but are not obligated to: filter any Content on the Website (e.g. User Content or otherwise) in any manner we determine, including but not limited to, by deleting or replacing expletives or other harmful or offensive language; refusing to display any Content; removing Content from the Services for any reason or no reason, as determined by us; and/or disclosing any Content and the circumstances surrounding the use thereof, to any third party for any reason or no reason, as determined by us. We are not responsible for, and will have no liability for, the removal or non-removal of any Content from the Services.
(d) Transmitted by Users or Others. We do not endorse and are not responsible for (i) the Content provided by other Users, (ii) the accuracy or reliability of any opinion, advice, statement, or Content made through the Services, (iii) any Content provided on Linked Sites, or (iv) the capabilities or reliability of any items or services obtained from a Linked Site. There are risks involved with relying on information on the Services, and you expressly assume those risks when using the Services. Under no circumstance will we be liable for any loss or damage caused by your reliance on any Content, items, other information, or services obtained through the Website or a Linked Site.
- 8. Classifieds. We may allow you to Transmit and post Content on or Website in the form of a classified ad relating to performing services, or offering to buy or sell an item or service (a “Classifieds”). Classifieds will be made publicly available via our Services. Other Users will be able to arrange a transaction with you, on terms agreed to by the buyer and seller. We shall have no responsibility relating in any way to transactions between Users that are buyers or sellers of goods relating to Classifieds. You acknowledge and agree that you are responsible for any and all Classifieds you Transmit. Accordingly, you represent and warrant that any Classifieds you Transmit and the provision of services or selling of any goods in a Classified you Transmit: (i) will be in compliance with all applicable laws, tax requirements, and regulations that may apply to any such transaction, and (ii) will not conflict with the rights of third parties. We assume no responsibility for a User’s compliance or lack of compliance with any applicable laws, rules or regulations in connection with a Classified or otherwise. We reserve the right, at any time and without prior notice, to delete any Classified for any reason or no reason.
- 9. Payment and Refunds.
(i) In connection with any Deals or other services or items relating to the Website, you agree to pay us the amounts displayed on the Website or in an applicable purchase order, together with any shipping charges that may apply to your transaction with us, each as determined by us. The policies and prices that are disclosed to you when you purchase are a part of these Terms.
(ii) In the case of Locations, we will remit fees received by Users in connection with Deals that have been redeemed, less our agreed upon service fee and payment processing fees (as specified on the Website at the time of order), on a monthly basis in a manner as determined by us, so long as we determine in our sole discretion each Deal has been properly redeemed in accordance with these Terms. Locations agree we shall retain our service fee and payment processing fees (as specified on the Website at the time of order), in exchange for our services provided in connection with Deals and the Users who purchase Deals via our Website.
(b) Payment Processing.
(i) Generally. You authorize us to charge your chosen payment method (credit card, debit card, et cetera) in connection with all fees, costs, and other amounts incurred by you in the Services, as determined by us. In connection with any fees, costs, and other amounts paid by you, you agree: (a) to only provide valid and current payment information; (b) that we may use the tools, software or services of the then-current payment processor (currently, Paypal, Inc., “Payment Processor”) used by us in connection with the Services to process fees, costs, and other amounts as well as transactions on our behalf; (c) to promptly pay all amounts which are due and payable to us upon demand; and (d) to abide by the terms and policies of the our payment processor. We are not responsible or liable for any activities or conduct of our Payment Processor, and you agree to hold us harmless, indemnify, defend, and expressly release us, from any and all liability relating to the conduct of our Payment Processor. All amounts shall be paid in US Dollars. We do not offer refunds or returns of any amounts paid by you in connection with the Services.
(ii) Location Transaction Fees. In connection with payments to Locations relating to sales of Deals, the Location and we agree that each party shall bear the payment processing fees charged by our Payment Processor pro-rata in proportion to the percentage of the fees relating to the Deals that are split between the Location and us, each as determined by us.
(c) ALL SALES FINAL. YOU AGREE ALL PURCHASES ARE FINAL AND NON-REFUNDABLE. YOU ACKNOWLEDGE THAT WE ARE NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON.
- 10. Updates. You agree that we may (and reserve the right to) modify, update, alter and/or discontinue the Services, Content, and/or Website, in whole or in part, with or without notice at any time, as determined by us in our sole discretion.
- 11. Intellectual Property.
(a) Trademarks. FLOATATION LOCATIONS, FLOATATIONLOCATIONS.COM and all other graphics, logos, page headers, button icons, scripts, service names and other Content that we use, manage or control are trademarks, registered trademarks or trade dress of ours or our subsidiaries, officers, employees, independent contractors, suppliers, representatives, licensors, licensees, successors, assigns, agents, partners, or other affiliate (collectively “Affiliates”) in the United States or other countries or both. No one may use these trademarks or trade dress in connection with any product or service that is not our product or service without our express written permission. All other trademarks that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to or sponsored by us or any of our Affiliates.
(b) Copyright. Except in the case of Content under license to us, we claim a copyright, and all copyright protection afforded, under international, United States and the State of New Jersey laws to all text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, software (ours or our software suppliers), and all other Content on the Services. The compilation of all Content on the Services is our exclusive property, and it is similarly protected. We also claim a copyright, and all copyright protection afforded, under international, United States and the laws of the State of New Jersey to all material described in the trademarks section above. Your access to all information and Content located on the Services is strictly permitted through the license granted to you under these Terms. Except for the license granted to you in Section 2 of these Terms and for the licenses granted to us in these Terms, all rights, title and interest in Content, in all languages, formats and media throughout the world, including all copyrights, are and will continue to be the exclusive property of ours and other parties. Except as permitted by these Terms, you are prohibited from modifying, copying, distributing, displaying, publishing, selling, licensing, creating derivative works, or otherwise exploiting any Content available on or through the Services without our prior written permission, or in the case of Content owned by a third party, without first receiving permission from the owner of that Content. You may not alter or remove any trademark, copyright or other notice from copies of the Content.
(c) Infringement Claims. We respect the intellectual property of others and ask that Users do the same. In connection with the Services, we have adopted and implemented a Digital Millennium Copyright Act (“DMCA”) policy respecting intellectual property that provides for the removal of any infringing or unauthorized materials and for the termination of a User’s ability to use our Services, in appropriate circumstances, if we determine that User is infringing on the intellectual property rights of others. If you believe that a User is, through the use of the Services, unlawfully infringing by submitting unauthorized Content, and wish to have the allegedly infringing or unauthorized material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512) must be provided to our designated copyright agent (“Designated Agent”): your physical or electronic signature; identification of the works or rights that you claim to have been infringed; identification of the Content on the Services that you claim is infringing and that you request us to remove; sufficient information to permit us to locate such Content; your address, telephone number, and e-mail address; a statement that you have a good faith belief that use of the objectionable Content is not authorized by the copyright or other rights owner, its agent, or the law; and a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright or other right that has allegedly been infringed or violated or that you are authorized to act on behalf of the copyright or other rights owner. Note that, pursuant to 17 U.S.C. § 512, any misrepresentation of material fact in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
Our Designated Agent is:
Dunlap, Bennett & Ludwig PLLC
ATTN: David Ludwig
211 Church Street, SE
Leesburg, VA 20175
- 12. Use Restrictions. You may not use or plan, encourage or help others to use the Services for any purpose or in any manner that is prohibited by these Terms or by applicable law. In using the Services, you agree at all times that you shall not: (a) infringe on the copyrights or other intellectual property rights of Floatation Locations, a User, or a third party (b) copy, distribute, or modify any part of the Services without our prior written authorization; (c) Transmit inappropriate, inaccurate, false, misleading, or objectionable Content to the Services, as determined by us; (d) Transmit any medical records or other health information in violation of any HIPAA enforcement rule, or any related state law concerning the dissemination of medical information; (e) Transmit any Content which contains software viruses, or other harmful computer code, files or programs; (f) Transmit Content that misrepresents facts; (g) make threats or use profanity; (h) harass, stalk or intimidate other Users; (i) manipulate or exclude identifiers in order to disguise the origin of any Content; (j) disrupt the networks connected to the Services, including but not limited to by: attempting to probe, scan or test the vulnerability of the Services, attempting to breach security or authentication measures without proper authorization, or attempting to interfere with the Services or a User, by means such as overloading, ‘flooding’, ‘mailbombing’ or ‘crashing.’; (k) circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content or that enforce limitations on use of the Services; (l) collect Content, personally identifying information, and/or other information from the Services, or otherwise access the Services, by using any automated means, including but not limited to, ‘robots’, ‘spiders’, ‘scrapers’ and ‘offline readers’, without our prior written approval which we may withhold in our discretion; (m) modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, sublicense, sell, or distribute the Services; (n) rent or lease any rights in the Services in any form to any third party or make the Services available or accessible to third parties; (o) use any communications systems provided by the Services to send unsolicited or unauthorized commercial communications, including but not limited to by email, SMS, MMS, or any other means; (p) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices displayed on the Services; (q) mislead or attempt to mislead or defraud or attempt to defraud or conceal any information relating to Content or other information that you provide to us; (r) link, deep link, ‘frame’ or ‘mirror’ any part of the Services without our prior consent; or (s) use the Services to violate any applicable laws, rules or regulations, or for any unlawful, harmful, or inappropriate purpose, or in any manner that breaches these Terms or is otherwise objectionable, as determined by us in our sole discretion.
- 13. Termination, Restriction, and Suspension.
(a) Termination By You. You may cancel your Account at any time for any reason or no reason by using your Account dashboard or notifying us in writing (email to firstname.lastname@example.org is acceptable). Upon cancellation of your Account, access to certain features of the Services may be restricted. Termination of your Account will be effective within a reasonable time after we receive notification of your desire to cancel, as determined by us.
- 14. DISCLAIMERS. THE WEBSITE, CONTENT, AND SERVICES ARE PROVIDED ‘AS IS’, ‘AS AVAILABLE’ AND ‘WITH ALL FAULTS’ WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SERVICES, INCLUDING BUT NOT LIMITED TO PHYSICAL INJURY OR DEATH AS WELL AS DAMAGES TO PERSONAL PROPERTY. WITHOUT LIMITING THE FOREGOING, WITH RESPECT TO THE WEBSITE, AND/OR THE SERVICES, FLOATATION LOCATIONS EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, ACCURACY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUIET TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FLOATATION LOCATIONS MAKES NO WARRANTY THAT THE WEBSITE AND/OR CONTENT WILL MEET YOUR NEEDS, EXPECTATIONS, BE TO YOUR SATISFACTION, OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE, BUG-FREE, OR MALWARE-FREE BASIS. FLOATATION LOCATIONS MAKES NO WARRANTY REGARDING THE QUALITY OF THE WEBSITE OR CONTENT, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE WEBSITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FLOATATION LOCATIONS OR THROUGH THE WEBSITE OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
- 15. Release and Waiver of Claims. To the maximum extent permitted by applicable law, YOU ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, AND DISCHARGE all claims, actions, demands, suits, or proceedings (“Claims”) against US and our AFFILIATES, including any and all liability for actual and/or consequential damages, costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature arising from or in any way related to: (A) THE SERVICES aND/or THESE TERMS; (B) CONTENT ANd/OR YOUR USER CONTENT; (c) YOUR TRANSACTIONS WITH LOCATIONS AND/OR OTHER USERS (including but not limited to INVOLVING Deals); (d) any inaccuracy, untimeliness or incompleteness of a USER’S representations OR WARRANTIES; and/or (e) any inaccuracy, untimeliness, or incompleteness of ANY AND ALL CONTENT obtained or accessed by or through the Services. FURTHER, if YOU ARE A RESIDENT OF THE STATE OF CALIFORNIA, you waive your rights under California Civil Code Section 1642, which states, “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.” You understand that any fact relating to any matter covered by THESE TERMS may be found to be other than now believed to be true, and accept and assume the risk of such possible differences in fact. In addition, you expressly waive and relinquish any and all rights which you may have had under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.
- 16. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA. IN NO EVENT SHALL WE BE LIABLE FOR NY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO (A) THE SERVICES aND/or THESE TERMS; (B) CONTENT ANd/OR YOUR USER CONTENT; (c) YOUR TRANSACTIONS WITH LOCATIONS AND/OR OTHER USERS (including but not limited to INVOLVING Deals); (d) any inaccuracy, untimeliness or incompleteness of a USER’S representations OR WARRANTIES; and/or (e) any inaccuracy, untimeliness, or incompleteness of ANY AND ALL CONTENT obtained or accessed by or through the Services; AND/OR (F) ANY OTHER ASPECT OF OUR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (BREACH OF CONTRACT, A BREACH OF WARRANTY, NEGLIGENCE, PRODUCTS LIABILITY, STRICT LIABILITY, OR OTHERWISE) IN EXCESS OF THE GREATER OF (I) ALL SUMS YOU PAID TO US IN CONNECTION WITH THE SERVICES, OR (II) $125. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
- 17. Dispute Resolution.
(a) In the event that any dispute arises with respect to the Services, these Terms, or any of our Policies, such dispute shall be resolved by binding arbitration in accordance with the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association, in Ocean County, New Jersey. The arbitrator will apply and be bound by these Terms, apply applicable law and the facts, and issue a reasoned award, if appropriate. The arbitrator shall apply the laws of the State of New Jersey in a manner consistent with the Federal Arbitration Act and applicable statutes of limitations. Any court action between you and us shall take place in the state courts located in Ocean County, New Jersey or in the U.S. District Court for the District of New Jersey, as the case may be. You shall be liable for and shall reimburse us for our expenses and fees, including attorneys’ fees, in the event any arbitration or litigation arises between us and you. By using the Services, you irrevocably agree and consent to be bound to personal jurisdiction of and venue selection in the state courts located in Ocean County, New Jersey or in the U.S. District Court for the District of New Jersey as the case may be, whether either arbitration or litigation arises between us and you. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(b) YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS USER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS WE AGREE OTHERWISE, THE DECISION-MAKER MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE DECISION-MAKER MAY AWARD RELIEF ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIMS. ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
(c) You agree that irreparable harm to us would occur in the event that any of the provisions of these Terms were not performed fully by you or were otherwise breached by you, and that money damages are an inadequate remedy for breach of the Terms because of the difficulty of ascertaining and quantifying the amount of damage that will be suffered by us in the event that these Terms are not performed in accordance with its provisions or is otherwise breached. It is accordingly hereby acknowledged that, notwithstanding any provision of this Section\, we shall be entitled to petition the courts mentioned in Section 17(a) for an injunction or injunctions to restrain, enjoin and prevent a failure to perform these Terms by you, without positing bond or other security, and to enforce specifically such provisions of these Terms.
(d) Dispute Resolution Severability. If a court decides that any term or provision relating to our ability to submit any above-mentioned dispute to arbitration or to the above class action wavier according to this Section 16, the parties agree to litigate any such dispute according to Section 17(a) above and to replace any other such terms or provisions of Section 17(a) or Section 17(b) with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Section 16 shall be enforceable as so modified. In the event of any such severing, the remainder of these Terms will continue to apply.
- 18. Indemnification.
(a) Generally. You agree to indemnify, defend, and hold harmless us and our Affiliates from and against any and all Claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of, under, or relating to: your use, misuse, or inability to use the Services; any infringement of a third party’s rights (including but not limited to intellectual property rights); a Deal; a breach of alleged breach of these terms; your interactions with a User; a breach of a representation or warranty made by you; your User Content; any defamatory, offensive, fraudulent, or illegal use of the Services by you; any improper disclosure of Content by you; and any violation by you of these Terms or any of our other Policies.
(b) Additional Location Indemnification. In addition to Section 18(a), each Location agrees to indemnify, defend, and hold harmless us and our Affiliates from and against any and all Claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of, under, or relating to: any claim by any local, state or federal governmental entity for unredeemed Deals or unredeemed cash values of Deals or any other amounts under any applicable abandoned or unclaimed property laws law; and any claim arising out of or relating to the products and services provided by Location.
- 19. Survival. All provisions of these Terms which must or which in accordance with its terms are intended to survive the earlier termination or expiration of these Terms, your Account, and/or any license to access or use any portion of the Services granted by these Terms shall survive the earlier termination or expiration thereof.
- 20. Advertisers. With respect to any Affiliate, User, or third party that engages us to Transmit ad Content on the Website, including but not limited to by placing banners, Location listings, and other ads on the Website (each an “Advertiser”), each Advertiser and any ads Transmitted by the Advertiser are subject to the terms of this Section 20 in addition to being subject to all other provisions of these Terms:
(a) Definitions. Capitalized terms in this Section 20 shall have the meanings set forth below or elsewhere in these Terms: (i) “Publisher” means Floatation Locations LLC; (ii) “Ad Order” is the order form completed by an Advertiser relating to Transmitting ad Content on the Website for a fee; and (iii) “Impression” is the appearance of ad Content on the Website.
(b) These Terms are incorporated into each Ad Order between the Publisher and the Advertiser whether or not the Ad Order or other documentation makes reference to them. Receipt of any communication confirming the Ad Order will be deemed acceptance of these Terms.
(c) Our Obligations. We shall provide the services described in the Ad Order, as determined by us. We may provide you with an estimate of usage statistics. However, we do not make any guarantee of usage levels, Impressions served or click-through rates for any particular ad Content.
(d) Representations. Advertiser represents and warrants that the Advertiser has the right have the right to publish the ad Content that Advertiser Transmits on our Website and that the same will not infringe on any third party’s rights including, without limitation, intellectual property rights. Advertiser agrees that Advertiser assumes full responsibility for the terms (including, without limitation, product description, price and compliance with all applicable laws and regulations) of any offer of sale of goods or services displayed in the ad Content by the Publisher.
(e) Ad Restrictions. Advertiser acknowledges that all ad Content is subject to the approval of the Publisher. Publisher reserves the right to reject or cancel any ad Content, Ad Order, space reservation or position commitment at any time, or remove any ad Content from the Website, or reject any URL link embodied within any ad Content. Advertiser agrees not to collect or use personal information through the ads Content on the Website without permission from the User. If Advertiser does collect data with permission from Users, Advertiser represents and warrants that it has done so in accordance with applicable laws, rules, and regulations.
(f) Indemnification. Advertiser agrees to indemnify, hold harmless, and defend the Publisher against any and all expenses, damages costs (including attorneys’ fees and costs) and losses of any kind incurred by the Publisher in connection with any claims actual or threatened, of any kind (including, without limitation, any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, breach of any statutory or regulatory duty, fraud or breach of any industry advertising codes or sales practices) arising from the Advertiser’s ad Content and/or any material of the Advertiser displayed on the Website.
(g) Payment. Ad Orders may specify a monthly recurring payment amount or a pay per click fee based on the previous month’s visitor click traffic as set forth on the Ad Order and these Terms and Advertiser agrees to pay Publisher the same in accordance with these Terms. In the event that Advertiser’s Ad Order specifies a pay per click fee in connection with Advertiser’s ad Content Transmitted on the Website, Advertiser agrees to pay Publisher the amount per click specified on the Ad Order for each one visitor from a unique IP address that redirected or linked to Advertiser’s website from Publisher’s Website, as determined solely and exclusively by Publisher; provided, however, Advertiser may set a maximum click limit for given ad Content, as set forth on the Website. In the event Advertiser sets a maximum click limit for given ad Content, once that limit is reached, Advertiser’s ad Content will be downgraded to a “free text ad” (as specified on the Website) and no further charges will accrue until the next billing month, as determined by Publisher. All amounts owed in connection with Advertiser’s ad Content Transmitted on the Website will be invoiced using Publisher’s Payment Processor on the first day of each month during the term specified in the Ad Order, as set forth on the Ad Order.
- 21. Contacting You. By using the Services, you agree that we and our Affiliates may provide you with any notices or other communications about the Services electronically: (a) via email (in each case to the address that you provide), SMS message, or telephone call (in each case to the phone number that you provide), or (b) by posting to the Website. For notices made by email, the date of receipt will be deemed the date on which such notice is Transmitted. We will use best efforts to honor a User’s request to opt out of promotional messages, but under no circumstances will we be liable for Transmitting any Content to Users.
- 22. Severability; No Waiver; Assignment. The representations and warranties and/or covenants set forth herein are each to be construed as a separate agreement, independent of any other provisions of these Terms. Further, the invalidity or unenforceability of any provision, word, phrase, clause, sentence, paragraph or section of these Terms shall in no way affect the validity or enforceability of any other provision, word, phrase, clause, sentence, paragraph or section of these Terms, and any such invalid or unenforceable provision that is overbroad shall be deemed narrowed to the broadest term permitted by applicable law and shall be enforced as narrowed. If one or more of the provisions in these Terms is deemed invalid or unenforceable, then the remaining provisions will continue in full force and effect. Our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us as determined by us.
- 23. Our Relationship with You. With respect to you, we are an independent contractor only. Nothing in these Terms shall be deemed or is intended to be deemed, nor shall it cause, you and Floatation Locations to be treated as partners, joint venturers, or otherwise as joint associates for profit, or either you or us to be treated as the agent of the other.
- 24. Third Parties. From time to time, we may engage third parties or Affiliates to assist us in providing certain aspects of the Services, including but not limited to marketing functions. You agree that we may engage such third parties in providing Services to you, as determined by us.
- 25. Entire Agreement; Modification. These Terms together with our Polices any other document referenced herein, constitutes the entire understanding between us and you with respect to the subject matter hereof. You agree that we may amend, modify, or alter these Terms and/or our Polices at any time in our sole discretion. We will notify you about changes to these Terms by placing the updated Terms on the Website. You agree that your use of the Services after such notification will constitute acceptance by you of such changes to the Terms.
- 26. Construction. Headings in these Terms are for convenience only, and shall not govern the meaning or interpretation of any provision of these Terms. Whenever the context requires, all words, including but not limited to defined capitalized terms, will include the masculine, feminine, and neuter, and each word will include the singular form, plural form, and other conjugations of that word. The word “or” connotes any combination of all or any of the items listed (e.g. in the same manner as “and/or”). The word “including” and its syntactic variants mean “includes, but is not limited to” and corresponding syntactic variant expressions.
- 27. Compliance. You represent and warrant that you shall comply with all applicable laws, statutes, ordinances, and regulations regarding use of the Service. We will cooperate with law enforcement agencies in any investigation of alleged unlawful activity of which we are made aware of regarding the use of our Services and may contact law enforcement if we are made aware of any use of our Services which potentially violates any applicable laws, statutes, ordinances, or regulations. The Services are designed and targeted to Users who reside in the United States. We make no representation that the Services are operated in accordance with the laws or regulations of, or governed by, other nations. By accessing the Services you certify that you meet the age and other eligibility requirements for use of the Services. Those who access or use the Services do so at their own volition and are entirely responsible for compliance with applicable law. Further, you agree to comply with all laws, restrictions and regulations relating to the export of items, Content, and the Services. For purposes of the U.S. Export Administration Act (“Export Laws”), you state you are: (a) not a citizen, or otherwise located within, an embargoed nation (including without limitation the Office of Foreign Assets Control (“OFAC”) comprehensively embargoed countries of Iran, Syria, Cuba, North Korea and Sudan and certain Specially Designated Nationals listed by OFAC as updated from time to time and (b) not otherwise prohibited under the Export Laws from receiving the Services and Content.
- 29. Feedback. If you have questions, comments or a complaint about these Terms, you may send a written notice to us at: email@example.com.
Effective December 15, 2017
- A. About Us:
- 1. Information We Collect.
(a) Personal Data. Personal Data and other information are collected from you when you create an Account with us or when you otherwise disclose Personal Data or other information to us or third parties when using the Services. “Personal Data” means any information that may be used to identify an individual. Personal Data does not include aggregate information. To use certain aspects of our Services you may be asked to provide us the following information: your name, email address, payment information, and related information.
(b) Location Data. We and third parties with whom we may partner may collect location information in relation to a User’s Device and use of the Services (“Location Data”) with respect to you. If you use the Services, then you are providing consent to collect Location Data such as the physical location of your Device which will be used to provide you with certain features of the Services. This Location Data is collected anonymously in a form that does not personally identify you. Location Data is aggregated with data from Devices of other Users to enhance the quality of Content Users provide to us and to enhance the quality of the Services we provide to you. We may also share your Location data with third parties. Location Data is shared anonymously in a form that would not personally identify you.
(c) Use Data. When you send or receive Content using our Services, we collect data about that Content.
(d) Log Information. When you browse our Services, you do so anonymously, unless you have previously created an Account with us. However, we may log your IP address to give us an idea of which part of our Services you visit and how long you spend there. However, we do not link your IP address to any Personal Data unless you have logged into our Services. Also, our Services may use a standard technology called a ‘cookie’ to collect information about how you interact with our Services. Please see Section 7 below for more information.
(h) Device Information. We may collect data about the computer or Device you use to access our Services, including the hardware model, operating system and version, MAC address, unique device identifier (‘UDI’), phone number, and mobile carrier information.
(i) Tracking Technologies. We collect information through technology, such as cookies, flash cookies and web beacons, including when you visit our Services or Linked Sites. Please see Section 7 below for further information regarding tracking technologies.
(j) From Third Parties. We acquire information from other trusted sources to update or supplement the information you provided or we collected automatically. Local law may require that you authorize the third party to share your information with us before we can acquire it.
- 2. How We Use It. We use your Personal Data to:
(a) enable us to provide the Services to you;
(b) notify you regarding Services, your Account, or fees;
(c) increase the usability of the Services;
(d) provide information about promotional offers;
(e) deliver advertisements on our Services and on the websites of third parties, to improve and monitor advertising, and to provide you with targeted advertisements;
(f) investigate objectionable use of the Services;
(g) respond to requests for assistance from our customer support team;
(h) analyze trends and use of our Services; and
(i) carry on our business, as determined by us.
- 3. Who We Share It With.
We will share Personal Data with third parties when:
(a) When you have enabled us to share your Personal Data with another company or our Affiliates by using the Services. Once we share your Personal Data with another company, the information received by the other company becomes subject to the other company’s privacy practices.
(b) When necessary, as determined by us in our sole discretion, to provide Services to you. This includes for the uses listed in Section 2 above.
(c) When required by law or by court order.
(d) To protect our rights and property, to prevent fraudulent activity or other deceptive practices of Users or third parties, or to prevent harm to others.
(f) To perform tasks for us or in connection with our business, as determined by us. We may use third parties to help operate the Services and perform other aspects of the Services. You agree we may share your Personal Data with our Affiliates and other third parties that provide services to us in connection with our business (such as website or database hosting companies, address list hosting companies, email service providers, analytics companies, distribution companies, and other similar service providers that use such information on our behalf). Unless otherwise stated, these third parties do not have any right to use the Personal Data we provide to them beyond what is necessary for them to assist us, as determined by us.
- 4. Your Choices.
(a) Any Content that you Transmit to a public portion of our Website may be searchable by other Users and third parties as well as subject to use by others. Once you have made Content viewable to others, that Content may be re-shared by others and we have no control or liability regarding how others may use the Content you Transmit. We make every effort to prevent undesired disclosure of Content or Personal Data. However, we are not responsible for how others may use Content or Personal Data that is disclosed by you to Users or third parties using the Services.
(b) The Services may allow you to share Content on Social Media Profiles. If you use such functionality of the Services, then you should use caution when determining to whom you want to make Content available. If you choose to Transmit Content on third party Social Media Profiles, then, depending on the privacy settings of your Social Media Profiles, it is possible that persons in addition to those to whom you intended to view that Content could have access to that information. Accordingly, you should use caution when sharing Content via third party Social Media Profiles and you should carefully review the privacy practices of such Social Media Profiles.
(c) If you remove information, Personal Data, or Content that you Transmit to the Services, copies may remain viewable in cached and archived pages of the Services, or if other Users or third parties copied or saved that information.
(d) You may opt out of targeted advertisements from some third party companies by visiting the Network Advertising Initiative or Digital Advertising Alliance Consumer Choice Page, which provide simple ways to opt out of ad targeting from participating third party companies. When you opt out, your selection will be stored in a cookie that is specific to your Device or computer and the web browser you are using. The opt-out cookie has an expiration date of five years. If you delete the cookies on your computer or Device, you will need to opt out again.
(e) We will contact you from time to time for marketing purposes. Unless you have opted out, this could include contacting you by phone or email. You may opt-out of receiving marketing communications from us by the following means: (i) contacting us at firstname.lastname@example.org; or (ii) following the instructions in the communication.
- 5. Security of Your Personal Information. We endeavor to protect your data from loss, misuse, unauthorized access or disclosure, alteration, or destruction. Personal Data is stored in password-controlled servers with limited access. However, you have a significant role in Account security. Someone may see or edit your Personal Data if that person gains access to your username and password, so do not share these with others. WE TAKE THESE PRECAUTIONS IN AN EFFORT TO PROTECT YOUR INFORMATION AGAINST SECURITY BREACHES. HOWEVER, THIS IS NOT A GUARANTEE THAT SUCH INFORMATION MAY NOT BE ACCESSED, DISCLOSED, ALTERED, OR DESTROYED BY BREACH OF SUCH FIREWALLS AND SECURE SERVER SOFTWARE. BY USING THE WEBSITE, YOU ACKNOWLEDGE THAT YOU UNDERSTAND AND AGREE TO ASSUME THESE RISKS.
- 7. Tracking Technology.
- 8. Compliance with the Children’s Online Privacy Protection Act. We recognize the need to provide further privacy protections with respect to Personal Data we may collect from Children who use our Services. For that reason, we make every effort to comply with the regulations of the Children’s Online Privacy Protection Act of 1998 (15 U.S.C. § 6501 – 6506). We never collect or maintain Personal Data through the Services from those we actually know are under thirteen years of age, and no part of the Services are structured to attract anyone under thirteen years of age. We expressly disclaim, and you expressly release us from, any and all liability whatsoever for any controversies, claims, suits, injuries, harm, loss, penalties, damages, arising from and/or in any way related to any misrepresentations regarding the age of any User. We reserve the right to suspend and/or terminate with or without notice the Account of User who we believe has provided false information when registering for and/or using the Services and each User agrees to make no further use of the Services after termination and/or during suspension.
- 10. Advertisement Revenue. The Services may display advertisements operated by us, our Affiliates, and/or third parties. Some of the advertisements we display are targeted to you based on your online behavior and your click habits and we may receive compensation based on your clicks.