Last Revised: March 2, 2021
Please note that Section 13 contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree (a) to resolve all disputes with us through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) that you waive your right to participate in class actions, class arbitrations, or representative actions. You have the right to opt-out of arbitration as explained in Section 13.
ACCESSING AND USING THE SERVICES
The Services allow consumers (“Users”) to withdraw funds that they have earned, won or are otherwise entitled to collect from companies (“Partners”) with whom Prizeout has partnered, in the form of digital gift cards or other stored value mechanisms (“Gift Cards”) offered by a variety of retailers and brands (“Merchants”). In order to use the Services, you must be eighteen (18) years of age or older, and a resident of the United States, the United Kingdom, the European Union or Canada.
Subject to your compliance with these Terms, you are hereby granted a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services for your own personal, non-commercial use. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service or other actions that Prizeout, in its sole discretion, may elect to take. We reserve the right to enhance, modify or update our Services, or to suspend or stop providing all or any portions of our Services, at any time with or without notice to you.
Prizeout reserves the right to, and may, terminate or temporarily suspend your access to all or any part of the Services, without notice, for conduct that Prizeout believes violates these Terms or any of our policies, procedures, rules, regulations or guidelines, or for any other reason in our sole discretion. If you breach any of the provisions of these Terms, all rights granted to you by Prizeout pursuant to these Terms will terminate automatically.
In connection with your use of the Services, you may receive Gift Cards from us, delivered electronically on behalf of Partners and Merchants. Your Gift Card, and your use thereof, will be governed by the applicable terms and conditions. Please consult your Gift Card for additional information, including information regarding how to obtain a copy of the Gift Card’s terms and conditions from the applicable Merchant. We reserve the right to correct any errors, inaccuracies or omissions (including after a Gift Card order has been submitted) and to change or update information at any time without prior notice. You acknowledge that Prizeout does not make any warranties with respect to your Gift Card balance and is not responsible for any unauthorized access to, or alteration, theft, or destruction of a Gift Card code that results from any action by you or a third party. You also acknowledge that we may suspend or prohibit use of your Gift Card if your Gift Card code has been reported lost or stolen, or if we believe your Gift Card balance is being used suspiciously, fraudulently, or in an otherwise unauthorized manner. If your Gift Card code stops working, your only remedy is for us to issue you a replacement Gift Card code. By purchasing a Gift Card, you represent and warrant to Prizeout that your use of the Gift Card will comply with these Terms and all applicable laws, rules and regulations, and the Gift Card will not be used in any manner that is misleading, deceptive, unfair or otherwise harmful to consumers. Gift Cards cannot be used to purchase other gift cards, reloaded, resold, used for unauthorized marketing, sweepstakes, advertising, or other promotional purposes, redeemed for more than face value plus any specified bonus amounts, transferred for value, redeemed for cash, or returned for a cash refund (except to the extent required by law). Gift Cards do not expire, and Prizeout will not assess a service fee or dormancy fee with respect to a Gift Card. In the event that you order a Gift Card that requires a currency conversion, we will display a foreign exchange rate in the Widget and apply such rate to the related transaction. We reserve, on behalf of the applicable Merchant or Partner, the right to make a change to or refuse any Gift Card order. In the event that we make a change to or cancel an order, we will attempt to notify you by contacting you at the email address you provided to the applicable Partner. All issuances of Gift Card are final, and are not eligible for return, refund or exchange.
To use certain portions of the Services, you may need to create an account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us at [email protected] if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account.
PRIVACY AND SECURITY
RESTRICTIONS ON YOUR USE OF THE SERVICES
You are not permitted to violate any applicable law, contract, intellectual property right or other third party right or commit a tort, and you are solely responsible for your conduct while using the Services. You will not:
- download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services;
- duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;
- use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
- distribute any information about Prizeout or the Services to any third parties in order to compete with Prizeout or the Services, or engage in competition with Prizeout with respect to any products or services currently offered by Prizeout or offered at any time by Prizeout during the period when you accessed or otherwise used the Services;
- exploit the Services for any commercial purpose, including without limitation to communicate or facilitate any commercial advertisement or solicitation, or to sell, resell or commercially use the Services (including renting, leasing, or sublicensing your access to the Services to another person or entity);
- access or use the Services other than for their intended purpose and in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party’s access to or use of the Services or use any device, software or routine that causes the same;
- develop or use any applications that interact with our Services without our prior written consent;
- attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other Users, or the computer systems or networks connected to the Services;
- circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;
- use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, mines, scrapes or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
- introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;
- violate any applicable law or regulation in connection with your access to or use of the Services; or
- access or use the Services in any way not expressly permitted by these Terms.
The Services, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that Prizeout and/or our licensors and third party vendors (together, “Third Party Service Providers”) own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our Third Party Service Providers reserve all rights in connection with the Services and its content, including, without limitation, the exclusive right to create derivative works. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the rights granted herein and may violate the intellectual property rights of Prizeout and its Third Party Service Providers.
Prizeout’s trademarks and our logos, our product and service names, our slogans and the look and feel of the Services are trademarks of Prizeout and may not be copied, imitated or used, in whole or in part, without our prior written consent. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us. Nothing contained in the Services should be construed as granting any license, interest or right of any kind to use any trade names, trademarks, service marks, or logos appearing on the Services without the express prior written consent of the owner.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of Prizeout, and Prizeout may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. We may use Feedback for our internal business purposes, for example, to examine trends or categories or to promote, market, or advertise our products. You acknowledge that we may commercially benefit from use of your Feedback. You hereby assign to Prizeout any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
If you believe that any text, graphics, photos, audio, videos or other materials or works uploaded, downloaded or appearing on the Services have been copied in a way that constitutes copyright infringement, you may submit a notification to our copyright agent in accordance with 17 USC 512(c) of the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing:
- identification of the copyrighted work that is claimed to be infringed;
- identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Services;
- information for our copyright agent to contact you, such as an address, telephone number and e-mail address;
- a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;
- a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and
- the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
Notices of copyright infringement claims should be sent by mail to: Prizeout Corp., Attn: Legal Dept., 33 West 17th Street, 8th Floor, New York, NY 10011; or by e-mail to [email protected]. It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of Users who repeatedly infringe copyrights or intellectual property rights of others.
A User of the Services who has uploaded or posted materials identified as infringing as described above may supply a counter-notification pursuant to sections 512(g)(2) and (3) of the DMCA. When we receive a counter-notification, we may reinstate the posts or material in question, in our sole discretion. To file a counter-notification with us, you must provide a written communication (by email) that sets forth all of the items required by sections 512(g)(2) and (3) of the DMCA. Please note that you will be liable for damages if you materially misrepresent that content or an activity is not infringing the copyrights of others.
THIRD PARTY SERVICES AND MATERIALS
The Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, you acknowledge and agree that Prizeout is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you.
UPDATING THESE TERMS
We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the Site. You waive any right you may have to receive specific notice of such changes or modifications, except as required by law. However, it is your sole responsibility to review these Terms and our other terms and policies from time to time to view any changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms.
DISCLAIMERS AND LIMITATION OF LIABILITY
Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, Prizeout, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and Third Party Service Providers (the “the Prizeout Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Prizeout Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (c) the operation or compatibility with any other application or any particular system or device; and (d) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis. No advice or information, whether oral or written, obtained from the Prizeout Entities or through the Services, will create any warranty or representation not expressly made herein.
TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE PRIZEOUT ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE PRIZEOUT ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE PRIZEOUT ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
By entering into these Terms and accessing or using the Services, you agree that you shall defend, indemnify and hold the Prizeout Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Prizeout Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your access to or use of the Services; or (d) your negligence or willful misconduct.
ARBITRATION AND CLASS ACTION WAIVER
You agree that in the event of any dispute between you and the Prizeout Entities, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.
After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of Prizeout’s services and/or products, including the Services, will be resolved by arbitration, including threshold questions of arbitrability of the Claim. You and Prizeout agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules and such arbitration proceedings will be held in New York County in the State of New York. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and Prizeout are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, you and Prizeout will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court and your claim remains on an individual, non-representative and non-class basis. You and Prizeout agree that the state or federal courts located in New York County in the State of New York shall have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
The arbitrator, Prizeout, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $10,000, Prizeout will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.
You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to us in accordance with in the “Contact Us” section of these Terms. The notice must be sent to Prizeout within thirty (30) days of your registering to use the Services or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with these Terms. If you opt-out of these arbitration provisions, Prizeout also will not be bound by them.
THIRD PARTY BENEFICIARIES
You agree that our Third Party Service Providers may rely upon any provisions in these Terms relating to intellectual property, disclaimer of warranties, limitation of liability, and indemnification, and that the Third Party Service Providers are, for purposes of such provisions, third party beneficiaries of these Terms, with the power to enforce such provisions as applicable.
If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and any rights or obligations hereunder may be assigned by Prizeout but may not be assigned by you without Prizeout’s prior express written consent. No waiver by Prizeout or you of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. These Terms are governed by the laws of the State of New York, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the arbitration venue set forth in Section 13, or if arbitration does not apply, then the state and federal courts located in New York County in the State of New York.